218 A.3d 1260
Pa.2019Background
- Police stopped Kirk Hays for signaling and lane violations; officers smelled alcohol and Hays failed field-sobriety tests.
- At the DUI center Hays was read the DL-26 implied-consent form and consented to a blood draw; BAC = 0.192. He was charged with DUI-general impairment (§3802(a)(1)) and DUI-highest rate (§3802(c)), plus summary offenses.
- Pretrial omnibus motion argued the stop lacked probable cause but did not challenge voluntariness of consent to the blood draw.
- Trial occurred June 22, 2016; jury convicted Hays. Birchfield v. North Dakota was decided June 23, 2016 (the day after trial).
- At sentencing the parties agreed Birchfield required vacating the BAC-based count (Count 2); Hays later filed a post-sentence motion seeking a new trial under Birchfield for Count 1, arguing his consent was involuntary and the jury relied on BAC evidence.
- The trial court granted a new trial; the Superior Court reversed as Hays failed to preserve the voluntariness claim at trial. The Pennsylvania Supreme Court affirmed, holding established preservation/retroactivity precedent (Cabeza) controls and declining to overrule it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Birchfield applies to cases not yet final when decided | Hays: Birchfield announced a new constitutional rule and should apply retroactively to non-final cases | Commonwealth: Retroactive application requires the issue to have been preserved at all stages per Pennsylvania precedent | Court: Birchfield does not entitle Hays to relief because he failed to preserve the issue; retroactivity is subject to preservation rules |
| Whether Hays waived challenge to voluntariness of blood consent by not raising it at trial | Hays: Could not raise a Birchfield-based voluntariness claim before Birchfield existed; raised at first opportunity (sentencing/post-sentence) | Commonwealth: Hays waived the claim by failing to assert involuntary consent at trial or in pretrial motions | Court: Waiver—issue not preserved at trial, so no retroactive application of Birchfield |
| Whether Cabeza’s preservation rule should be overruled | Amicus/Hays: Preservation requirement is unfair when new rule did not exist pre-trial and should be relaxed | Commonwealth: Defends Cabeza and its requirement to preserve issues at trial for retroactive application | Court: Declined to overrule Cabeza; reaffirmed preservation requirement |
| Whether Hays is entitled to a new trial based on prejudice from BAC evidence | Hays: Jury relied on BAC to find general impairment, so Birchfield mandates retrial | Commonwealth: Preservation failure bars relief; Superior Court did not reach prejudice merits | Court: Because of waiver, new-trial claim denied (affirming Superior Court reversal of trial court’s new trial order) |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (warrantless blood tests cannot be sustained by implied-consent laws when refusal carries threat of criminal sanction)
- Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983) (new appellate rulings apply retroactively only when the issue is preserved at all stages)
- Commonwealth v. Scott, 436 A.2d 611 (Pa. 1981) (basis for Cabeza’s comparison of similarly situated defendants preserving issues at trial)
- Commonwealth v. Moyer, 171 A.3d 849 (Pa. Super. 2017) (applied preservation rule to deny post-Birchfield relief where issue was not preserved)
- Commonwealth v. Monarch, 200 A.3d 51 (Pa. 2019) (held Birchfield’s analysis applies to Pennsylvania’s enhanced-penalty implied-consent scheme)
- Teague v. Lane, 489 U.S. 288 (1989) (framework for retroactivity of new constitutional rules)
- Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006) (reiterating that new rules apply retroactively only if preserved at all stages)