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REFUSAL TO SUBMIT TO WARRANTLESS BLOOD TEST CANNOT SUBJECT DUI SUSPECT TO ENHANCED PENALTIES

The PA Superior Court has decided the case of Commonwealth v. Giron, 1300 EDA 20016 (January 31, 2017), holding that, pursuant to Birchfield v. North Dakota, 136 S.Ct. 2160 (2016)in the absence of a warrant or exigent circumstances justifying a search, a defendant who refuses to provide a blood sample when requested by police is not subject to the enhanced penalties provided in PA’s DUI statutes.

Police observed Giron’s vehicle sideswipe a legally-parked car. Police stopped his vehicle and observed a strong odor of alcohol emanating from the vehicle and also that Giron had red, glassy eyes and his speech was slurred. When Giron exited the vehicle, the officers noticed that he was unsteady on his feet.

Giron was arrested for suspicion of driving under the influence of alcohol. He refused to provide a blood sample on the scene and, at the police station, refused to read or sign the DL-26 Consent Form and did not submit to a blood test as requested.

Giron was ultimately convicted of a second offense DUI-general impairment (with refusal), careless driving, driving without a license, and fleeing the scene of an accident.

Giron contended on appeal that there was insufficient evidence to convict him of DUI-general impairment because there was no physical or videotape evidence presented at trial. The Superior Court found this argument “wholly frivolous,” noting that “there is no requirement that videotape or physical evidence be presented at trial” and, that “police officers’ testimony is sufficient to prove the elements of DUI-general impairment.”

Due to this being his second DUI offense within ten years, Giron faced a mandatory minimum of five days’ imprisonment and a maximum penalty of six months’ imprisonment without a finding that he refused chemical testing. However, with a finding that he refused chemical testing, Giron faced a mandatory minimum of 90 days’ imprisonment and a maximum penalty of five years’ imprisonment. And, because the trial court found that Giron refused to provide a blood sample, it imposed both the 90-day mandatory minimum and the five-year maximum.

The Superior Court concluded that the evidence was sufficient to convict Giron of DUI-general impairment. However, pursuant to Birchfield, the Superior Court held that, in the absence of a warrant or exigent circumstances justifying a search, a defendant who refuses to provide a blood sample when requested by police is not subject to the enhanced penalties provided in the PA DUI statutes.

Giron’s sentence was therefore illegal his case remanded for re-sentencing.

CASE LINK:  http://www.pacourts.us/assets/opinions/Superior/out/J-A30022-16o%20-%2010297478915903204.pdf?cb=1

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