POLICE ARE NOT REQUIRED TO WARN MOTORIST OF UNENFORCEABLE, ENHANCED PENALTIES FOR REFUSING A BLOOD TEST
The PA Commonwealth Court has decided the case of Garlick v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, No. 48 C.D. 2017 (January 3, 2018), holding that the suspension of Garlick’s driver’s license was lawful where the Trooper specifically and accurately warned him about the consequences of refusing a blood test, i.e. – that his license would be suspended. There was no need for the Trooper to have warned him about enhanced criminal penalties for refusing blood testing since the imposition of the enhanced criminal penalties is longer constitutionally permissible.
Garlick was arrested for suspicion of DUI by a Trooper investigating a motor vehicle accident. He was transported to the State Police barracks. There, Trooper read verbatim the warnings contained in DOT Form DL-26B which was amended from the original DL-26 form due the the holding of Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) which held that a state may not impose criminal penalties on a motorist for refusing to submit to a blood test.
As to the specific warnings provided to Garlick, the Trooper informed him that:
- You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code.
- I am requesting that you submit to a chemical test of blood.
- If you refuse to submit to the blood test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months.
- You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to a blood test, you will have refused the test.
Garlick argued that his suspension should be reversed because he was not warned, as required by the Motor Vehicle Code’s “refusal statute,” that his refusal to submit to a blood test would subject him to enhanced criminal penalties under the DUI sentencing statute. He posited that the Trooper was required by statute to warn him that he would be subject to enhanced criminal penalties if he refused a requested blood test and, by doing so, the Trooper would violate his Fourth Amendment rights. This placed the Trooper in a “damned if you do, damned if you don’t” position.
The Commonwealth Court summarized the current state of the law as follows: “A licensee … is no longer subject to enhanced criminal penalties for refusing an officer’s request to test his blood absent a search warrant and, since a licensee is no longer subject to enhanced criminal penalties for refusing a blood test, the General Assembly has now, by amendment, removed from the refusal statute the obligation of an officer to warn a licensee about that consequence.”
The Commonwealth Court then summarized the applicable law at the time the Trooper made the request of Garlick. Specifically, although, at the time Trooper requested Garlick submit to a blood test, the refusal statute still required a warning that Garlick would be subject to enhanced criminal penalties under the DUI sentencing statute for refusing a test of his blood, Garlick could not, as a matter of constitutional law, be subject to such penalties. “Stated simply, enhanced criminal penalties were not a consequence of [Garlick’s] refusing the requested blood test.”
The Court reiterated its previous holdings following Birchfield that Birchfield did not invalidate a civil license suspension based on the argument that a warrant was required to obtain the requested blood test for the criminal prosecution. Additionally, “the effect of Birchfield and the Superior Court cases that followed was to render the criminal penalties warned of in the [refusal statute] as applied to blood testing unenforceable and to effectively sever that section from the rest of the Vehicle Code.”
Lastly, the Garlick Court also made note that the issue of whether a licensee is entitled to the reversal of his license suspension where he was warned of the enhanced criminal penalties for refusing a blood test is still pending with that Court. (See, Renfroe v. Department of Transportation, Bureau of Driving Licensing, No. 1907 C.D. 2016.)
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