High court decision likely to cut sentence in DUI case
A Whitehall man facing a mandatory 3 to 6 years in prison if convicted of homicide by vehicle while DUI instead will likely get just 3 to 12 months in the county jail following a recent U.S. Supreme Court opinion.
The decision in Birchfield v. North Dakota, issued on June 23, now requires law enforcement officers to obtain a search warrant to draw blood in the case of impaired drivers who refuse to consent to chemical testing.
It is a significant change to the law, which previously made it an additional crime for drivers who refused the test.
Allegheny County Police said Colin Kenney was drunk and had marijuana in his system shortly after 2 a.m. on Dec. 19 when he crashed head-on into another car in the 4600 block of Brownsville Road near South Hills Country Club in Whitehall.
The other driver, Joseph E. Fanzo, 68, of Baldwin was ejected from his car and killed.
On Tuesday, Mr. Kenney, 23, pleaded guilty to the lesser charge of homicide by vehicle, as well as careless driving and DUI. He will be sentenced by Common Pleas Judge Beth A. Lazzara on Jan. 20.
The plea agreement with the Allegheny County District Attorney’s office was the result, at least in part, of the Birchfield decision.
Attorneys for Birchfield and two other drivers claimed that implied consent laws that make it a crime for a motorist to refuse testing for impaired driving violate the Fourth Amendment’s prohibition against unreasonable searches.
The court agreed, though only in the instance of blood draws. The impact of breath tests on privacy, the court found, is slight, and the need for quick and efficient DUI testing is great.
However, the opinion continued, “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.”
That means that a police officer stopping a possibly impaired driver who does not consent must first obtain a search warrant before having the suspect’s blood drawn.
In Mr. Kenney’s case, he consented to the blood draw but still read and signed the Pennsylvania Department of Transportation DL-26 form, which warned drivers of the potential criminal penalties of refusing to submit to chemical testing.
Under Birchfield, that warning was made unconstitutional, making Allegheny County prosecutors unable to move forward with the homicide by vehicle while DUI charge against Mr. Kenney.
“I’m glad our county is following the law as it should be,” said his defense attorney, Phil DiLucente.
Six days after the Birchfield opinion, District Attorney Stephen A. Zappala Jr. wrote a letter to Allegheny County’s police chiefs informing them of the change in the law, as well as possible alternatives they may use if necessary. He also attached the amended DL-26, with the offending language redacted.
“Because breath testing is viewed by the court as less intrusive and not requiring a search warrant, we recommend where relevant and possible that the driver be taken for a breath test,” Mr. Zappala wrote. “For those departments without breath-testing equipment, you may wish to reach a cooperation agreement with a sister jurisdiction.”
Where that is not possible, or where there is alleged impairment caused by a controlled substance not detectable in a breath test, and the driver does not consent, Mr. Zappala continued, the officer should obtain a search warrant from a local magisterial district judge.
But in some of Pennsylvania’s geographically large counties with a sparse population, it could take an officer more than an hour to get to a magistrate to have a warrant signed, said David Drumheller, the traffic safety resource prosecutor with the Pennsylvania District Attorneys Association.
That type of delay could cause a dissipation in the driver’s alcohol or drug levels in the blood.
“The issues are going to be county-specific regarding getting a search warrant and dissipation,” Mr. Drumheller said. “Obviously, the challenges Allegheny County faces will be much different than the challenges Elk County faces.”
His office is working to provide guidance and support to the counties that need it, Mr. Drumheller said.
He noted, too, that under Birchfield, the court did not object to civil penalties imposed on drivers who refuse to comply with testing. In Pennsylvania, that means a driver who refuses the test faces a license suspension of 12 or 18 months.
University of Pittsburgh law professor John Burkoff said the Birchfield decision likely means that some prosecutions will have to be dropped.
“The Bill of Rights wasn’t intended to make it easier to find and to prosecute criminals,” he said. “It was intended to make sure that individuals receive their basic human rights, and sometimes that means some criminals will go free because law enforcement didn’t follow the law.
“It’s at least as important that police officers follow the law than that ordinary citizens do the same thing.”