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Superior Court Bars Retroactive Application of 'Birchfield'

The Pennsylvania Superior Court has ruled in a published opinion that enhanced penalties applied in cases where defendants refused DUI testing can't be retroactively undone by the U.S. Supreme Court's decision in Birchfield v. North Dakota. A three-judge panel consisting of Judges Judith Ference Olson, Alice Beck Dubow and Correale F. Stevens upheld the dismissal of defendant Jeffrey Olson's Post-Conviction Relief Act appeal in which he claimed his sentencing of one-and-a-half to five years of imprisonment was unconstitutional under Birchfield. In Birchfield, 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.” According to the Superior Court's opinion, written by Dubow, Birchfield could not be retroactively applied to challenge Jeffrey Olson's sentence, which included enhanced penalties for his refusal to consent to a blood draw. Pennsylvania law states that a person convicted of a third or subsequent DUI faces a mandatory minimum of one year in prison; the punishment is enhanced when the person refuses to consent to a blood test. "Pursuant to Birchfield, a sentencing court today could not have sentenced appellant to the mandatory minimum sentence," Dubow said. "However, appellant’s judgment of sentence became final on Jan. 20, 2016, six months before the United States Supreme Court decided Birchfield on June 23, 2016." She added, "Appellant summarily urges this court to conclude, as a matter of first impression, that Birchfield is a new substantive rule that is fully retroactive on timely collateral review." But Dubow said the case law cited by Olson was inapplicable. "The new Birchfield rule, as it applies to Pennsylvania’s DUI statutes providing for enhanced penalties, does not alter the range of conduct or the class of persons punished by the law: DUI remains a crime, and blood tests are permissible with a warrant or consent," Dubow said. "Rather, the new rule precludes application of this mandatory minimum sentencing provision providing an enhanced penalty for appellant’s refusal to submit to blood testing. This change in the Pennsylvania sentencing enhancements applicable to DUI convictions is procedural because the new Birchfield rule regulates only the manner of determining the degree of defendant’s culpability and punishment." David T. Leake was appointed to represent Olson, who is currently incarcerated. Leake could not be reached for comment Thursday. Somerset County Assistant District Attorney Tara Collier did not return a call seeking comment.