REASONABLE SUSPICION NEEDED TO STOP VEHICLE TO INVESTIGATE DUI; WARRANTLESS BLOOD DRAW VALID IF CONSENT IS OBTAINED WITHOUT THREAT OF ENHANCED PENALTY FOR REFUSAL
The PA Superior Court has decided the case of Commonwealth v. Smith, No. 877 WDA 2017 (December 28, 2017), holding that the trial court did not err in refusing to suppress the evidence obtained from the seizure of Smith’s vehicle and the warrantless testing of her blood.
Smith was stopped after the vehicle she was operating almost struck an oncoming police car. After the stop, the Trooper developed probable cause to arrest Smith for DUI. Smith was taken to a Medical Center where the Trooper read the new DL-26 form to her (which did not contain any information regarding enhanced criminal penalties). Smith signed the form because she did not want a license suspension. Blood was drawn and it was subsequently determined that her blood alcohol content was .274.
Smith filed a Motion to Suppress, alleging she was subjected to an unlawful stop of her vehicle and illegal warrantless blood testing. The Motion was denied and she appealed after being convicted, during a stipulated bench trial, of DUI and related vehicle code offenses.
THE STOP
The trial court found that Smith made a “wide and dangerous turn” onto Route 62 and traveled a significant distance in the center of a lined, two-way road, forcing the arresting Trooper, who was approaching from the opposite direction, to apply her brakes to avoid a collision. The trial court found that the Trooper stopped Smith’s vehicle because she believed that Smith was intoxicated, based on Smith’s driving at that time of the early morning.
The Superior Court set forth the standard to be used when determine the legality of a stop for a suspected DUI offense. “When considering whether reasonable suspicion or probable cause is required constitutionally to make a vehicle stop, the nature of the violation has to be considered. If it is not necessary to stop the vehicle to establish that a violation of the Vehicle Code has occurred, an officer must possess probable cause to stop the vehicle. Where a violation is suspected, but a stop is necessary to further investigate whether a violation has occurred, an officer need only possess reasonable suspicion to make the stop. Illustrative of these two standards are stops for speeding and DUI. If a vehicle is stopped for speeding, the officer must possess probable cause to stop the vehicle. This is so because when a vehicle is stopped, nothing more can be determined as to the speed of the vehicle when it was observed while traveling upon a highway. On the other hand, if an officer possesses sufficient knowledge based upon behavior suggestive of DUI, the officer may stop the vehicle upon reasonable suspicion of a Vehicle Code violation, since a stop would provide the officer the needed opportunity to investigate further if the driver was operating under the influence of alcohol or a controlled substance.
Accordingly, the Superior Court concluded that the trial court did not err in finding that the Trooper had reasonable suspicion to stop Smith’s vehicle for suspicion of DUI.
WARRANTLESS BLOOD TESTING WAS NOT UNLAWFUL
In the instant case, Smith did not contest the fact that she consented to submit to the blood test. Instead, she “baldly asserted that her constitutional rights were violated by the warrantless search,” citing to Birchfield v. North Dakota, —U.S.—, 136 S.Ct. 1535 (2016), without providing any further explanation to the trial court. Birchfield prohibits states from imposing criminal penalties for the refusal to submit to blood testing. However, the trial court found Smith’s claim to be meritless as it found the holding in Birchfield inapplicable to this case.
Here, Smith did not take issue with the Trooper’s warning before she consented to the warrantless blood test and, she conceded that neither the Trooper nor the written DL-26 form informed her that she would be subject to enhanced criminal penalties upon refusal of blood testing.
The Superior Court found Smith’s case to be factually distinguishable from Birchfield and previous PA cases applying Birchfield. Specifically, the Superior Court found that the decision in Birchfield was controlling law at the time of Smith’s arrest and, it prohibited states from imposing criminal penalties upon an individual’s refusal to submit to a warrantless blood test. However, as the trial court aptly found in this case, Birchfield was inapplicable since Smith was never advised that she would be subject to enhanced criminal sanctions upon refusal of blood testing. Both parties agree that the Trooper only informed Smith that her driver’s license would be suspended if she refused blood testing. And, Smith signed a [new] DL-26 form, acknowledging that she was advised of this particular consequence. However, this [new] form did not contain any reference to enhanced criminal penalties.
Finally, Smith argued that the “continued existence of the statutory penalty enhancement” vitiated the consensual search and she therefore should have been deemed “presumptively aware” of the enhanced criminal penalty provision as she had been previously convicted of DUI. Though this argument may have provided Smith with a valid challenge to the validity of the consent she provided, the Superior Court found that, because she raised this issue for the first time during the appeal to the Superior Court, her argument was waived.
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