                              [J-29-2019][M.O. - Wecht, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                  WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,                 :   No. 26 WAP 2018
                                              :
                      Appellee                :   Appeal from the Order of the Superior
                                              :   Court entered on 2/14/18 at No. 158
                                              :   WDA 2017 affirming the order of the
                 v.                           :   Court of Common Pleas of Somerset
                                              :   County entered 12/22/16 at No. CP-56-
                                              :   CR-0000544-2015
JEFFREY ALAN OLSON,                           :
                                              :
                      Appellant               :   ARGUED: April 10, 2019




                                  DISSENTING OPINION


CHIEF JUSTICE SAYLOR                              DECIDED: OCTOBER 31, 2019

      I respectfully dissent, since I agree with the jurisdictions which have held that the

rule set forth in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016), is

substantive in character. See Johnson v. State, 916 N.W.2d 674, 684 (Minn. 2018);

Morrel v. North Dakota, 912 N.W.2d 299, 305 (N.D. 2018); New Mexico v. Vargas, 404

P.3d 416, 420 (N.M. 2017). Specifically, “Birchfield bars criminal sanctions previously

imposed upon a subject for refusing to submit to warrantless blood tests,” and therefore,

places “certain kinds of primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe.” Id. (quoting Teague v. Lane, 489 U.S. 288,

307, 109 S. Ct. 1060, 1073 (1989)).

      The majority places substantial reliance on the availability of the exigent

circumstances exception to the warrant requirement to demonstrate that refusals are

not beyond the power of the Legislature to forbid. See Majority Opinion, slip op. at 13-
14. No explanation is provided, however, of how a person subject to a request (or

demand) by police to submit to a blood test is to know whether, or to what extent,

officers are faced with exigent circumstances.           Indeed, most often the exigent

circumstances determination will depend on close post hoc judgments by reviewing

courts concerning an array of factors that would at the time be known only to police

(including the pressing nature of their investigative duties, the availability of personnel

and resources, and the proximity of facilities and necessary equipment).                If the

majority’s rationale is to prevail, I fail to see how the constitutional right of refusal

confirmed in Birchfield could be afforded meaningful protection, given that the

availability of this ostensible right will likely be unknowable to individuals at the time they

are subject to law enforcement demands.           Accordingly, in the terms of the Fourth

Amendment itself, it seems to me that -- relative to the criminalization of refusals --

reliance on exigent circumstances to defeat the right to refuse is “unreasonable.” U.S.

CONST., amend. IV.

       Notably, in the aftermath of Birchfield, the Pennsylvania Legislature has not

attempted to criminalize refusals in the presence of exigent circumstances.             It did,

however, amend Section 3804 of the Vehicle Code to criminalize blood-test refusals

where police have secured a valid search warrant. See 75 Pa.C.S. §3804(c). This is in

line with the Commonwealth’s argument that the warrant requirement itself serves as a

procedural measure curing the flaw in the supplanted statute. See Brief for Appellant at

5.

       This argument appears to me to be very strong as concerns the constitutionality

of the amended statute. Regarding the retroactive application of Birchfield, however,

the difficulty is that the right to be free from unreasonable warrantless searches

enshrined in the Fourth Amendment has material substantive attributes.                    See


                             [J-29-2019][M.O. – Wecht, J.] - 2
Schneckloth v. Bustamonte, 412 U.S. 218, 282, 93 S. Ct. 2041, 2076 (1973) (“In the

context of the Fourth Amendment, the relevant substantive requirements are that

searches be conducted only after evidence justifying them has been submitted to an

impartial magistrate for a determination of probable cause.” (emphasis added)).      In

other words, the Constitution itself embeds what otherwise may be regarded as a

procedural mechanism into the sensitive arena of substantive individual rights.

       In view of the above, in my judgment, the default rule should be that Birchfield

applies retroactively, subject to other material considerations such as waiver.    See

United States v. Booker, 543 U.S. 220, 268, 125 S. Ct. 738, 769 (2005) (explaining that

federal retroactivity analysis does not preclude “reviewing courts [from] apply[ing]

ordinary prudential doctrines, determining, for example, whether the issue was raised

below or whether it fails the ‘plain error’ test.”).




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