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Can refusal evidence of a blood test be evidence of guilt in a DUI case under the United States Constitution

On November 14, 2019, Thomas Bell, a motorist convicted of DUI, filed a Petition for a Writ of Certiorari with the Supreme Court seeking review of the Pennsylvania Supreme Court’s decision that warrantless blood test refusals may be used as evidence of guilt in DUI cases under the State’s implied consent law.  The case being reviewed by the United States Supreme Court is Bell v. Commonwealth of Pennsylvania.  In Massachusetts, the SJC has ruled that refusal evidence violates a defendant’s privilege against self incrimination under Article 12 of the Massachusetts State Constitutional.

Bell’s Petition  asks the Supreme Court to address the following question:

Whether a motorist’s assertion of his Fourth Amendment right to refuse consent to a warrantless blood test may be used as evidence of guilt for the offense of driving under the influence?

The Petition relies on the Court’s holding in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) that the Fourth Amendment forbids States from using “implied consent” laws to inflict a separate criminal penalty on a motorist who refuses a warrantless blood alcohol test. Birchfield did not expressly address whether the Fourth Amendment limits States from using implied consent laws to introduce refusal evidence to convict a motorist of a DUI offense. Bell argues that the use of refusal evidence to prove guilt in a DUI case achieves the same goal as the conduct prohibited by Birchfieldbecause in both cases, motorists suffer a criminal penalty for asserting their Fourth Amendment right to refuse a warrantless blood test. Motorists charged with a DUI offense have no real choice when they are compelled to choose between exercising their Fourth Amendment right to refuse a warrantless blood test and having their refusal used as evidence to prove their guilt.

Bell argues that the Supreme Court should grant the petition based on the conflict between the Pennsylvania Supreme Court’s decision and the Fourth Amendment,  as well as the disagreement among state courts on the extent of Fourth Amendment protection afforded to motorists who refuse a warrantless blood test. The Petition further argues that the issue is one of substantial importance because implied consent laws are ubiquitous and due to recent developments in blood alcohol testing technology.

Bell cites to recent Supreme Court precedent in Birchfieldand Missouri v. McNeely, 569 U.S. 141, 165 (2013)establishing that under the Fourth Amendment, a blood test is an intrusive search that demands a warrant or an exception. Thus, a motorist has a right to refuse a blood test when neither is present. The Petition points out that while Birchfieldestablished a bright line rule for alcohol breath tests under the Fourth Amendment’s search-incident-to arrest warrant exception, the Court declined to extend this exception to blood tests because they are “significantly more intrusive” than breath tests. AlthoughBirchfield acknowledged, in dicta  that civil and evidentiary consequences may be imposed on a motorist who refuses consent, the Petition argues that convicting a motorist of a DUI offense based on refusal evidence is more than an “evidentiary consequence” because it creates criminal exposure for motorists who assert their Fourth Amendment rights. Bell cites to Supreme Court precedent establishing that a State may not use a defendant’s invocation of their constitutional rights to prove a defendant’s guilt of an offense, including Griffin v. California, 380 U.S.609, 614 (1965)(comment by State on defendant’s refusal to testify at trial impermissibly burdens Fifth Amendment privilege against self-incrimination) and United States v. Jackson, 390 U.S. 570(Federal Kidnapping Act provision invalidated because it applied death penalty solely to defendants who demanded a jury trial and unconstitutionally burdened defendant’s Sixth Amendment right to trial by jury). Additionally, the Petition points to federal appellate court and state high court decisions outside of the DUI context holding that a defendant’s assertion of their Fourth Amendment rights is not admissible evidence to prove guilt.

The Petition further discusses the diverging post-Birchfieldopinions from state courts addressing the issue of whether the Fourth Amendment prohibits States from using refusal evidence to convict a motorist of a DUI offense. State courts in Vermont, Nebraska, and Colorado have all held that such evidence is admissible under the implied consent laws and relied on the dicta in Birchfieldas an endorsement of all evidentiary consequences. On the other hand, state courts in Kentucky and Oregon have decided that States may not use refusal evidence to prove guilt for a DUI offense.

The Petition points out that protecting motorists’ Fourth Amendment rights would not deprive states of their ability to prosecute drunk driving offenses, as they could quickly obtain a warrant for a blood test (absent an exigent circumstance) or perform a breath test

Bell’s Petition presents the Supreme Court with an opportunity to address the significant Fourth Amendment concerns raised by the admission of refusal evidence under state implied consent laws.

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