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  • By: Kevin Leckerman, Esq.
  • Published: January 20, 2017
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The Pennsylvania Superior Court has ruled that anyone who refuses to submit to a blood test cannot be penalized.

The ruling was passed after a Chester County man was convicted of driving under the influence. According to the court, the individual was wrongfully penalized during his sentencing for refusing to submit to a blood test.

The decision was based on a 2016 U.S. Supreme Court ruling – Birchfield v. North Dakota – by Senior Judge John Musmanno who wrote that blood tests without a warrant are an unconstitutional invasion of privacy. The ruling was based on a unanimous three-judge panel.

The incident took place on the morning of 1 January 2013, when Hemant Kohli, a Chester County resident, was arrested for driving under the influence in Caln Township. According to police reports, he refused to have his blood drawn twice which was needed to test his blood alcohol level.

In the month of August 2013, Kohli was found guilty by a Chester County jury. He was sentenced to 18 to 36 months in prison. This was his third conviction for driving under the influence in 10 years.

The sentence was passed by Common Pleas Judge Phyllis R. Streitel who based her ruling on the state law that mandated that an individual who refused to give a blood or breath sample for testing and is convicted of DUI for a third time will be imprisoned for no less than a year.

In the decision filed January 10, Musmanno stated that since the Birchfield Court held that the practice of criminalizing the failure to consent to blood testing following a driving under the influence arrest was unconstitutional, the lower court improperly relied on the Pennsylvania statute during sentencing. The trial court was ordered by the appellate court to resentence Kohli.

At the moment, no date has been set for Kohli’s sentencing according to his appellate lawyer, Scott L. Kramer. According to Kramer, who is based in Delaware County, his client faces a mandatory sentence of 10 days, up to six months instead of a minimum of one year. Similarly, the maximum sentence would be two years instead of five years, which Kohli faced previously. In his last sentence, Kohli served 20 months before he was paroled last year. According to Kramer, his client is working and getting his life back in order.

Since the statute specifies “testing of blood or breath,” police are being told by prosecutors to only use breathalyzers, said Kramer. Police prefer blood tests because they can detect drugs. Breathalyzers do not catch the presence of a opioid or other drugs in someone who may be driving under their influence.

Kramer said that the legislature is going to have to rewrite the law.

The decision cannot be cited by parties in future cases as it was non-precedential.

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