Not only are you an excellent attorney, but a good person who truly cared about me and always did your best to help me. I am so grateful for being given a second chance.
—TomDave Shrager successfully lobbied for my felony charge to be completely withdrawn. His services were worth every dime. A highly personable, intelligent, and competent attorney, I would recommend Dave Shrager to my closest friends and family without hesitation.
—RonDave knows the system better than any lawyer in Pittsburgh due to his family's local and long-standing practice, and it was evident in the positive manner in which the judges, prosecutors, and law enforcement officers responded to Dave's arguments on my behalf.
—JimI cannot say thank you enough to David Shrager for all his help today! If it were not for this guy, I would no longer have a job or drivers license. So thanks again Dave, you're the best!
—BillI was in a bad place in my life...I was making bad decisions, which led to my having a really bad night and lots of legal trouble. I'm lucky I had Attorney David Shrager at my side. He helped guide me, with his legal expertise, through a very difficult time in my life.
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Best DUI Lawyers in Pittsburgh 2024 Rated by Expertise

David J. Shrager Rated Among the "Best DUI Lawyers in Pittsburgh"

Attorney David J. Shrager was selected by for inclusion in its 2024 Top DUI Lawyers in Pittsburgh list (2021-2024).

Birchfield Ruling – Changes to DUI Penalties & Arrest Procedures

Major Ruling by the U.S. Supreme Court Could Impact Your DUI Case

If  you were arrested or charged with a DUI in Pennsylvania, this recent ruling could affect your sentence – including how much jail time you could receive and whether you will lose your license. To understand the ruling better and how it impacts your DUI, call our Pittsburgh DUI Lawyers today for a free consultation.

This article first appeared in The Journal of the Allegheny County Bar Association on September 2, 2016.

New DUI Laws Effects License Jailtime

Birchfield ruling disrupts longstanding DUI procedures

By David J. Shrager

On June 3, the Supreme Court decided the case of Birchfield v. North Dakota, and in so doing, the justices held that a blood draw, incident to a DUI arrest, is a constitutionally protected search that is subject to the warrant requirements of the Fourth Amendment. Laws that provide for an increased criminal penalty for refusing to provide a blood sample were similarly held unconstitutional. As a result, Pennsylvania DUI law has been disrupted, and the fallout is being felt throughout the Commonwealth as defense attorneys attempt to exploit newfound loopholes, and individual county prosecutors and police agencies struggle to determine how to properly prosecute the nearly 50,000 annual DUI arrests.

The Birchfield Court determined blood testing to be an invasive procedure that provides law enforcement with much more personal information than merely a blood-alcohol reading. The justices decided the Constitution requires a warrant for blood, partially because a breath test remains available as a less-invasive means of obtaining this evidence. Warrantless breath tests remain permissible as a search accompanying a lawful arrest.

The Pennsylvania DUI statute establishes a tiered system in which the penalties for driving under the influence increase depending on the level of alcohol in the defendant’s blood and the number of previous DUI convictions the defendant has received. People who are arrested on suspicion of DUI are required by law to provide either a breath or blood sample to law enforcement. Under Pennsylvania law, which test to request is in the officer’s discretion, and refusal to provide the requested sample results in defendants being regarded – for purposes of sentencing – as though their blood-alcohol levels were in the highest tier. Prior to requesting the test, the arresting officers read to the defendant a warning concerning the increased penalty for refusal. Since 2013, the Pennsylvania State Police, as well as many municipal police departments, have relied solely on blood testing because the breath machines they previously used were expensive and their reliability was under scrutiny.

Higher criminal penalties for refusing to participate in a warrantless blood draw now are clearly in violation of Birchfield. Defendants who refused a blood test now have the benefit of being charged and sentenced in the lowest tier, which indicates general impairment but not a specific blood- alcohol amount.

For those accused of a first-time offense, this has the practical effect of eliminating what otherwise would have been a mandatory 72 hours of incarceration. For those facing at least their third DUI offense, this reduces the minimum length of their sentence from a mandatory year of state prison to just 10 days of incarceration. The maximum penalties also would decrease – in some instances, by as much as three years.

Beyond refusals, those defendants who consented to a blood draw are likely also in luck. For a consent search to be valid, it has to be voluntary and free from undue coercion. If consent was given only after being advised that refusal to comply would result in increased penalties, it is likely that a court would find that consent involuntary. The result would be the suppression of the blood evidence. The consequences of this likely would be the same as above – the commonwealth would have to make its case solely on the officer’s observation and proceed on the lowest tier, general impairment.

There still are options for police officers attempting to get a blood- alcohol content reading to use as evidence. Municipalities can work together to provide breath-testing sites despite fewer machines.

The warning that local officers read to suspects has been amended so that it does not include the coercive language concerning harsher punishment, but it does warn that a refusal still will result in an additional yearlong license suspension. Birchfield does not seem to apply to civil penalties, making the additional license suspension valid. Officers still can seek consent for blood draws by reading the amended warnings, and if a suspect refuses consent, a night court judge could be made available so that an officer could seek a search warrant.

Until the legislature changes the law to comply with Birchfield, lawyers, police and courts will have to continue crafting new arguments and navigate the new landscape.

David J. Shrager is the CEO and managing partner at Shrager Defense Attorneys, and he serves as a judge on the Court of Judicial Discipline.


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