The Pennsylvania Superior Court recently decided the case of Commonwealth v. Ennels, which held that the DL-26 form, a Pennsylvania Department of Transportation form used by the police to advise drivers suspected of driving under the influence of Pennsylvania’s implied consent law when police want to test blood, and that warns of enhanced criminal penalties upon refusal of a chemical test, to be invalid.

In sum, a blood test is a search under the Fourth Amendment to the United States Constitution.  Therefore, a person’s consent for the police to obtain a blood test (i.e., a search) has to be done knowingly, intelligently, and voluntarily. The Ennels case held that, under the United States Supreme Court’s 2016 decision of Birchfield v. North Dakota, the DL-26 form that was used by police in this case, warning of enhanced criminal penalties for not consenting to a blood test, to be coercive, and thereby violative of the Fourth Amendment right to be free of unreasonable searches and seizures.  The bottom line is that consent to a blood test cannot lawfully be based on the threat of enhanced criminal penalties.

Since the decision in Birchfield, the Pennsylvania Department of Transportation has removed this offensive language contained in the DL-26 form.

To read Ennels, click here.  At the time of this writing, the Commonwealth filed an application for reargument.

Contribution to this case squib was made by one of our fantastic legal clerks, Peter Rosenberg, a student at Drexel University, who is soon applying to law school.