# Commonwealth v. Olson, J., Aplt.

> Supreme Court of Pennsylvania · October 31, 2019

URL: https://www.frixlaw.com/law-library/cases/4452034

## Case

- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 31, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[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

[J-29-2019] - 3
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

[J-29-2019] - 6
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.

[J-29-2019] - 13
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

[J-29-2019] - 14
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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4452034. Public record. Not legal advice.