Comm. v. Olson, 2018 PA Super 31 (Feb. 14, 2018)

This was an appeal out of Somerset County.  The significance of the appeal is in how the Pennsylvania Superior Court treated a recent U.S. Supreme Court case, Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016), which recently caused major changes nationwide in DUI practice.  Specifically, here, the Superior Court was answering the question of whether the Birchfield case may be applied to people whose DUI sentences were finalized before Birchfield was decided.  In other words, was it retroactive.  The Superior Court, ultimately, held it was not.  But consider the significance.

Birchfield has been huge in the past 18 months because of its impact on what are known as implied-consent laws.  At its core, although approving of states’ implied-consent laws, Birchfield held this: states cannot extract blood from a DUI motorist incident to arrest, without a warrant, under the auspices of implied-consent laws if such laws impose criminal penalties for a motorist refusing consent.

That holding was effective June 23, 2016, when Birchfield was decided.  Now, here, Olson had pled guilty and was sentenced for a DUI-related offense on December 21, 2015—nearly six months before Birchfield.  Olson sought to apply the benefit of Birchfield’s holding to his case, so he filed a petition for post-conviction relief (PCRA)—sometimes referred to as a collateral proceeding.  In that he argued that Birchfield should apply retroactively to him.  The Superior Court, however, said no.  It reasoned to that conclusion using what is commonly known as the Teague framework, which is named after another U.S. Supreme Court case.  It wrote:

[A]n 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.”

“A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed rule of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”  “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.”

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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 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 regulated only the manner of determining the degree of defendant’s culpability and punishment.

Therefore, the Superior Court held that Birchfield does not apply retroactively to cases pending on collateral review.