CONSENT TO BLOOD DRAW INVALID: DEFENDANT WAS INFORMED OF ENHANCED PENALTIES FOR REFUSAL AFTER ARREST FOR DUI (MARIJUANA).
The PA Superior Court has recently decided the case of Commonwealth v. Torres, No. 3737 EDA 2016 (December 8, 2017), holding that because Torres consented to a blood draw only after being informed that he faced enhanced criminal penalties for failure to do so, it was proper for the trial court to suppress the results of a warrantless blood test obtained following his DUI arrest.
Torres was stopped by the police who, upon approaching the car, smelled marijuana and observed that Torres’ eyes were bloodshot and he had slurred speech. Torres was arrested and taken to the police station where he was informed that, if he refused to submit to a chemical test and was convicted of, or plead to violating the DUI statute, he would be subject to more severe penalties as set forth in the penalties section of that chapter. Torres submitted to the test and was subsequently charged with three counts of Driving Under the Influence (“DUI”) (general impairment, controlled substance/metabolite, and controlled substance-impaired ability).
Torres filed a Motion to Suppress physical evidence and his statements to police, which the suppression court denied. He did not challenge the voluntariness of his consent on the ground that he was threatened with criminal penalties. He was convicted of two counts of DUI (controlled substance/metabolite, and controlled substance-impaired ability) following a bench trial in Municipal Court, and was sentenced to 72 hours’ to six months’ incarceration. He filed an appeal for a trial de novo in the Court of Common Pleas.
One week later, the U.S. Supreme Court decided Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (June 23, 2016). In Birchfield, the United States Supreme Court held that blood tests taken pursuant to implied consent laws are an unconstitutional invasion of privacy. Specifically, the U.S. Supreme Court stated that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense[,]” and it concluded that Birchfield could not be convicted of refusing a warrantless blood draw following his DUI arrest. Accordingly, Torres filed a Supplemental Motion to Suppress, invoking Birchfield. However, the Commonwealth claimed he was barred from doing so for not having previously raised the issue at the earlier proceeding.
Notwithstanding the Commonwealth’s argument, the trial court granted Torres’ Supplemental Motion to Suppress because (1) Birchfield constituted an “intervening change in the law” such that it could entertain a new motion under the Pennsylvania and local rules of criminal procedure; and (2) Torres had been threatened with criminal penalties for his refusal to consent to the warrantless blood test and the totality of circumstances showed that his consent was involuntary pursuant to Birchfield.
The Commonwealth filed an interlocutory appeal, claiming it was improper for the trial court to permit Torres to move forward on the Supplemental Motion because he failed to raise it in a timely manner. However, the Superior Court noted that a defendant may raise a suppression issue at a trial de novo in certain limited circumstances pursuant to the applicable rules where: (1) the opportunity did not previously exist or (2) the interests of justice otherwise require. And in Torres’ case, the Superior Court agreed with the trial court’s conclusion that the interests of justice required the court to hear Torres’ Motion to Suppress.
As to the validity of Torres’ consent, the Superior Court relied on the precedent established by its decision in Commonwealth v. Ennels wherein the Court held Ennels’ consent invalid because Ennels consented to the blood draw after being informed that he faced enhanced criminal penalties for failure to do so. It thereafter noted that in this case, Torres consented to the blood draw only after being informed that he faced enhanced criminal penalties for failure to do so. Therefore, the trial court did not err in finding that his consent was invalid.
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