January 24, 2017 (Fault Lines) — For the most part, assuming someone is actually impaired, the best advice a criminal defense lawyer can give someone who has been stopped under suspicion of driving under the influence is to refuse to submit to any kind of chemical testing. The traditional thinking goes that maybe you will face some sort of evidentiary presumption or maybe a license suspension for the refusal, but you still might be better off than having your actual BAC known to the police.
In response to this thinking, a number of states have upped the stakes. All states have so-called “implied consent” laws, which say that by agreeing to be on the road you have impliedly consented to having the police test your blood for drugs and alcohol. These laws allow a driver to still refuse, but traditionally he will be subject to some unpleasant consequence, usually a mandatory license suspension.
In recent years, more than a dozen states went farther and passed laws imposing mandatory criminal sentences for drivers found to be impaired to any degree who refused to consent to chemical tests. A few others made it a separate crime to refuse a chemical test if the police have probable cause to believe you were driving under the influence.
Last summer, the Supreme Court flirted with the constitutionality of these laws, but ultimately punted on several major issues. In Birchfield v. North Dakota, the Court held that implied consent laws often run afoul of the Fourth Amendment. In particular, while the Fourth Amendment might allow a warrantless breath test for a suspected drunk driver, it does not allow the state to conduct a warrantless blood test, because holding someone down and sucking their blood out of them by force is a bit much without judicial approval.
The Court also noted, in a short and seemingly thrown-away part of the opinion, that a state can’t rely on implied consent to force a blood draw. According to the Court, “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” It isn’t “consent” if the state says that you have to agree or go to prison.
What this didn’t answer, though, was whether or not a state could impose an extra punishment, such as a license suspension or enhanced sentence, on a driver who refused to consent to a warrantless chemical analysis.
Pennsylvania’s implied consent law is relatively extreme, and provides that every motorist has impliedly consented to having either a breath test or chemical test (whichever the police like), and if you refuse you will be subject to a mandatory license suspension and, if convicted of driving while impaired, you will be sentenced as though you had the highest level of blood-alcohol concentration recognized by the law. This means someone who was impaired for any reason but refuses to consent to a test, will face a mandatory jail sentence, even for a first offense, and even if their BAC was actually below the legal limit.
Before Birchfield was decided, Hemant Kohli was convicted of being an impaired driver after he had refused to consent to a warrantless blood test. Because he was a repeat offender, he was sentenced to a mandatory 18-month prison term.
In reviewing his case, the Court raised Birchfield sua sponte, because it was clear that the police had no legal right to force Kohli to consent a warrantless blood test. The Court started with the premise that, in Birchfield, “the Supreme Court held that blood tests taken pursuant to implied consent laws are an unconstitutional invasion of privacy.” But from this, the Court jumped immediately to this: “As the Birchfield Court held that the practice of criminalizing the failure to consent to blood testing following a driving under the influence arrest was unconstitutional, the trial court improperly … impos[ed] a mandatory minimum sentence upon Kohli.” Apparently, the Court determined that, even though Kohli did not consent to any illegal search at all, his refusal to consent could not be used to enhance his sentence.
But the Court’s holding does not necessarily follow from Birchfield. It was true that Birchfield held that a state can’t force you to consent to what would otherwise be an illegal search under the Fourth Amendment by threatening you with jail. Your consent in that circumstance doesn’t excuse the Fourth Amendment violation.
But that didn’t directly answer the question of what to do when you refuse to consent. Can the state still punish you?
This issue really deals with a separate doctrine that hasn’t been discussed very much for the last 50 or so years. In Camara v. Municipal Court, the Supreme Court held, way back in 1967, that it is unconstitutional to charge someone with a crime and prosecute them for doing nothing more than refusing to consent to an illegal search. The Court didn’t really explain why it is unconstitutional, and the majority of the Camara case dealt with whether or not a Fourth Amendment violation had occurred at all with respect to the underlying search.
This being the Court in the late sixties, the constitutional principle illustrating the secondary holding is never directly explained. Maybe it was some sort of nebulous due process right, or maybe a prophylactic rule designed to protect the Fourth Amendment interest. Who knows? All we know for sure is that it is “unconstitutional” to convict someone of a crime for not consenting to an illegal search.
Of course, the Court has also held that not all punishments for failure to consent to Fourth Amendment violations are impermissible. In Wyman v. James the Court clarified that it is perfectly constitutional for the government to yank your public benefits based on your refusal to consent to an illegal search. The line seems to be whether refusal is a separate “criminal act.”
While Camara gives some support to Kohli’s holding, that case seems to fall somewhere between Camara and Wyman. Kohli was not subject to a criminal prosecution because of his refusal to consent, he was subject to an enhanced penalty for a separate crime of impaired driving.
As a number of federal Courts of Appeals have held, generally a judge may enhance a person’s sentence based on illegally obtained evidence, because the exclusionary rule does not apply at sentencing. By extension, it would seem that there really isn’t a specific constitutional violation for someone to get hit with a mandatory sentence simply because he refused to consent to an illegal search.
It is therefore far from clear that some ill-defined constitutional rule, which springs in some form from the Fourth Amendment, prohibited Kohli’s sentence from being enhanced by his refusal to consent to a blood test.
For now, Kohli is on the books, and certainly the defense bar should make use of it in every case involving a refusal. However, Kohli is an unpublished decision, meaning it has no official precedential value in Pennsylvania, and, by rule, can’t be cited in appellate court filing.
If this decision is going to stay in effect, or become a precedential case, one hopes that the litigants and the courts address the much bigger constitutional principles at play.