Jun 30, 2016 4 min read

A new U.S. Supreme Court decision requires law enforcement to get a warrant to take blood from someone suspected of driving under the influence who doesn’t agree to the test.

The ruling, which bars police in Pennsylvania from threatening drivers with harsher penalties if they refuse a blood test, raises practical and legal considerations for law enforcement agencies and poses questions about existing cases in which defendants refused a blood test or consented while they faced the specter of more serious charges.

A Washington County prosecutor said the district attorney’s office is advising the county’s local agencies about what the ruling means for DUI investigations.

“We’re trying to make sure police departments follow what the Supreme Court has decided, to the best of our understanding of how it applies to our law in Pennsylvania,” said Assistant District Attorney Jerry Moschetta.

A fraction of the 60 to 70 new DUI cases in Washington County courts each month involve blood tests, he said.

The ruling has drawn attention from defense lawyers across the state, said Sean Logue, a Carnegie attorney whose practice includes DUI cases.

“Until the (state) Supreme Court and the Superior Court give us guidance, you’re going to see motions to suppress, motions to dismiss” in cases involving blood tests, he said.

The Supreme Court’s June 23 ruling involved three separate cases, according to SCOTUSBlog, which extensively covers the Supreme Court.

The court vacated the conviction of a North Dakota man who refused to have his blood tested. It sent the case of a second North Dakota man, who failed a blood test when he was told he had to take it, back to state courts.

In the third, the conviction of a Minnesota man who refused to submit to a breath test still stands, deciding warrantless breath tests don’t violate the Fourth Amendment. It reached a different conclusion on blood tests.

“Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test,” Justice Samuel Alito wrote in an opinion. Alito said the ruling does not affect civil penalties.

Richard Long, executive director of the Pennsylvania District Attorneys Association, said he expects agencies that enforce DUI laws to adjust to the changes.

“It’s like we’ve seen many times, that law enforcement is highly adaptable and adapts over time and continues with their mission,” he said.

Pennsylvania criminal law allows the same charges against people who refuse blood tests as it does those with a blood-alcohol content, or BAC, of 0.16 percent or higher – the highest tier of DUI offense.

Opinions differ on whether the ruling applies to pending criminal cases that involve a blood test or refusal to take one and were initiated before June 23.

Moschetta said county prosecutors won’t treat those cases as if the ruling applies without a state court deciding that it does.

“Until a court of law says this opinion applies retroactively, I don’t see anything that says this applies to pending cases,” Moschetta said.

Logue agreed the ruling is unclear on that point. It opens the door for challenges in criminal cases involving refusals to take a blood test, he said. It could raise questions about whether someone consented voluntarily to a blood test.

“I think the remedy is going to be, we’re going to work out (lesser charges of) general impairment for people charged with highest-tier DUIs,” Logue said.

University of Pittsburgh law professor David Harris said he didn’t see how the ruling wouldn’t apply to pending cases.

“My interpretation is that that ruling would apply if that case hasn’t been ruled on, if it’s a pending case,” Harris said.