New Jersey’s Proposed Medical Marijuana Act Amendments

Pennsylvania’s Medical Marijuana Act details in excruciating detail the prescribing limits placed on physicians (the only allowed prescribers). New Jersey’s MMA differs from Pennsylvania at the outset by not limiting prescribers to physicians.  Any medical professional with DEA prescribing authority may dispense Medical Marijuana.

This blog discusses NJ’s proscriptions against all NJ health care professionals who chose to dispense marijuana and patient card holders.  Importantly, the first significant rule is that the list of list of the persons to whom it has issued registry identification cards and their information contained in any application form, or accompanying or supporting document shall be confidential, and shall not be considered a public record and shall not be disclosed except to confirm the legality of their pot possession. Applying for a registration card does not waive physician-patient confidentiality.

As for dispensing health care professionals, a health care practitioner shall not be required to be listed publicly in any medical cannabis practitioner registry as a condition of authorizing patients for the medical use of cannabis.

When authorizing a qualifying minor patient who is a minor for the medical use of cannabis, if the treating health care practitioner is not a pediatric specialist, the treating health care practitioner shall, prior to authorizing the patient for the medical use of cannabis, obtain written confirmation from a health care practitioner who is a pediatric specialist establishing, in that health care practitioner’s professional opinion, and following an examination of the minor patient or review of the minor patient’s medical record, that the minor patient is likely to receive therapeutic or palliative benefits from the medical use of cannabis to treat or alleviate symptoms associated with the patient’s qualifying medical condition. If the treating health care practitioner is a pediatric specialist, no additional written confirmation from any other health care practitioner shall be required as a condition of authorizing the patient for the medical use of cannabis.

No authorization for the medical use of cannabis may be issued by a health care practitioner to the practitioner’s own self or to a member of the practitioner’s immediate family.

These are important but very liberal provisions.  Any health care professional may write a prescription for medical marijuana.  Confirmation of a medical condition that is LIKELY to receive therapeutic or palliative benefits for marijuana is the medical burden.  Pennsylvania comparative provision is significantly more stringent.  Similar to Pennsylvania, health care professional can not prescribe pot to themselves or their family.

Ownership of a Medical Marijuana dispensary is a significant legal issue. In Pennsylvania, physicians can not have any owership interest in any verticle aspect of the marijuana manufacturing, production, or supply chain. In NJ, this is extremely different.

Except as provided in subsection b. of this section, no health care practitioner who has authorized a patient for the medical use of cannabis pursuant to within the past 90 days, and no member of such health care practitioner’s immediate family, shall be an interest holder in, or receive any form of direct or indirect compensation from, any medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant.

If the health care professional does not prescribe marijuana, they CAN have an ownership interest.

Nothing in subsection a. of this section shall be construed to prevent a health care practitioner from serving on the governing board of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, or on the medical advisory board of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant established pursuant to section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill), or from receiving a reasonable stipend for such service, provided that:

(1) the stipend does not exceed the stipend paid to any other member of the governing board or medical advisory board for serving on the board; and

(2) the amount of the stipend is not based on patient volumes at any medical cannabis dispensary or clinical registrant or on the number of authorizations for the medical use of cannabis issued by the health care practitioner pursuant to P.L.2009, c.307 (C.24:6I-1 et al.).

c. A health care practitioner, or an immediate family member of a health care practitioner, who applies to be an owner, director, officer, or employee of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, or who otherwise seeks to be an interest holder in, or receive any form of direct or indirect compensation from, a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, shall certify that the health care practitioner has not authorized a patient for the medical use of cannabis pursuant to P.L.2009, c.307 (C.24:6I-1 et al.) within the 90 days immediately preceding the date of the application.

In almost every jurisdiction, use and possession of medical marijuana can and is a basis from professional disciplinary action.  Showing up high to work, for any reason, or being charged with driving under the influence of pot triggers professional license disciplinary actions.  Under the proposed legislation, the new law try to change this!

b. A qualifying patient, designated caregiver, institutional caregiver, health care facility, medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, health care practitioner, academic medical center, clinical registrant, testing laboratory, or any other person acting in accordance with the provisions of the new law shall not be subject to any civil or administrative penalty, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, related to the medical use of  cannabis as authorized under the bills (pending before the Legislature as this bill).

c. Possession of, or application for, a registry identification card shall not alone constitute probable cause to search the person or the property of the person possessing or applying for the registry identification card, or otherwise subject the person or the person’s property to inspection by any governmental agency.

d. The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of  cannabis determined to exist by the commission, shall not apply if a qualifying patient, designated caregiver, or institutional caregiver has in his possession a registry identification card and no more than the maximum amount of usable  cannabis that may be obtained in accordance with section 10 of P.L.2009, c.307 (C.24:6I- 10).

e. No person shall be subject to arrest or prosecution for constructive possession, conspiracy, or any other offense for simply being in the presence or vicinity of the medical use of cannabis as authorized under the bills pending before the Legislature as this bill.

Shall not alone constitute probable cause. These are the operative words. Simply using medical marijuana for a proper therapeutic or palliative need will not trigger a disciplinary investigation. Showing up at work smelling of pot and attempting to perform as a medical professional will cause problems. Work place reports, medical mistakes, criminal charges of driving while high (in any jurisdiction) are additional facts New Jersey’s licensing board will and can consider. They can not ignore “additional facts”. That is why the statute says “shall not alone constitute probable cause.”

GARLIC — NOBODY LIKES IT — The Case of Robert Garlick, Penn DOT, a DUI Investigation, and a Blood Test Refusal

On July 17, 2017 Robert Garlick was operating his motor vehicle in Erie County Pennsylvania.  A state Trooper investigating his 1 car accident, suspected Mr. Garlick of being under the influence of alcohol.  Garlick was arrested for suspicion of DUI.  At the barracks the Trooper read verbatim the warnings contained in the July 2016 revised Penn DOT DL-26B form.  This form provides the following warnings with regard to a chemical test of blood:

1. You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code.

2. I am requesting that you submit to a chemical test of blood.

3. If you refuse to submit to the blood test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months.

4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to a blood test, you will have refused the test.

I and many other attorneys have argued that this language in this DL-26B form fails to comply with the statutory version of §1547(b)(2) in effect at the time; that these drivers are not advised that refusing the chemical test would result in enhanced criminal penalties (i.e. the penalties provided in Section 3804(c)) as § 1547(b) requires. While there is no statutory or other requirement that the DL-26 form contain appropriate warnings, or that the form be read verbatim, it is nonetheless the duty of the police officer to inform the petitioner of the statutorily required warnings. In other words, if the police officer recites the appropriate warnings from memory without the use of any form at all that is perfectly acceptable under the law.  In this case, however, the Trooper confirmed that the only warnings he provided were those contained on the DL-26B Form which he read verbatim. Those warnings are not consistent with the law.

The law in effect in July of 2016 was 75 Pa.C.S.A. § 1547.  Section 1547 of the Vehicle Code in effect on May 24, 2017, provides in pertinent part:

(a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath or blood for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police Officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle:

(1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance)….
* * *

(b) Suspension for refusal.—

(1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the [D]epartment shall suspend the operating privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
* * *
(2) It shall be the duty of the police Officer to inform the person that:

(i) the person’s operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties). 75 Pa. C.S. § 1547(a),(b).

On July 20, 2017, the governor approved Act 30 of 2017 which provides for an amendment to Section 1547(b)(2) removing the language requiring a police officer  to provide the warnings relating to enhanced criminal penalties for refusal. This amendment was not effective on the date of Garlick’s incident.  The fact that the legislature amended it is indicative of its acknowledgement that such an amendment was necessary to effectuate the change required of the warnings pursuant to Birchfield.

Drivers license attorneys and I argue PennDOT’s amended DL–26B form, created post-Birchfield, removes references to §3804 criminal penalties. This form is not consistent with the statutory framework of the motor vehicle code and not consistent with any legislative authority. Various courts have been confronted with post-Birchfield amended O’Connell warnings that do not contain the mandatory/ statutory language of § 1547(b)(2).  These cases do not address the illegality of the DL-26B form and the incorrect recitation of law to the motorists deemed refusing.

Mr. Garlick objected to amended DL 26B reading.  The Erie County Court of Common Pleas judge denied his legal argument.  On appeal to the Commonwealth Court affirmed the trial judge and found PennDOT correctly altered its DL-26B form after the Birchfield case.  As you recall, Birchfield v North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), and Commonwealth of Pennsylvania jurisprudence interpreting it hold that 75 Pa.C.S.A. §1547(b) and Pennsylvania’s enhanced criminal penalties for refusing a chemical blood test are unconstitutional.

The complex criminal versus civil application of Birchfield, is born out in the case of Boseman v. Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017), and Gray v. Commonwealth , Dep’t of Transportation, Bureau of Driver Licensing, No. 1759 C.D. 2016, 2017 WL 2536439, at *7–8 (Pa. Commw. Ct. June 9, 2017), reargument denied (Aug. 7, 2017). These cases maintain arresting officer’s statutory obligation to inform a motorist of the General Assembly’s defined § 1547(b)’s ramifications of a refusal – not PennDOT’s version.

Garlick v. PennDOT is the first case to decide the exact argument I have raised in several cases.  Garlick rejects, though without explanation, the argument that the PennDOT revised DL-26 form is illegal.  The court  opinion adopts much of my and other defense counsel’s reasoning that; “It is true, as Licensee argues, that the language contained in Section 1547(b)(2)(ii) was mandatory at the time Trooper requested that Licensee submit to a blood test. However, while Section 1547(b)(2)(ii) then “command[ed]” that a warning about enhanced criminal penalties be given the purpose behind that provision is to make a licensee aware “of the consequences of a refusal to take the test so that he can make a knowing and conscious choice.” Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 877 (Pa. 1989); see Commonwealth v. Myers, 164 A.3d 1162, 1171 n.12 (Pa. 2017) (plurality) (“purpose of [Section 1547(b)(2)] ‘is to entitle arrestees to the information necessary to assess the dire consequences they face if they fail to consent to chemical testing, to ensure their choice in that regard is knowing and conscious, as we described in O’Connell’”

However, the court proceeds to state “Given our review of the current state of the law, Licensee’s argument that his license must be reinstated because he was not warned that he would be subject to no longer constitutionally permissible enhanced criminal penalties for refusing blood testing is unpersuasive. Trooper specifically and accurately warned Licensee about the consequences of refusing a blood test that remain following Birchfield, that is, the suspension of his license. Therefore, common pleas did not err when it denied Licensee’s appeal.”

This conclusion ignores the realty of the legislative dictate that the law as written and authorized by the General Assembly is the only permitted and regally authorized language Penn DOT can read to licensees.  More appeal will follow because of this specious and ill-informed decision.

Still on the topic of refusals to submit to  a breath or blood test, a new bill introduced into the General assembly in 2018, Senate Bill 553, makes changes to the state’s DUI laws and will take effect Jan. 11.  Among them is a new fee for refusing to submit to a blood-alcohol test, after the U.S. Supreme Court ruled in 2016 that police can’t obtain blood samples without a warrant or consent.  Under the revised law, drivers who refuse a blood-alcohol test but are convicted and lose their license will have to pay a “restoration fee” for their license of up to $2,000 — $500 for the first time a test is refused, $1,000 for the second time and $2,000 for the third and each time after. The law requires officers to inform suspects of the costs when they’re pulled over.

Birchfield, Rufusals, and PennDot’s DL – 26B Form

In many pending 2017 Pennsylvania DUI and civil license refusal cases stemming for arrests between April 2016 and July 2017 police officers administered incorrect chemical test warnings to Pennsylvania motorists.  Use of the DL 26B form, I think, is legally insufficient pursuant to the then effective 75 Pa.C.S. § 1547(b)(2).  Counsel should file suppression motions.  A corollary issue is whether these drivers are capable as a matter of law of refusing the blood test where the police officer testifies he read the illegal PennDOT DL-26B form.

In May/June 2016 PennDOT created the new DL 26B form in response to Birchfield.  Birchfield held that criminally coercing a blood draw — compelling a defendant to testify/provide blood evidence against themselves or face jail time — is unconstitutional.  After Birchfield, enhanced penalties and threats of jail to secure evidence in DUI cases require suppression of blood evidence.  In response PennDOT changed its DUI informed consent form, the DL 26B document that local and state police read to DUI suspects when the want the suspect to give blood.  The General Assembly did not give PennDOT authority to do this.  This is the topic of this blog.

The suppression argument is as follows:  The arresting officer’s warnings to the DUI suspect fail to comply with Section 1547(b)(2) in that the driver was not advised that refusing the chemical test would result in enhanced criminal penalties (i.e. the penalties provided in Section 3804(c)) as § 1547(b) (pre-July 2017) requires.  While there is no statutory or other requirement that any DL-26 Form contain appropriate warnings, or that the form be read verbatim, it is nonetheless the duty of the police officer to inform the petitioner of the statutorily required warnings.  (See Section 1547(b)(2)).  In other words, if the police officer recites the appropriate warnings from memory without the use of any form at all that is perfectly acceptable under the law.  If an officer confirms the only warnings provided were those contained on the DL-26B Form, those warnings are not consistent with the statutory law prior to July 2017.

This date is important because on July 20, 2017, the governor approved Act 30 of 2017 which provides for an amendment to Section 1547(b)(2), removing language requiring a police officer to provide the warnings relating to enhanced criminal penalties for refusal. While this amendment was not effective on the date of petitioner’s incident, the fact that the legislature  amended  it is indicative  of its acknowledgement that such an amendment was necessary to effectuate the change required of the warnings pursuant to Birchfield.

Importantly, the §1547 pre-July 2017 statute includes the word shall.   The legislature’s use of the term “shall” establishes that police officers must comply with the §1547 language mandate. In Comm v. Weaver, the 2006 Pennsylvania Supreme Court interprets §1547(b)(2) verbiage (the same was in effect on prior to July 2017) reaching the same conclusion.  Following the September 2003 amendments to the Implied Consent Law, PennDOT implemented the language of§ 1547(b)(2)(ii) into a new DL-26 form. This led to a significant amount of litigation over whether the warnings printed on the December 2003 version of the Department of Transportation’s DL-26 form were sufficient to satisfy the requirements of§ 1547(b)(2). The Pennsylvania Supreme Court, in Weaver, held that the warnings printed on that version of the DL-26 form were legally sufficient to satisfy those requirements.  In reaching its decision, the Weaver Court stated:

The legislature’s use of the term “shall” clearly establishes that police officers must comply with  this mandate.   Subparagraph (ii) commands police officers to inform an arrestee that “(ii) upon conviction, plea or adjudication of delinquency for violating section 3802(a), the person will be subject to penalties provided in section 3804(c) (relating to penalties).” The words of this statute are clear and free from all ambiguity; thus, we will glean the legislative intent from those words. The plain language requires only that the officer inform the arrestee that if he is convicted of DUI, refusal will result in additional penalties.

Accordingly, under the plain language of the statute, the warnings set forth in the 2017 version of § 1547(b)(2) are mandatory and must be strictly complied with in order to suspend a motorist’s operating privilege pursuant to the Vehicle Code. Previously, in very certain terms, Pennsylvania’s Supreme Court has held that, in requesting a chemical test, the police officer must inform the arrestee of the consequences of refusal and notify the arrestee that there is no right to consult with an attorney before making a decision. See O’Connell, 555 A.2d at 877-78.12 “An arrestee is entitled to this information so that his choice to take a [chemical] test can be knowing and conscious.” Id. at 878. The choice belongs to the arrestee, not the police officer.

In Commonwealth of Pennsylvania, Department of Transportation v Kennedy, 66 A.3d 818 (Pa. Comw. 2013), the Court says that:

“the warning delivered to [licensee] fully complies with the statutory requirements. The statute simply does not require any specific explanation as to the length of the civil suspension and does not require explanation of criminal penalties set forth in §3804(c). The statute requires only that the police provide notice that refusal will result in license suspension and, that if the licensee is driving under the influence, refusal will result in additional penalties. [The licensee] receives this information. Kennedy requires that the officer deliver only the statutory authorized 1547(b) authorized penalties of a refusal. While there is no specific language that the Courts have determined these police officers must read licensees, once the officer begins notifying potential motorists of license refusal consequences, only those consequences that are set forth in the statute must be read.”

Our Pennsylvania Supreme Court has confirmed police officers’ obligation to advise motorists of the exact warning contained in §1547(b)(2). In this 15 month period, police officers utilizing the DL-26B form did not comply with statutory law requiring the correct consequences be advised to these motorists. PennDOT’s utilization of the revised DL-26B was not sanctioned by the General Assembly and not legally effective on the date and time of these arrest render the information provided to them insufficient as a matter of law.

§1547 prior to July 2017 required reading all language contained therein, even those provisions deemed unconstitutional by the United States Supreme Court. This tension between the current statutory laws and judicial decisions create a situation fraught with potential that motorists will not receive sufficient information to make a voluntary, informed decision regarding consent to the requested chemical testing.

The complex criminal versus civil application of Birchfield, Weaver, Kennedy, supra, is born out in Boseman v. Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017), and Gray v. Commonwealth , Dep’t of Transportation, Bureau of Driver Licensing, No. 1759 C.D. 2016, 2017 WL 2536439, at *7–8 (Pa. Commw. Ct. June 9, 2017), reargument denied (Aug. 7, 2017).  These cases maintain  arresting officer’s statutory obligation to inform a motorist of the General Assembly’s defined § 1547(b)’s ramifications of a refusal – not PennDOT’s version.

In Boseman  and Gray, supra, Commonwealth Court states Birchfield does not apply to PennDOT license suspension refusal cases. As such, any court finding that Birchfield effectively compelled PennDOT to unilaterally re-write the 1547(b) mandatory warning, to a non-statutorily authorized version, is not supported by the Commonwealth Court’s application of Birchfield in the §1547(b) refusal context. Boseman, Gray, Weaver, Kennedy, supra.

In Gray and Boseman, supra, Judge McCullough dissents.  Judge McCullough convincingly points out the incongruity of the constitutional right of privacy and self-incrimination Birchfield establishes (adopted by Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016)) and Commonwealth Court’s dismissing such argument in the civil license suspension context when ONLY a state based property right (a motor vehicle operator’s license) is at issue.

In Price v. Commonwealth, Dep’t of Transportation, Bureau of Driver Licensing,, No. 1873 C.D. 2016, 2017 WL 4321625, at *6 (Pa. Commw. Ct. Sept. 29, 2017), Judge McCullough concurs in the result (she is constrained to follow Boseman, supra) but reiterates her position set forth in Gray and Boseman.  However, Judge Cosgroves dissents:

While Birchfield is not directly applicable here, it does stand for a principle which the former DL–26 does not reflect. And while Birchfield allows implementation of civil penalties for refusal to submit to a blood test in cases such as this, it does not give states permission to misinform a licensee as to the consequences of a refusal.

As such, Courts may, on alternative grounds, conclude Birchfield applies in the civil, administrative license suspension realm as a driver’s licenses in this day and age constitutes a property right to which criminal threat of incarceration to surrender (the proper § 1547(b) language to be read but was not) violates her constitutional rights, voiding any refusal. This conclusion is sought even though the DL-26 Form with the enhanced penalties was not read to these motorists.  It was still required to be read, but was not.

Call me to discuss your case.

 

Pennsylvania’s New DUI Case Law

Since Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016), Pennsylvania’s DUI statute as applied to blood draws and refusals to submit to blood draws has because unenforceable.  The illegal escalation of criminal penalties for refusing to submit to a blood draw, or even being told of the enhanced penalties, has created an untenable situation for every police department in the Commonwealth.  They are still doing it wrong. Do not plead guilty.  Fight these cases.

Some departments are still reading the old refusal warnings.  Some are still taking people to the hospital when a simple breath test will work.  Some are making up new refusal warnings.  Some are trying to get people to freely consent to a blood draw without telling them of the consequences.  These, I think are all illegal procedures.  The cases are coming down every week limiting how the Commonwealth can gather evidence and what evidence can be used to prosecute the cases under the post-Birchfield paradigm.

It is the Commonwealth’s burden of proof to establish a DUI suspect’s consent to give blood is the product of essentially free and unconstrained choice—not the result of duress, coercion, expressed or applied. Commonwealth v. Gaetano, 2017 Pa. Super. Unpub. LEXIS 1241 (April 4, 2017); Commonwealth v. Evans, 153 A.3d 323, 2016 PA Super 293 (Pa. Super. filed December 20, 2016). The standard for measuring the scope of a person’s consent is based upon an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave such consent.

Gaetano and Evans  in applying Birchfield hold that the Commonwealth may not impose criminal penalties on the refusal to submit to a warrantless blood test.  Reading a person the now illegal O’Connell warning’s, or any other fabricated, constructed, newly designed version thereof, threat of enhanced criminal prosecution and incarceration vitiate consensual submission to a blood draw absent a warrant. Gaetano and Evans state it is the Commonwealth’s burden of proof to establish that a defendant’s consent is freely given and not the product of coercion.

It is not the a defendant’s burden of proof to establish or place in the record his subjective feelings of coercion. Commonwealth v. Fink, 2016 Pa. Super. Unpub. LEXIS 4704, *13 (Pa. Super. Ct. 2016).  The mere language of the O’Connell warning, or any other fabricated, constructed, newly designed version thereof, include a threat of enhanced criminal prosecution are coercive and the Commonwealth cannot establish coercive free consent.   Objective evidence of duress that is the basis for Gaetano and Evans will be present in almost every defendant’s arrest record, thus vitiating alleged voluntary consent to give blood draw.

Upon deciding a Motion to Suppress the blood evidence, trial courts cannot, and it is irrelevant to the constitutional evaluation under the Supreme Court precedent, put the burden on the defendant, as to what their objective state of mind was upon giving consent for a blood draw.

As for the specific refusal statute, 75 Pa.C.S.A. § 1547, Superior Court has concluded that it or police departments newly fabricated, constructed threat of enhanced criminal prosecution vitiates any consent given to a warrantless blood draw.  Gaetano and Evans maintain that subjecting defendants to warrantless blood draws based upon the illegal O’Connell warning consent provisions (or any other fabricated, constructed, newly designed but improper version thereof, threat of enhanced criminal prosecution) is illegal and unconstitutional under US Supreme Court and Pennsylvania appellate court jurisprudence.

In looking at the totality of the circumstances the court must determine that any consent is not voluntary and coerced. Birchfield’s review of the Supreme Court’s jurisprudence on blood testing compels a review of Missouri v. McNeely, 566 U.S ___ (2012),  where the Court refused to adopt a per se rule that “whenever an officer has probable cause to believe that an individual has been driving under the influence of alcohol, circumstances will necessary exist because blood alcohol content evidence is inheritably evanescent.”  Id. at ____, (slip op., at 8).

McNeely is applicable in Pennsylvania DUI cases because officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search.  The Fourth Amendment mandates that they do so.  They are no doing so.  The court has held that it is not enough to claim that “circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency.” This is to be decided in each case on its facts.  The Court did not create a general rule based upon “considerable over generalization” that a per se rule would reflect.

Pennsylvania has said the same thing.  “The Fourth Amendment to the [United States] Constitution and Article I, Section 8 of [the Pennsylvania] Constitution protects Pennsylvania’s citizens from unreasonable searches and seizures.” Commonwealth v. McAdoo, 2012 PA Super 118, 46 A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies.” Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 888 (Pa. 2000).  “Exceptions to the warrant requirement include the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception . . . , the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. Dunnavant, 2013 PA Super 38, 63 A.3d 1252, 1257 n.3 (Pa. Super. 2013).

As for blood, the “administration of a blood test . . . performed by an agent of, or at the direction of the government” constitutes a search under both the United States and Pennsylvania Constitutions. Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308, 315 (Pa. 1992); Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).  Since the DUI blood tests are typically performed without a warrant, the search is preemptively unreasonable “and therefore constitutionally impermissible, unless an established exception applies.”

In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances.  The standard for measuring the scope of a person’s consent is based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent.  Such evaluation includes an objective examination of the maturity, sophistication and mental or emotional state of the defendant. Gauging the scope of a defendant’s consent is an inherent and necessary part of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the product of coercion, deceit, or misrepresentation.  Commonwealth v. Smith, 621 Pa. 218, 77 A.3d 562, 573 (Pa. 2013) (internal citations, quotations, and corrections omitted).

I think the DUI case law requires that the police tell the arrestee of the consequences of a refusal to take the test so that he can make a knowing and conscious choice.  When requested to take a breathalyzer or blood test, the court insists that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test. An arrestee is entitled to this information so that his choice to take a breathalyzer test can be knowing and conscious and we believe that requiring the police to qualify the extent of the right to counsel is neither onerous nor will it unnecessarily delay the taking of the test.  Commonwealth v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989).

In many cases, the police claim a defendant allegedly consents to the warrantless blood draw during a custodial interrogation after the police inform him of some fabricated, constructed, newly designed informed consent language not court or legislatively approved. This is not proper.  Currently, the only available law requires the police to advise a defendant that: “if you refuse to submit to chemical test and you are convicted or plead to violating § 3802(a)(1) related to impaired driving under the vehicle code, because of your refusal, you will be subject to more severe penalties set forth in § 3804(c)[,] relating to penalties, the same as if you were — if you would be convicted at the highest rate of alcohol.”

This makes the verbal consent to a warrantless blood draw  during a non-mirandized, custodial interrogation in illegal statement subject to suppression.  Absent verbal consent, there is none.  Further, since Birchfield held that  a state may not “impose criminal penalties on the refusal to submit to [a warrantless blood] test,” the police officer’s advisory to any defendant on the non-legislatively permitted language illegal. Birchfield, 136 S.Ct. at 2186. This then requires a court to conclude that the search incident to arrest doctrine does not justify  warrantless blood testing compelled through enhanced criminal sentencing provisions for refusing to take that blood test.  This in turn means that the enhanced criminal offense, both in charges filed and potential sentencing scheme set forth in 75 Pa. C.S.A. § 3802(b)(1)(2), compels this County Courts of Common Pleas to hold that “motorists cannot be deemed to of consent to submit to a blood test on fate of committing a criminal offense.”

Call me to discuss you DUI and blood draw evidence.

Summer 2013 DUI Update

So far this summer, Pennsylvania’s Superior Court issued two very significant DUI decisions. The first ruling was handed down the case of Commonwealth v. Musau. The second decision was presented in Commonwealth v. Barker.

In Musau the trial court found Musau guilty of driving under the influence of alcohol in violation of 75 Pa. C.S.A. §3802(a) (general impairment), his a second offense, and graded the conviction as a first-degree misdemeanor pursuant to 75 Pa C.S.A. §3803(b) (4). The trial court sentenced Musau to ninety days to five years in jail.

On appeal Musau argued there was a conflict between § 3802(a) (which carries a maximum of six months supervision) and §3803(b) (4) (that identifies a violation of § 3802(a), 2nd offense, as a first-degree misdemeanor which carries a potential five years supervision). In light of the statutory conflict, Musau argued his supervision could only be ninety days and not five years. Superior Court agreed.

After reviewing the sentencing provisions of the specific DUI statute, 75 Pa. C.S.A. §3802, et seq., and the general sentencing parameters of the criminal code under 18 Pa. C.S.A. §106(b) (6), (e), the court concluded that if an individual is only found guilty of the “general impairment” provision of §3802(a) and not §3802(c) or (d), the maximum potential supervisory sentence is six-months and not five years. The important part of this case is just that: if a court finds a person who may have refused the blood or breath test guilty under § 3802(a) only, as a second offense, and not § 3802(c) or (d), the sentencing maximum is six months, not five years.

The lesson here is to specifically ensure any refusal charges §3802(d) are either dismissed or withdrawn at a preliminary hearing in the counties or a finding of not guilty in Philadelphia Municipal Court. Thereafter, the trial court may only, if the evidence is sufficient, find guilt under §3802(a), a general impairment conviction. Sentencing will then be governed by the DUI statute and ninety days, not the Crimes Code.

The second case is Commonwealth v. William Barker. The case began as a garden-variety motor vehicle infraction, typical traffic stop, and suspicion of DUI.  However, competent counsel convert the case into a discussion of motorists’ right to an alternative blood tests under 75 Pa. C.S.A. §1547(i) and a police officer’s violation of the refusal statute, not the motorist’s.

For those unaware, 75 Pa. C.S.A. §1547 is the Pennsylvania implied consent provision of the Pa motor vehicle code allowing for the police to request the operator of a motor vehicle suspected of DUI to submit to a breathalyzer test or have their blood drawn at an appropriate medical facility.  If they refusal the criminal sentence may be worse and at least a 1 year license suspension separate from the DUI may follow.

The appeals court addressed §1547 in the context of a §3802(d) refusal case. §3802 (d) is the DUI refusal statute law enforcement may charge individuals who have “refused” to submit to any chemical test requested pursuant to §1547. 75 Pa.C.S.A. §3802(d) (2) defines driving under the influence as follows: An individual may not drive, operator, or be in actual physical control of the movement of the vehicle under the influence of drugs or a combination of drugs to a degree to which impairs the ability to drive safely, operate or be an actual physical control of the movement of the vehicle.

Barker testified that he advised the investigating officer he would take any blood test that would establish his innocence, including paying for any test. Barker testified that he suffered a prior medical infection from the hospital to which he was taken, spending seven days there. At trial Barker was found guilty of violating §3802(d) (2) and was sentenced as a refusal.
Barker appealed the guilty finding under the refusal statute arguing that 75 Pa.C.S.A. §1547(i) specifically states: Request by driver for test: Any person involved in an accident or placed under arrest for violation of section… 3802… may request a chemical test of his breath, blood or your peers such request shall be honored when it is reasonably practical to do so.

At trial, the arresting officer did not testify that it was not reasonably practical to take Barker to a different location for the blood draw. Superior Court found this important. “Although section §1547 delineates the tests that may be used and the manners within which the tests must be conducted, §1547(i) does not indicate what constitutes ‘reasonably practical’ for an alternative test and an officer’s ability to reject a motorist’s request for an alternative means of testing at the time of arrest.” Stated another way, the court concluded that an investigating officer “shall honor a motorist’s request when it is ‘reasonably practical’ to do so”.

The court emphasized that the statute “presumes the validity of the motorist’s request and vests the officer with the discretion to decline the request for alternative testing only if the circumstances render the testing incapable of being put into practice with the available means”. The court went on to state that the statutory language does not continence an officer’s “arbitrary refusal” to decline an alternative test request.

The officer may decline the alternative test only if the test requested is not within the means available at the time the testing is sought. While the statute protects the arbitrary whims of motorists who might demand alternate forms of testing, the statute does not allow arbitrary conduct of the police officer in denying motorist’s requests when practical.

Consequently, the court stated that when an arresting officer arbitrarily refuses to allow alternative testing a motorist requests he deprives that motorist evidence admissible in any subsequent prosecution under § 3802, not just those prosecutions under 3802(c) or (d). This is significant in that in any DUI prosecution, an officer must comply with a request for an alternative testing at a different hospital or in a different manner, based upon an appropriate objection, medical condition, or phobia, if such alternate testing is practical under the circumstances.

The court found that when the arresting officer arbitrarily refused Barker’s request for an alternate test which would have produced evidence that may have proven his innocent, the officer substantially impeded Barker’s due process rights. Having found the police, not Barker, violated  § 1547, the appeals court concluded that the arresting officer’s “refusal to honor the statute’s provisions yields a resolution that deprived Barker of admission of evidence that, had it been available, would have been relevant to the charges at issue.” Such violation undermined Barker’s ability to counter the Commonwealth’s allegations and, therefore, warranted granting Barker’s appeal and dismissal of all charges.

PennDOT Refusal Creditibility Issues

In a recent case Janna Perry appealed a Commonwealth of Pennsylvania, Department of Transportation (“PennDOT”) suspension of her driving privilege for a period of one year. Perry v. Commonwealth, 2012 Phila. Ct. Com. Pl. LEXIS 296, 1-7 (Pa. C.P. 2012). The suspension was sought as a result of police officers alleging, during the course of a DUI – 75 Pa C.S.A. § 3802(b) investigation, that when they asked Ms. Perry to submit to a breath test in accordance with their rights under 75 Pa.C.S.A § 1547, she refused to take a chemical test.

The evidence presented was that Ms. Perry had not refused to take a chemical test at the police station after she was arrested; rather, she had followed instructions, successfully taken one test and tried in good faith to take a second test. PennDOT alleged she did not cooperate fully as she was required to and her refusal to cooperate constituted a deliberate refusal to take the test in violation of § 1547(b)(1)(i) of the Pennsylvania Vehicle Code, 75 Pa.C.S.A. § 1547(b)(1)(i).

Trooper Buch testified as to the facts regarding the traffic stop, her taking a portable breath test which she failed, and her being detained and taken to the station for further testing. He alleged he read Ms. Perry the O’Connell warning pursuant to state law and explained to Ms. Perry the proper way to perform the test.

He demonstrated the plastic mouth piece and the proper way to blow into the breathalyzer and instructed Ms. Perry to take one long steady continuous breath into the machine. Ms. Perry provided the first breath sample — a long continuous breath which is reflected in the report derived from the DataMaster. This first test provided an accurate reading of Ms. Perry’s condition. She then took a second test. Trooper Buch testified she did not produce the long continuous breath required for the second test, taking only short breaths. Trooper Buch testified that after Ms. Perry did not perform the second test, she was given a two minute window to provide a proper sample of breath. Trooper Buch testified he again instructed and demonstrated to Ms. Perry how to properly execute the breath test but Ms. Perry indicated she would not take the test.

Conversely, Ms. Perry testified she took two breathalyzer tests to the best of her ability. She testified she took the first test, breathing into the machine as instructed, and was told the test was successful. She further testified she took a second test, but was not told that test was incorrectly taken and was not asked to take a third test. Ms. Perry’s testimony was that she never refused to take any of the tests she was asked to perform both before and after being taken into custody.

To secure a § 1547 violation and suspension, PennDOT must establish the licensee: (1) was arrested by a police officer who had reasonable grounds to believe the licensee was operating a motor vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned refusal would result in a license suspension. Ouick v. PennDOT, 915 A.2d 1268, 1271 (Pa. Cmwlth. 2007). PennDOT must produce evidence the arrestee deliberately attempted to produce an inadequate sample. The crucial, determinative factor gleaned from the cases is whether PennDOT’s evidence proves the licensee deliberately tried to delay or undermine the testing process. Bomba v. Commonwealth, 28 A.3d 946; 2011 Pa. Commw. LEXIS 462.

Here, the issue became one of credibility. The issue of credibility is resolved by the Court as the finder-of-fact. Bremmer v. Protected Home Insurance Company, 436 Pa. 494, 260 A.2d 785 (1970); Dudley v. USX Corp., 414 Pa. Super. 160, 606 A.2d 916 (1992).

As fact-finder, this Court concluded PennDOT failed to produce evidence sufficient to sustain its burden to prove a deliberate refusal. Rather, the evidence showed Ms. Perry obliged both Troopers throughout the stop. She was candid when asked if she was drinking. She performed all the requested tests at the scene to the satisfaction of Trooper Scrivani, including the portable breath test; curiously contrary to Trooper Buch’s testimony that Ms. Perry refused to complete all the tests.

The uncontroverted evidence showed the Troopers read the O’Connell Warnings and the PennDOT DL-26 form twice to Ms. Perry and, while at the police station; Ms. Perry cooperated with both Troopers’ requests regarding the chemical breath test, performing the first test with satisfactory results. The issue of “refusal” surrounded the second sample. Both Troopers stated Ms. Perry gave an insufficient second sample, and thereafter refused to re-take the test. Ms. Perry testified not only did she agree to subject herself to every test she was asked to take, both at the scene and at the police station, but she completed each one and was never advised that any were improperly completed.

Whereas the Troopers’ testimony conflicted as to whether Ms. Perry consented or refused to participate in all the tests at the scene prior to her arrest, calling into question their credibility, there was sufficient testimony to reasonably conclude that Ms. Perry cooperated fully throughout the entire process. Having found Ms. Perry credible and that PennDOT failed to meet its evidentiary burden to show Ms. Perry deliberately delayed or undermined the testing process, Ms. Perry appeal was sustained and the license suspension rejected.