[caption id="attachment_12850" align="alignnone" width="620"] Credit: Marian Weyo/Shutterstock.com[/caption] The Pennsylvania Supreme Court has granted allocatur in a DUI case to tackle one seemingly straightforward question: "Should Birchfield v. North Dakota apply to all cases not yet final when the decision was rendered?" The justices agreed to take up the case in a one-page order issued July 24 in Commonwealth v. Hays. The court is now set to decide whether DUI defendants are entitled to relief under the U.S. Supreme Court's 2016 decision in Birchfield, which barred criminal penalties for refusing to submit to a warrantless blood draw, even if they previously failed to challenge the blood draw, so long as their cases were still ongoing at the time Birchfield came down. The justices held in June 2016 that warrantless blood tests taken pursuant to implied consent laws are an unconstitutional invasion of privacy. The high court said, “Motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” In Hays, the state Superior Court ruled that a defendant Kirk Hays had waived his Birchfield argument because he failed to challenge the blood draw at trial. Instead, he first raised the Birchfield defense in a post-sentence motion seeking to suppress the blood draw evidence after being convicted of DUI and given five days to six months in jail. Lycoming County Court of Common Pleas Judge Nancy Butts granted Hays a new trial but the Superior Court reversed that decision, citing its own recent decision in Commonwealth v. Moyer, in which it ruled that a defendant who failed to preserve a challenge to a warrantless blood draw at trial was not entitled to the retroactive application of Birchfield post-conviction. "In Pennsylvania, it has long been the rule that criminal defendants are not entitled to retroactive application of a new constitutional rule unless they raise and preserve the issue during trial," the Moyer court said. The Hays court said it was required to reach the same conclusion. "We agree with the commonwealth and conclude that, since defendant did not raise any claim at, or before, trial that his consent to the blood draw was involuntary, the trial court erred in granting defendant’s post-sentence motion," Judge Judith Ference Olson wrote for a three-judge panel, which also included Judges Lillian Harris Ransom and Mary Jane Bowes. Lycoming County District Attorney Kenneth Osokow did not return a call for comment on the allocatur grant. Hays' attorney, Timothy Barrouk of The McShane Firm in Harrisburg, also did not return a call for comment. Hays is the second case the state Supreme Court has agreed to take up this year involving warrantless blood draw evidence and Birchfield's applicability. Both are from Lycoming County. The court granted allocatur in Commonwealth v. Bell on April 5, agreeing to consider a single issue: “Whether Section 1547(e) of the Vehicle Code, 75 Pa.C.S. Section 1547(e), is violative of Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution to the extent that it permits evidence of an arrestee’s refusal to submit a sample of blood for testing without a search warrant as proof of consciousness of guilt at the arrestee’s trial on a charge of DUI?” Last July, the Superior Court reversed a Lycoming County trial judge’s decision to grant defendant Thomas Bell a new trial after he was convicted on a DUI charge and a summary traffic violation. Lycoming County Judge Dudley Anderson, relying on the U.S. Supreme Court’s 2016 ruling in Birchfield, had found that admitting Bell’s refusal into evidence at trial violated his Fourth Amendment right to be free from unreasonable searches. But Judge Correale Stevens, writing for the Superior Court, said both federal and state court precedent have held that defendants who are lawfully arrested for DUI do not have a constitutional right to refuse a warrantless blood test. In the 1983 case South Dakota v. Neville, the U.S. Supreme Court concluded that the admission of evidence of a defendant’s blood test refusal did not violate either the Fifth Amendment right against self-incrimination or the 14th Amendment right to due process. In its 1997 decision in Commonwealth v. Graham, the Superior Court held that a driver’s right to refuse a warrantless blood draw is derived from the state’s Implied Consent Law, not the Constitution. “Based on the reasoning set forth in Neville and Graham, we find appellee had no constitutional right to refuse a blood test upon his lawful arrest for DUI and thus, it was constitutionally permissible for the prosecution to introduce evidence of this refusal at his trial on DUI charges,” Stevens said. Stevens also called the trial court’s reliance on Birchfield “misplaced” because that decision held only that it was unconstitutional for implied consent laws to criminalize a driver’s refusal to submit to chemical testing. The Birchfield court expressed approval of civil penalties and evidentiary consequences for drivers who refuse chemical testing, Stevens said. “The Supreme Court’s decision in Birchfield did not provide that … an individual has a constitutional right to refuse a warrantless blood test, but stressed that ‘there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads,’” Stevens said, adding, “Based on the Supreme Court’s language approving civil penalties set forth in implied consent laws, we conclude that it is reasonable to deem motorists to have consented to civil penalties such as license suspension and evidentiary consequences if they choose to refuse to submit to chemical testing upon a lawful arrest for DUI.” Stevens was joined in the decision by Judges Jacqueline Shogan and Geoffrey Moulton.