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 Pennsylvaniappellate 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 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 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.