DESPITE BEING AN OPEN ISSUE WITH THE U.S. SUPREME COURT, THERE IS NO CONSTITUTIONAL RIGHT TO REFUSE TO CHEMICAL TEST REQUEST, ACCORDING TO PA SUPERIOR COURT
The PA Superior Court recently decided the case of Commonwealth v. Carley, No. 1820 WDA 2014 (June 16, 2016), holding that a PA motorist does not have a constitutional right to refuse to consent to chemical testing during a DUI investigation. (NOTE – the United States Supreme Court currently has a number of cases before it addressing this or similar issues, the holdings of which may ultimately call this Superior Court decision into question.)
Carley drove to a convenience store and, while inside, was observed by a clerk who thought him to be under the influence of alcohol. The clerk informed a police officer who was inside the store that Carley had driven into the parking lot and appeared to be intoxicated. The officer continued to observe Carley, called for additional officers. They made contact with Carley and he acknowledged that he had been drinking and became confrontational and argumentative with police. He was thereafter advised he was being arrested for suspicion of driving under the influence of alcohol.
Field sobriety tests could not be performed because Carley began to resist arrest and fought with officers upon being informed that he was being placed under arrest. It took four police officers to place him in handcuffs and he had to be carried to the patrol car after refusing to walk. He was then transported to the hospital where he continued to be non-compliant and combative with commands. He was asked to submit to chemical testing, advised of the penalties for not doing so and subsequently refused to submit to the testing.
Carley was charged with DUI and other offenses after which he filed a Motion to suppress evidence and have the charges against him dismissed. The trial court denied the Motion. Carley was convicted by the Court after a stipulated trial of driving under the influence (“DUI”) general impairment (subjecting him to the enhanced penalties for having refused chemical testing), driving while operating privileges suspended or revoked, and disorderly conduct. He was sentenced to an aggregate term of 18-36 months’ imprisonment and thereafter filed this appeal.
Whether the trial court erred in sentencing Carley pursuant to the applicable DUI laws for his refusal to provide a sample of his blood when doing so (i.e. – refusing) constituted the exercise of a constitutional right?
The PA Superior Court held that there is no constitutional right for a motorist in PA to refuse to consent to chemical testing in a DUI investigation.
The Superior Court determined that Carley’s issue relied on the fact that he was exercising a constitutional right by refusing to consent to chemical testing as, he argued, was set forth in the U.S. Supreme Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013).
The Superior Court first set out to first determine whether McNeely established a constitutional right to refuse to submit to chemical testing in a DUI investigation, noting that cases decided in PA prior to McNeely indicated that no such constitutional right existed.
The Superior Court ultimately concluded that, after reading McNeely, in conjunction with subsequent Pennsylvania case law from the Commonwealth Court, McNeely did not incorporate a constitutional right to refuse to consent to chemical testing in DUI cases.
Accordingly, Carley’s challenge to the constitutionality of the statutory scheme of the DUI laws and the legality, in general, of his sentence was infirm, notwithstanding Carley’s argument that this constituted criminal punishment for his refusal to provide a sample of his blood without a warrant.
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