[J-29-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 26 WAP 2018
:
Appellee : Appeal from the Order of the Superior
: Court entered February 14, 2018 at
: No. 158 WDA 2017, affirming the
v. : Order of the Court of Common Pleas
: of Somerset County entered
: December 22, 2016, at No. CP-56-
JEFFREY ALAN OLSON, : CR-0000544-2015.
:
Appellant : ARGUED: April 10, 2019
OPINION
JUSTICE WECHT DECIDED: OCTOBER 31, 2019
We granted allowance of appeal to consider whether the holding of Birchfield v.
North Dakota, __ U.S. __, 136 S.Ct. 2160 (2016), constitutes a new rule of law that applies
retroactively on post-conviction collateral review. The Superior Court concluded that
Birchfield set forth a “procedural” rule for purposes of the Teague1 analysis, and, thus,
does not apply retroactively. We affirm.
I. Background
Jeffrey Alan Olson entered an open guilty plea to one count of driving under the
influence of alcohol—general impairment (“DUI”) on September 18, 2015. This was
Olson’s third DUI offense, and, at the time, he was subject to a sentence enhancement
1 See Teague v. Lane, 489 U.S. 288 (1989) (plurality). This Court applies the
Teague framework to questions of retroactivity on collateral review. See, e.g.,
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).
due to his refusal to submit to blood alcohol concentration (“BAC”) testing. On December
21, 2015, the trial court sentenced Olson to a term of eighteen months’ to five years’
imprisonment, applying the then-applicable mandatory minimum sentencing provision.2
Olson did not file a direct appeal, and his judgment of sentence became final on January
20, 2016.
On June 23, 2016, the Supreme Court of the United States decided Birchfield. As
discussed further below, the Birchfield Court held, inter alia, that a state may not “impose
criminal penalties on the refusal to submit” to a warrantless blood test. Id. at 2185.
On August 17, 2016, Olson filed a timely, pro se petition for relief under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, challenging, inter alia, the legality
of his sentence in light of Birchfield. The PCRA court appointed counsel for Olson, and
held a hearing on October 24, 2016. Olson filed a counseled, amended PCRA petition
on November 8, 2016. After the PCRA court dismissed Olson’s petition on December 23,
2016, Olson appealed the PCRA court’s order to the Superior Court.
2 Olson pleaded guilty to an offense under 75 Pa.C.S. § 3802(a)(1). At the time of
Olson’s sentencing, the applicable sentencing statute provided, in relevant part, that:
An individual who violates section 3802(a)(1) and refused testing of blood
or breath . . . shall be sentenced as follows:
* * *
(3) For a third or subsequent offense, to:
(i) undergo imprisonment of not less than one year;
(ii) pay a fine of not less than $2,500; and
(iii) comply with all drug and alcohol treatment requirements
imposed under sections 3814 and 3815.
75 Pa.C.S. § 3804(c)(3) (amended July 20, 2017). This provision since has been
amended so as to apply to individuals who “refused testing of breath . . . or testing of
blood pursuant to a valid search warrant.” 75 Pa.C.S. 3804(c) (emphasis added).
[J-29-2019] - 2
The Superior Court affirmed. Commonwealth v. Olson, 179 A.3d 1134 (Pa. Super.
2018). The court recognized that Birchfield rendered unconstitutional the imposition of
enhanced criminal penalties due to the refusal to submit to warrantless blood testing,
such that “a sentencing court today could not have sentenced [Olson] to the mandatory
minimum sentence under Section 3804(c)(3).” Id. at 1138. However, because Olson’s
judgment of sentence already was final, the Superior Court reasoned, Olson would be
entitled to benefit from Birchfield’s application only if the decision were deemed to apply
retroactively on collateral review.
Setting forth the governing legal standard, the Superior Court noted that, pursuant
to the Teague framework, “an old rule applies both on direct and collateral review, but a
new rule is generally applicable only to cases that are still on direct review.” Id. at 1139
(quoting Commonwealth v. Ross, 140 A.3d 55, 59 (Pa. Super. 2016)). New rules apply
retroactively in a collateral proceeding, the court observed, only if the rule is “substantive,”
or constitutes a “watershed rule of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding.” Id. (internal quotation marks omitted).
With regard to the distinction between substantive and procedural rules, the Superior
Court summarized: “Substantive rules are those that decriminalize conduct or prohibit
punishment against a class of persons. Rules that regulate only the manner of
determining the defendant’s culpability are procedural.” Id. (quoting Ross, 140 A.3d at
59; capitalization modified).
After observing the operation of the applicable sentencing statute, which
“effectively increases the punishment when a driver refuses to consent to a blood test,”
id., the Superior Court applied the Teague standard as follows:
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. Rather, the new rule precludes
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application of this mandatory minimum sentencing provision providing an
enhanced penalty for [Olson’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.
Id. Having deemed the Birchfield rule “procedural” rather than “substantive,” the Superior
Court thus determined that “Birchfield does not apply retroactively in Pennsylvania to
cases pending on collateral review.” Id. Accordingly, although Olson received a sentence
that was facially invalid under Birchfield, the Superior Court concluded that Olson could
not benefit from Birchfield’s application because his judgment of sentence was final when
Birchfield was decided.
We granted Olson’s petition for allowance of appeal in order to address the
following questions:
a. Does Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160, 195 L.Ed.2d
560 (2016), apply retroactively where the petitioner challenges the legality
of his sentence through a timely petition for post-conviction relief?
b. Does Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160, 195 L.Ed.2d
560 (2016), render enhanced criminal penalties for blood test refusal under
75 Pa.C.S. §§ 3803-3804 illegal?
Commonwealth v. Olson, 190 A.3d 1131 (Pa. 2018) (per curiam).
II. Analysis
(A) Legality of Sentence
After we granted allowance of appeal in this matter, this Court decided
Commonwealth v. Monarch, 200 A.3d 51 (Pa. 2019), which resolved the second question
presented. In Monarch, we concluded that, “[u]nder Birchfield, it is clear the enhanced
mandatory minimum sentences authorized by the statute are unconstitutional when
based on a refusal to submit to a warrantless blood test.” Id. at 57. We held that a
challenge to such a sentence implicates the sentence’s legality, and thus is nonwaivable
[J-29-2019] - 4
and may be raised by a court sua sponte. Accordingly, the question in this appeal relating
to the legality of sentence is fully answered by Monarch. However, this observation does
not resolve the matter of Olson’s sentence, inasmuch as “a new rule of law does not
automatically render final, pre-existing sentences illegal.” Washington, 142 A.3d at 814.
Rather, a “finding of illegality, concerning such sentences, may be premised on such a
rule only to the degree that the new rule applies retrospectively.” Id. We therefore turn
to the central issue raised in this appeal.
(B) Retroactivity
The determination of whether a new rule is to be applied retroactively on collateral
review presents a question of law, as to which our standard of review is de novo and our
scope of review is plenary. Washington, 142 A.3d at 814. In order to situate the parties’
competing approaches to this question, it is helpful to summarize both the rationale of
Birchfield and the legal standard that this Court applies to questions of retroactivity—the
Teague v. Lane framework.
(1) The Teague Framework
When a decision of the Supreme Court of the United States results in a “new rule,”
that “rule applies to all criminal cases still pending on direct review.” Schriro v. Summerlin,
542 U.S. 348, 351 (2004) (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)).3
However, “[u]nder Teague, a new constitutional rule of criminal procedure does not apply,
as a general matter, to convictions that were final when the new rule was announced.”
Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718, 728 (2016). There are, however,
“two categories of rules” that are exempt from Teague’s “general retroactivity bar,” id.,
3 A “new” ruling is “defined as one that ‘breaks new ground or imposes a new
obligation on the States or Federal Government,’ or, stated otherwise, where ‘the result
was not dictated by precedent existing at the time the defendant’s conviction became
final.’” Commonwealth v. Hughes, 865 A.2d 761, 780 (Pa. 2004) (quoting Teague, 489
U.S. at 301).
[J-29-2019] - 5
which a defendant may invoke notwithstanding the finality of his or her judgment of
sentence. First, “[n]ew substantive rules generally apply retroactively.” Schriro, 542 U.S.
at 351. Second, a much narrower class of “watershed rules of criminal procedure” also
apply retroactively. The High Court has described such “watershed” rules as those that
“implicat[e] the fundamental fairness and accuracy of the criminal proceeding.” Id. at 352
(internal quotation marks omitted). Because no party in the instant case contends that
Birchfield announced a “watershed” rule of criminal procedure, we are here concerned
only with the first category, and its attendant determination of whether the Birchfield rule
is “substantive.” See Commonwealth v. Spotz, 896 A.2d 1191, 1243 (Pa. 2006) (“For
purposes of retroactivity analysis, we distinguish between new rulings involving
substantive criminal law, which are applied retroactively on collateral review, and new
procedural rulings of constitutional dimension, which are generally subject only to
prospective application.”).
Substantive rules include those “forbidding criminal punishment of certain primary
conduct” or “prohibiting a certain category of punishment for a class of defendants
because of their status or offense.” Montgomery, 136 S.Ct. at 728. “A rule is substantive
rather than procedural if it alters the range of conduct or the class of persons that the law
punishes.” Schriro, 542 U.S. at 353. Substantive rules “set forth categorical constitutional
guarantees that place certain criminal laws and punishments altogether beyond the
State’s power to impose.” Montgomery, 136 S.Ct. at 729. Procedural rules, by contrast,
“are designed to enhance the accuracy of a conviction or sentence by regulating ‘the
manner of determining the defendant’s culpability.’” Id. at 730 (quoting Schriro, 542 U.S.
at 353) (emphasis omitted). “They do not produce a class of persons convicted of conduct
the law does not make criminal, but merely raise the possibility that someone convicted
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with use of the invalidated procedure might have been acquitted otherwise.” Schriro, 542
U.S. at 352.
With these classifications in mind, we survey the Court’s reasoning in Birchfield
and the contours of the rule articulated therein.
(2) Birchfield
Birchfield concerned the legality of a particular consequence—criminal
punishment—widely imposed by state “implied consent” laws. By way of background,
because DUI laws generally prohibit the operation of a motor vehicle with a BAC over a
specified level, and because the acquisition of BAC evidence necessitates testing
procedures with which a motorist’s cooperation is either required or highly preferred,
states all have adopted “implied consent” laws in order to “find a way of securing such
cooperation.” Birchfield, 136 S.Ct. at 2168. “These laws impose penalties on motorists
who refuse to undergo testing when there is sufficient reason to believe they are violating
the State’s drunk-driving laws.” Id. at 2166. One common consequence of BAC test
refusal was the imposition of criminal penalties. It was this consequence that was the
focus of the Birchfield Court’s analysis. See id. at 2172 (“We granted certiorari . . . in
order to decide whether motorists lawfully arrested for drunk driving may be convicted of
a crime or otherwise penalized for refusing to take a warrantless test measuring the
alcohol in their bloodstream.”).
The most common BAC tests—breath tests and blood tests—both indisputably
constitute searches under the Fourth Amendment. See Birchfield, 136 S.Ct. at 2173
(citing Skinner v. Ry. Labor Execs.’ Ass’n., 489 U.S. 602, 616-17 (1989); Schmerber v.
California, 384 U.S. 757, 767-68 (1966)). Thus, although one of the petitioners in
Birchfield refused a blood test, one refused a breath test, and one submitted to a blood
[J-29-2019] - 7
test following a police officer’s provision of “implied consent” warnings, the Court’s
overarching approach to all three cases was the same:
Despite these differences, success for all three petitioners depends on the
proposition that the criminal law ordinarily may not compel a motorist to
submit to the taking of a blood sample or to a breath test unless a warrant
authorizing such testing is issued by a magistrate. If, on the other hand,
such warrantless searches comport with the Fourth Amendment, it follows
that a State may criminalize the refusal to comply with a demand to submit
to the required testing, just as a State may make it a crime for a person to
obstruct the execution of a valid search warrant.
Id. at 2172. The Court, thus, analyzed the question before it “by considering whether the
searches demanded in these cases were consistent with the Fourth Amendment.” Id. at
2173.
The Birchfield Court ultimately drew a constitutionally significant line between
breath testing and blood testing. The Court held that, because “breath tests are
significantly less intrusive than blood tests and in most cases amply serve law
enforcement interests, . . . a breath test, but not a blood test, may be administered as a
search incident to a lawful arrest for drunk driving.” Id. at 2185. Because a warrantless
breath test thus is categorically valid under the search-incident-to-arrest exception to the
warrant requirement, the Court held, a motorist has “no right to refuse it,” and criminal
penalties may be imposed upon the failure to submit to it. Id. at 2186. By contrast, the
Court held that “[b]lood tests are significantly more intrusive, and their reasonableness
must be judged in light of the availability of the less invasive alternative of a breath test.”
Id. at 2184. The Court observed that the government had “offered no satisfactory
justification for demanding the more intrusive alternative without a warrant.” Id. Thus,
the Birchfield Court found no categorical exception to the warrant requirement for blood
[J-29-2019] - 8
tests.4 Absent a valid basis upon which to demand an intrusive blood test without a
search warrant, the Court held that a state cannot “impose criminal penalties on the
refusal to submit to such a test.” Id. at 2185.
Accordingly, although Birchfield has significant implications for the legality of
criminal sentencing, see Monarch, supra, such considerations are derivative of the
Court’s reasoning with regard to the validity of the underlying search. We now consider
the parties’ respective positions as to whether the Birchfield rule should be deemed
“substantive” for purposes of Teague’s retroactivity analysis.
(3) Arguments
Preliminarily, we note that there is no dispute that Birchfield announced a “new”
rule of law. The Commonwealth observes that, before Birchfield, warrantless blood tests
were viewed as categorically valid under Schmerber, supra, and South Dakota v. Neville,
459 U.S. 553 (1983), and that “Birchfield dramatically departed from that precedent and
is clearly new.” Brief for Commonwealth at 6 n.2. Accordingly, and because Teague’s
exception for “watershed rules of criminal procedure” is not at issue, see id. at 7, the
parties focus narrowly upon the definition of a “substantive” rule for purposes of Teague.
Olson relies heavily upon Montgomery, wherein the Supreme Court of the United
States held that the constitutional rule of Miller v. Alabama, 567 U.S. 460 (2012), which
prohibited mandatory sentences of life imprisonment for juveniles, is substantive and
applies retroactively. Olson emphasizes Montgomery’s statement that substantive rules
“set forth categorical constitutional guarantees that place certain criminal laws and
4 Recently, in Mitchell v. Wisconsin, __ U.S. __, 139 S.Ct. 2525 (2019) (plurality),
the Court held that the exigent circumstances exception to the warrant requirement
generally will apply to blood tests conducted upon motorists who are “unconscious and
therefore cannot be given a breath test.” Id. at 2531. Although the Mitchell Court did not
cast its holding as a “categorical” exception to the warrant requirement, it nonetheless
stated that the exigency exception will “almost always” apply to unconscious motorists.
Id.
[J-29-2019] - 9
punishments altogether beyond the State’s power to impose.” Brief for Olson at 12
(quoting Montgomery, 136 S.Ct. at 729). This characterization fits Birchfield, Olson
contends, because “Birchfield set forth a categorical constitutional guarantee against the
criminalization of the refusal of blood draws, which put beyond Pennsylvania’s power [the
imposition of] enhanced criminal laws and punishments.” Id. at 13. Thus, Olson argues,
“any Pennsylvania statute that criminalizes the refusal of a blood test is unconstitutional.”
Id.
Olson further analogizes Birchfield to Miller—which announced the juvenile
sentencing rule later deemed substantive in Montgomery—noting that both decisions
“resulted in the invalidation of state mandatory sentencing statutes.” Id. Finally, Olson
argues that the Birchfield rule cannot be deemed procedural because an “invalid
procedural rule can be applied at trial, but result in a legal and just conviction.” Id. The
failure to apply Birchfield in a DUI case involving blood test refusal, however, will result in
imposition of the enhanced criminal penalties that the Birchfield Court forbade, producing
an “unjust and illegal result.” Id. at 14. Thus, Olson contends, Birchfield set forth a
substantive rule that should be applied retroactively on collateral review, entitling him to
relief.
The Commonwealth disagrees with Olson’s suggestion that Birchfield placed a
“categorical” prohibition upon criminal punishment for blood test refusal, inasmuch as the
Court “held only that a warrant or exigent circumstances are necessary to justify the
demand for the test.” Brief for Commonwealth at 9. This is unlike certain other types of
“primary” conduct that the Supreme Court has placed beyond the power of the
government to punish, the Commonwealth observes, such as consensual homosexual
activity, or the burning of an American flag. Id. at 10 (citing Lawrence v. Texas, 539 U.S.
558 (2003); Texas v. Johnson, 491 U.S. 397 (1989)). Unlike these sorts of conduct, blood
[J-29-2019] - 10
test refusal is not altogether beyond the government’s power to criminalize. Rather, the
Commonwealth argues, Birchfield merely placed a condition that must be satisfied before
criminal punishment may be imposed: “The state must take steps—obtaining a warrant
or proving exigent circumstances—to justify its demand for a blood test, as a Fourth
Amendment search, in order to criminally sanction refusal.” Id. at 11. “But the ‘primary,
private individual conduct,’ both before and after the new decision,” i.e., blood test refusal,
“remains exactly the same.” Id.
In this regard, the Commonwealth compares Birchfield to Alleyne v. United States,
570 U.S. 99 (2013), wherein the High Court held that any fact that increases the
mandatory minimum sentence for a crime is an “element” that must be submitted to the
jury and proven beyond a reasonable doubt. See Brief for Commonwealth at 11. Alleyne
did not prohibit mandatory minimum sentences as a categorical matter, the
Commonwealth explains, but rather set forth a procedural requirement that must be
satisfied in order to justify their imposition. The Commonwealth maintains that the “same
is true of Birchfield.” Id. The Commonwealth further notes that, in Washington, supra,
this Court concluded that the Alleyne rule is not substantive. The Commonwealth
encourages us to reach the same conclusion here.
The Commonwealth volunteers three decisions of our sister states that have
characterized the Birchfield rule as substantive. See id. at 15 (citing Morel v. State, 912
N.W.2d 299 (N.D. 2018); Johnson v. State, 916 N.W.2d 674 (Minn. 2018); State v.
Vargas, 404 P.3d 416 (N.M. 2017)). The Commonwealth contends that these decisions
were erroneous because each viewed the conduct in question as warrantless blood test
refusal, rather than simply blood test refusal. The Commonwealth argues that this overlay
is misguided because the conduct of the motorist—refusing to submit to a blood test—is
the same regardless of whether police officers obtain a search warrant for the test.
[J-29-2019] - 11
Further, it is inaccurate to characterize Birchfield as categorically barring criminal
sanctions for “warrantless refusal,” the Commonwealth argues, because there are
situations in which a blood test may be valid under the Fourth Amendment even absent
a warrant, to wit, where exigent circumstances are present. Id. at 15. Accordingly, the
Commonwealth encourages us not to follow the holdings of the North Dakota, Minnesota,
and New Mexico courts.
Finally, the Commonwealth observes that other categories of substantive rules
have no application herein, such as the class of rules that “narrow the scope of a criminal
statute by interpreting its terms,” or prohibit “a certain category of punishment for a class
of defendants because of their status or offense.” Id. at 16-17 (quoting Welch v. United
States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016); Montgomery, 136 S.Ct. at 732). With
regard to statutory interpretation, the Commonwealth notes that Birchfield did not hinge
upon the interpretation of any particular statute, but rather set forth a constitutional rule
of widespread application. Further, unlike Miller and Montgomery, which were premised
upon “group characteristics” of juveniles, Birchfield “did not define a class, or discuss the
characteristics of any group, much less immunize anyone due to the attributes of their
class.” Id. at 16-17. Accordingly, the Commonwealth maintains that the Birchfield rule
does not fit within any of the categories that define substantive rules, and, thus, should
not be held to apply retroactively to defendants whose judgments of sentence are final.
(4) Discussion
We agree with the Commonwealth in all material respects. First, as is clear from
the manner in which the Birchfield Court approached the question before it, the prohibition
of criminal penalties for blood test refusal was in no way “categorical.” Rather, Birchfield
held that, as searches within the meaning of the Fourth Amendment, compliance with
breath or blood testing may be compelled, and criminal penalties may be imposed for
[J-29-2019] - 12
refusal to comply therewith, provided that the tests are “consistent with the Fourth
Amendment.” Birchfield, 136 S.Ct. at 2173. In other words, the lawfulness of the criminal
penalty that attaches to BAC test refusal is solely dependent upon the validity of the test
as a Fourth Amendment matter. If the test—indisputably a search—is valid under the
Fourth Amendment, “it follows that a State may criminalize the refusal to comply with a
demand to submit to the required testing, just as a State may make it a crime for a person
to obstruct the execution of a valid search warrant.” Id. at 2172.
The fact that the Birchfield Court identified no categorical exception to the warrant
requirement for blood testing, as it did for breath testing, does not mean that criminal
penalties for blood test refusal are “altogether beyond the State’s power to impose.”
Montgomery, 136 S.Ct. at 729. Most obviously, the acquisition of a search warrant
indisputably validates such a test; renders it “consistent with the Fourth Amendment,”
Birchfield, 136 S.Ct. at 2173; vitiates the right of the motorist to refuse it; and thus serves
as a valid justification for the imposition of enhanced criminal penalties for the refusal to
comply.5 Further, the Birchfield Court repeatedly referred to the potential applicability of
the exigent circumstances exception to the warrant requirement, which, if established,
also may validate a warrantless blood test. See, e.g., id. at 2184 (“Nothing prevents the
police from seeking a warrant for a blood test when there is sufficient time to do so in the
particular circumstances or from relying on the exigent circumstances exception to the
warrant requirement when there is not.”). Because a warrantless blood test that is justified
by an exigency also would “comport with the Fourth Amendment,” id. at 2172, Birchfield
5 In this regard, it is noteworthy that the General Assembly has recognized this by
amending the applicable statute so as to provide for enhanced criminal penalties when a
motorist is convicted of DUI and “refused testing of breath . . . or testing of blood pursuant
to a valid search warrant.” 75 Pa.C.S. 3804(c) (emphasis added); see supra n.2.
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does not prohibit the imposition of criminal penalties for the refusal to submit to such a
test.
The potential applicability of the exigent circumstances exception is one reason
that we respectfully disagree with the Supreme Courts of North Dakota, Minnesota, and
New Mexico. As the Commonwealth observes, in Morel, Johnson, and Vargas, the
Courts viewed the conduct in question as the refusal to submit to a warrantless blood test.
See Morel, 912 N.W.2d at 305 (“The Birchfield decision held unconstitutional the
imposition of criminal penalties for refusing to submit to a warrantless blood test . . .
effectively altering the range of conduct the law punishes.”); Vargas, 404 P.3d at 420
(“Birchfield bars criminal sanctions previously imposed upon a subject for refusing to
submit to warrantless blood tests.”); Johnson, 916 N.W.2d at 683 (“The Birchfield rule has
placed a category of conduct outside the State’s power to punish. Now, a suspected
impaired driver may only be convicted of test refusal if that person refused a breath test
or refused a blood or urine test that was supported by a warrant or a valid warrant
exception. The Birchfield rule therefore is substantive.”). However, because the exigent
circumstances exception can provide a means to validate a warrantless blood test, and
because it is the validity of the search under the Fourth Amendment that is significant to
the Birchfield rule, it is clear that the prohibition of criminal punishment for warrantless
blood test refusal is not categorical.
Chief Justice Saylor dissents as to this point, astutely observing that a motorist
faced with a demand for a warrantless blood test generally will be unable to discern
whether such a warrantless search is justified by exigent circumstances, inasmuch as
that determination often will depend upon an array of factors known only to law
enforcement. See Dissenting Opinion at 2. We agree with the Chief Justice that this
scenario presents a number of difficulties that, as a practical matter, may render exigent
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circumstances an inadequate substitute for a search warrant as it concerns a motorist’s
ability to ascertain whether a demand for a blood test is valid, and consequently whether
enhanced criminal penalties lawfully may attach to a refusal. The Chief Justice also
correctly observes that an inquiry into the existence of exigent circumstances is not
encompassed within the relevant statutory provision, as amended. Id. (citing 75 Pa.C.S.
§ 3804(c)); see supra nn. 2 & 5.
Nonetheless, the determination of whether a constitutional rule is substantive for
purposes of Teague does not depend upon case-specific outcomes, nor does it turn upon
the attributes of any particular statutory scheme. Our task is to ascertain the character of
the rule as a constitutional matter. Despite the Chief Justice’s apt criticism of the viability
of reliance upon the exigent circumstances exception in this arena, the fact remains that
the Birchfield Court’s articulation of its rule revolved around the validity of the search
under the Fourth Amendment, and such validity may be established by a demonstration
of exigent circumstances.6 Thus, notwithstanding the difficulties that may arise in
practice, and notwithstanding whether the applicable statute allows for such an inquiry in
Pennsylvania courts, Birchfield suggests that, as a purely constitutional matter, the
6 Indeed, in applying its holding to the cases before it, the Birchfield Court reasoned:
Petitioner Birchfield was criminally prosecuted for refusing a warrantless
blood draw, and therefore the search he refused cannot be justified as a
search incident to his arrest or on the basis of implied consent. There is no
indication in the record or briefing that a breath test would have failed to
satisfy the State’s interests in acquiring evidence to enforce its drunk-driving
laws against Birchfield. And North Dakota has not presented any case-
specific information to suggest that the exigent circumstances exception
would have justified a warrantless search. Unable to see any other basis
on which to justify a warrantless test of Birchfield’s blood, we conclude that
Birchfield was threatened with an unlawful search and that the judgment
affirming his conviction must be reversed.
Birchfield, 136 S.Ct. at 2186 (emphasis added; citation omitted).
[J-29-2019] - 15
presence or absence of exigent circumstances remains relevant to the analysis. This
observation, in turn, reveals the absence of a categorical prohibition of criminal penalties
for refusal to submit to warrantless blood testing.
In any event, the potential applicability of the exigent circumstances exception is
not alone dispositive of the character of the Birchfield rule. More fundamentally, we agree
with the Commonwealth that Birchfield did not alter “the range of conduct or the class of
persons that the law punishes.” Schriro, 542 U.S. at 353. Without regard to the presence
or absence of a search warrant, the “conduct” of the motorist remains the same: refusing
to submit to a blood test. As the Commonwealth emphasizes, Birchfield did not designate
the act of refusing a blood test as constitutionally protected conduct under all
circumstances, and thus categorically outside the reach of the criminal law. To the
contrary, Birchfield placed a procedural obligation upon the police that, when satisfied,
authorizes the demand for a blood test and thus permits criminal penalties for refusal.
Stated otherwise, the permissibility of compelling compliance with a blood test, and the
concomitant availability of criminal penalties for refusal, do not depend upon the actions
of the motorist. Rather, the dispositive consideration is whether the actions of the police
officers comport with the Fourth Amendment. Accordingly, we reject our sister states’
overlay of the absence of a warrant upon the characterization of the conduct of the
motorist that is subject to punishment.
We also find merit in the Commonwealth’s analogy to Alleyne, at least in broad
strokes. As the Commonwealth emphasizes, Alleyne did not prohibit mandatory minimum
sentences as a categorical matter. Instead, Alleyne set forth a procedural requirement
that must be satisfied before such a sentence may be imposed: “any fact that increases
the mandatory minimum is an ‘element’ that must be submitted to the jury.” Alleyne, 570
U.S. at 103. Birchfield, likewise, set forth a procedural requirement that must be satisfied
[J-29-2019] - 16
before the refusal to submit to a blood test may be criminally punished: compliance with
the warrant requirement. Neither decision places a category of punishment “altogether
beyond the State’s power to impose.” Montgomery, 136 S.Ct. at 729. Rather, both
decisions set forth conditions necessary to the imposition of such punishment. As noted,
this Court already has concluded that the Alleyne rule is not substantive for purposes of
Teague. See Washington, supra.
Olson’s reliance upon Montgomery is misplaced. Montgomery’s characterization
of the Miller rule as substantive was premised upon class-based considerations relating
to juvenile offenders. See Montgomery, 136 S.Ct. at 734 (“Because Miller determined
that sentencing a child to life without parole is excessive for all but ‘the rare juvenile
offender whose crime reflects irreparable corruption,’ it rendered life without parole an
unconstitutional penalty for ‘a class of defendants because of their status’—that is,
juvenile offenders whose crimes reflect the transient immaturity of youth. As a result,
Miller announced a substantive rule of constitutional law.”) (internal citations omitted).
Unlike Miller and Montgomery, Birchfield did not hinge upon the attributes of any particular
class of defendants. Further, because Birchfield’s holding was not premised upon the
interpretation of any particular statute, the category of substantive rules that “narrow the
scope of a criminal statute by interpreting its terms,” Schriro, 542 U.S. at 351, is plainly
inapplicable.
We recognize that the Birchfield rule does not fit neatly into the typical definition of
a “procedural” rule as one that is “designed to enhance the accuracy of a conviction or
sentence by regulating ‘the manner of determining the defendant’s culpability.’”
Montgomery, 136 S.Ct. at 730 (quoting Schriro, 542 U.S. at 353) (emphasis omitted).
However, Teague sets forth a “general retroactivity bar” for purposes of collateral review,
id. at 728, and substantive rules are an exception to that general rule. Accordingly, if a
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new rule does not meet the definition of “substantive” within the meaning of Teague, that
conclusion is dispositive.
Because Birchfield did not set forth a “categorical constitutional guarantee” that
places criminal punishment for blood test refusal “altogether beyond the State’s power to
impose,” id. at 729, but, rather, established a procedural requirement that, once satisfied,
authorizes that punishment, the Birchfield rule is not substantive. Accordingly, Birchfield
does not apply retroactively on post-conviction collateral review.
The order of the Superior Court is affirmed.
Justices Baer, Todd and Dougherty join the opinion.
Justice Mundy files a concurring opinion.
Chief Justice Saylor and Justice Donohue file dissenting opinions.
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