FAILURE TO SUBMIT QUESTION OF DEFENDANT’S BREATH TEST REFUSAL TO JURY RENDERS ENHANCED SENTENCE FOR DUI UNCONSTITUTIONAL.

Police were investigating a report that Monarch had been driving while intoxicated. They twice asked him to complete field sobriety tests and twice asked him to submit to blood and breath tests. He refused. Following his refusals, police placed him under arrest. He was then transported to the police station where he was again asked whether he would submit to blood or breath testing. Once again, he refused. 

Monarch was charged with DUI. At the conclusion of his trial, the court instructed the jury that if they found Monarch guilty of DUI, they would also have to “make a finding either he did not or did refuse the testing of blood.” The jury ultimately found Monarch guilty of DUI and, they also found he “did refuse testing of blood.” Based on the jury’s finding that he refused to submit to a blood test and his prior convictions for DUI, the grading of Monarch’s DUI conviction was increased. 

Monarch appealed, arguing that the enhanced penalties imposed in his case for a failure to submit to warrantless blood testing violated the Fourth Amendment to the United States Constitution under Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016). He contended that his refusal to submit to breath testing could not be disentangled from his refusal to submit to blood testing as “refusing breath testing and blood testing would have the same result as just refusing blood testing.” In other words, once he refused the blood test, there would be no reason to submit to a breath test as he already would have been subject to the enhanced penalties. 

The Superior Court acknowledged that enhanced penalties for a failure to submit to warrantless blood testing violate the Fourth Amendment to the United States Constitution under Birchfield, but nevertheless determined Monarch’s enhanced sentence was not unconstitutional because he also refused to submit to breath testing. 

The PA Supreme Court held that the Superior Court erred, explaining that although Monarch’s enhanced mandatory minimum sentence may have been constitutional under Birchfieldif the jury made a finding he refused to submit to a breath test, it is clear that was not what occurred in this case. In fact, the jury was specifically instructed to consider whether Monarch “did not or did refuse the testing of blood” and, the jury specifically found Monarch “did refuse testing of blood.” 

Accordingly, because the question of whether Monarch refused breath testing was not submitted to the jury, any sentence based on such a refusal was unconstitutional in violation of Alleyne v. United States, 133 S. Ct. 2151 (2013). The trial court’s order was therefore reversed; Monarch’s judgment of sentence vacated; and, his case was remanded for re-sentencing.

CASE LINK: Commonwealth v. Monarch, No. 1 WAP 2018 (Pa. January 23, 2019) 

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