What does Birchfield v. North Dakota mean for Pittsburgh DUI cases?

I have received many calls over the past several months asking how the United States Supreme Court decision in Birchfield v. North Dakota 579 US __(2016) affects Pittsburgh DUI cases. Let me preface this discussion by stating that Birchfield does not apply to breath test requests by police because the Supreme Court held that breath tests are less intrusive than blood tests. Thus, if you submitted to, or refused, a breath test Birchfield will have no bearing on your Pittsburgh DUI case.

The Court in Birchfield addressed two major issues regarding blood draw requests. First, whether police need to have a warrant to have blood drawn in DUI cases. Second, whether State DUI laws may impose enhanced criminal penalties for refusing a blood draw request.


In Pennsylvania, when police request that a motorist submits to a blood draw for suspected DUI they must first read a DL-26 form to the person. At the time Birchfield was decided (June of 2016) the form told motorists that they did not have a right to refuse the test and that if they refused their license would be suspended for at least 12 months. Further, some versions of the form stated that they could face additional criminal penalties for refusal. The Birchfield Court ruled that the combination of blood tests being intrusive and the form being coercive in nature required that police obtain a warrant before obtaining a blood sample.

The response of the government in Pennsylvania was to change the DL-26 form to make it less “coercive”. This change was enacted in July of 2016 and PA trial courts seem to believe that these changes to the DL-26 form negate the need for a warrant under Birchfield. Thus, in cases where blood was drawn prior to July of 2017 the blood test results cannot be used, however, those drawn after that date will generally be admitted by PA courts.


Pittsburgh DUI cases carry mandatory minimum sentences which are calculated, in part, on a three-tiered Blood Alcohol Content system. Pennsylvania DUI Law states that refusal to submit to a chemical test places one in Tier III which results in a higher Mandatory Minimum sentence. However, the Birchfield Court stated that while it is legal for a state to impose a civil penalty involving license suspension for refusing a blood test it is unconstitutional for a state to impose an enhanced criminal penalty for refusing a blood draw. The court held that “It is another matter, however, for a State not only to insist upon an intrusive blood test but to impose criminal penalties on the refusal to submit to such a test. 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.” Birchfield v. North Dakota 579 US ___ (2016) (emphasis added). Thus, pursuant to Birchfield, you may have your license suspended for refusing a blood draw but your mandatory minimum sentence must now be calculated as if you were in the lowest Tier.


First, It should be noted that it is possible that Pennsylvania’s appeals courts might rule in the future that the changes to the DL-26 form were not enough and circumstances could change once again. If that were to happen Police would no longer be able to ask for a blood test without a warrant and if they did so those results would be inadmissible.

Many Police Departments cannot afford the cost associated with using a certified Breath Test Machine and have no choice but to rely on blood tests. There is the possibility that the Pennsylvania Legislature could change the DUI Law to allow alternative types of testing as currently only blood or breath testing is allowed under Pennsylvania DUI Law. One possibility that has been circulating is that the DUI Law might be amended to allow Mouth Swabs to determine BAC. Whether these types of tests are actually accurate and whether they would be considered more intrusive than breath tests remains to be seen.

As you can see, Pittsburgh DUI Law – particularly involving blood tests – is an ever-changing area of the Law. If you have been charged with or stopped for, a Pittsburgh DUI you need to contact an experienced Pittsburgh DUI Attorney immediately to have your case analyzed by someone who is experienced and fully aware of the current state of the law.

Pittsburgh DUI Lawyer George Heym is a former DUI Prosecutor who now exclusively defends those charged with DUI. He offers Free Consultation on all DUI cases.

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