Gambone Law - August 2019

Gambone Law

Licensed in Pennsylvania and New Jersey


August 2019

What It Means for Your Case PennDOT’s New DUI Form

“The U.S. Supreme Court ruled that blood evidence will be inadmissible if the police do not obtain a search warrant prior to the blood draw.”

in Pennsylvania carry mandatory minimum jail sentences, even for first- time offenders, making the admissibility of blood evidence critical.

Blood tests, while more accurate than breathalyzers, need to be done under strict guidelines or can be voided. In the U.S. Supreme Court case of Birchfield v. North Dakota, this exact complication occurred, dramatically changing the way drunk driving is prosecuted throughout the country. The PennDOT DL-26 form had specifically mentioned criminal penalties that the Supreme Court found unconstitutional in the case. Following this decision, the U.S. Supreme Court ruled that blood evidence will be inadmissible if the police do not obtain a search warrant prior to the blood draw. In the Birchfield decision, the U.S. Supreme Court found that because a blood draw is so invasive, it triggers a person’s Fourth Amendment right against illegal search and seizure. However, the Court did not arrive at the same conclusion for breath tests because it found that these types of alternative tests are not intrusive. Since the Birchfield decision, Pennsylvania has modified its consent to chemical testing form, DL-26B, and now requires a law enforcement officer to verbally inform a person of their rights related to chemical testing, also called an “O’Connell warning.” While the original form violated the U.S. Supreme Court’s decision, the modified form conforms to the decision. It doesn’t mention any type of criminal penalties, only that a person will face a civil license suspension. If you’re charged with a DUI in Pennsylvania, it’s important to understand that your attorney cannot solely rely on the Birchfield decision anymore, especially if your case involves the modified DL-26 form. Please feel free to call my firm or visit my website to learn more about DUI defenses involving blood draws and breathalyzers. –Alfonso Gambone

Breathalyzers and blood tests are two primary ways police obtain a person’s blood alcohol concentration (BAC) in the state of Pennsylvania. While a breathalyzer is much more convenient than a blood test, it is far less accurate. The device uses a sample of a person’s breath by a coefficient factor to arrive at a number which, theoretically, is the amount of alcohol in their bloodstream. The legal amount of BAC is .08 in both Pennsylvania and New Jersey. When a person takes a breathalyzer or blood test and their BAC is higher than this number, they are considered legally impaired and can be arrested and charged with a DUI. While a breathalyzer test can provide substantial proof the prosecution needs to establish their case, they will need chemical evidence to convict a person in violation of more serious statutes. Several subsections of DUI law

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