Podcasts

Did You Know? Did you know that there are increased penalties if a person charged with DUI refuses to submit to Blood Alcohol Content (BAC) testing? If the police arrest a person for DUI and take them to get a breath test, refusing to participate results in a mandatory minimum 72 hour sentence in jail. Essentially, if a person refuses to give a breath sample, the law treats the DUI as if they had the highest level BAC (0.16%+).

However, if a person is taken to the hospital for a blood test, rather than a breath test, there is no mandatory minimum jail sentence unless police have a valid search warrant.

The reason there is no mandatory 72 hour sentence for a blood test refusal is because the Supreme Court found blood tests to be so intrusive that police would need a warrant before adding a criminal penalty (i.e. more jail time) for refusing a blood test. If police have a warrant and the driver still refuses, then they are subject to the 72 hour mandatory minimum.

Criminal penalties aside, a refusal of either breath or blood results in a 12 month driving suspension through PennDOT. Penalties through PennDOT are not considered criminal penalties, but rather civil penalties. The rationale is that driving is a privilege, not a right. If a driver disputes that they refused testing, they can file a license suspension appeal through the civil court.

Case Law Update: The Pennsylvania Supreme Court decided 5 criminal appeals in February and March, and the Superior Court kept up the pace with 22 criminal appeals. Here is what I think is most important to know:

• Refusing to hand over your license in a traffic stop for more than 25 minutes is a traffic offense, and a person who refuses to cooperate does not get to use the exception created for people who merely forget their license at home.
• Police do not need a warrant to access GPS location data for a person who agreed to  wear a GPS ankle monitor as an alternative to incarceration.
• A person on parole and residing at a community corrections center is still technically an “inmate” and any drugs possessed by them is considered “contraband.”

National News: Police can no longer request Ring camera footage from individuals through the Neighbors app after Ring announced it would be taking away the Request for Assistance tool. The Request for Assistance tool allowed police to request doorbell camera footage from people directly through the app regardless of its purpose and without a warrant.

Now police can either request Ring footage contacting individuals outside of the Neighbors app or by getting a warrant based on probable cause. This change followed a 5.8 million dollar settlement to the FTC related to allegations that Ring failed to implement safeguards to protect employees and third-party contractors from accessing customer videos.

Removing this feature adds a layer of protection to personal privacy, and if the police need footage and you do not want to offer it to them, they can apply for a search warrant.

What We’re Listening To: Caroline and Pete have been busy in the podcast studio! Four new episodes of the podcast Subject to Cross were released since the last Subject to Review update: 

• Episode 42: The Full Force of the 2^nd Amendment discusses the United States Supreme Court decision which ruled that in order to uphold any restriction related to firearms, the government must affirmatively prove that its firearms regulation is consistent with historical traditions that restrict a person’s right to keep and bear arms. Caroline and Pete review how this decision has impacted our practice, and some of the practical and political issues that have come up as a result.
• Episode 43: Confirmation Bias in American Nightmare unpacks the Netflix series American Nightmare covering a 2015 home invasion and kidnapping in Vallejo, California. The Netflix series covers an area of true crime deserving of more attention: wrongful accusations and the traumatizing impact of police investigations.
• Episode 44: Mental Health and Criminal Justice Caroline and Pete discuss a recent news article revealing that Dauphin County inmates in solitary confinement spent two weeks in November with no electricity.
• Episode 45: “Free Meek” Pete and Caroline review upcoming changes to probation in Pennsylvania where courts are required to take an individualized approach to determining probation conditions, creating a presumption against confinement for minor technical violations, and requiring mandatory review conferences to allow for early termination of probation. 

What’s Next? If you have a topic that you want to see covered on Subject to Review, email Criminal Defense Attorney Mary Lawrence at [email protected].

New to Subject to Review and want to learn more about what it is and how it started? Check out the First Edition of Subject to Review.