ND:  U.S. Supreme Court decision affects DUI cases

Republican Herald

By Peter E. Bortner

August 8, 2016

The U.S. Supreme Court recently made it easier for some defendants in driving under the influence cases to challenge blood evidence against them, a change that District Attorney Christine A. Holman said has led to a new policy in Schuylkill County.

“We’re going to be relying on (drug recognition experts)” to prosecute more cases, Holman said Monday.

She said those experts should help police and prosecutors prove motorists were driving under the influence of alcohol or drugs, proof that will be needed if the blood-alcohol samples taken from those drivers either cannot be used as evidence or are not obtained at all because of the court’s ruling.

In Birchfield v. North Dakota, the court ruled that police need a warrant to obtain a blood-alcohol sample, but not to conduct a breath test, on a driver they believe to be under the influence. The court also ruled that a driver cannot be criminally punished for refusing to submit to a blood-alcohol test, although states still can suspend licenses and impose other civil penalties.

However, this restriction does not apply to breath tests, according to Holman.

“The court held that this prohibition did not apply to breath tests,” Holman wrote in the new policy directive she issued to police and her staff members.

She also said she will seek additional funding to buy more Breathalyzer machines for larger police departments in the county.

In the Birchfield case, the court ruled that breath tests are minimally invasive, while blood tests are much more so.

“Such devices can detect the presence of alcohol more quickly and accurately than before,” Justice Samuel A. Alito wrote about breath test machines in the court’s opinion in Birchfield. “Participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest.”

Attorney Joseph P. Nahas, Frackville, said he already has seen changes in prosecution of DUI cases as a result of the Birchfield case, which the court decided on June 23.

“It affects them greatly,” Nahas said Tuesday. “(Lawyers) are changing the way the cross-examine police.”

Additionally, Nahas said, the state Department of Transportation has changed the warnings that are given who refuse to take the blood-alcohol test to remove the provision that they will face increased penalties for refusing a blood-alcohol test.

“They were pressured under that language to voluntarily submit to the test,” Nahas said of drivers.

Nahas said some of the DUI cases will still be prosecuted without a blood-alcohol or breath sample.

“They’re … all turning into general impairment cases,” meaning the driver will be prosecuted for allegedly being sufficiently under the influence of alcohol or drugs so that he or she could not operate a vehicle safely, he said.

Under that provision of the law, no blood-alcohol level is needed to prove the case.

Nahas said he does not know if courts will apply the ruling retroactively. If a ruling is not applied retroactively, it will govern only cases that either arise in the future or are currently in the court system, including ones on appeal.

“It looks like it’s not going to be” retroactive, he said of the Birchfield ruling.

Holman said the ruling will not affect her office’s determination to bring DUI defendants to court.

“We’re still prosecuting to the fullest extent of the law,” she said. “We will adapt to Birchfield.”