Commonwealth v. Napold, 170 A.3d 1165

On April 20, 2015 Officer Vozza found Appellant asleep/pass-out in a running car with music blaring; she had slurred speech, bloodshot/glassy eyes, and smelled of alcohol. She vomited and could not complete field sobriety tests. She refused a blood draw after receiving DL-26 warnings.
Appellant was charged with two counts under 75 Pa.C.S. § 3802(a)(1): DUI — general impairment and DUI — general impairment with refusal.
Bench trial (April 1, 2016) resulted in convictions on both counts; at sentencing the court—citing Birchfield—dismissed the refusal-related count; Appellant received six months’ probation on the remaining general-impairment count.
Appellant filed post-sentence motions arguing weight and sufficiency; those were denied by operation of law; she appealed and filed a concise statement raising the same issues and later sought to add a claim that the court improperly used her refusal as evidence of consciousness of guilt.
The appellate court considered whether Appellant’s challenge to the use of her refusal as substantive evidence was waived, in light of Birchfield (decided after trial) and Pennsylvania precedents on retroactivity and issue preservation.
The court concluded the claim was waived for failure to preserve at trial and affirmed the judgment of sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by admitting/considering Appellant’s refusal to submit to blood testing as substantive evidence of consciousness of guilt	Appellant: Birchfield established a constitutional right not to submit to a warrantless blood draw; therefore her post-Birchfield right means the refusal cannot be used as substantive evidence of guilt	Commonwealth/Trial Court: No objection was raised at trial; use of the refusal was not preserved for appeal; Birchfield does not automatically mean exclusion in this case	Waived — appellant failed to preserve the claim at trial (no motion in limine or contemporaneous objection); appellate court affirmed on waiver grounds
Whether Birchfield’s new rule applies retroactively without trial preservation	Appellant: Birchfield creates a new constitutional rule that should apply to cases pending on direct review	Commonwealth/Trial Court: Retroactive application of a new rule requires the issue to have been preserved at all adjudicative stages	Held: New rules apply to cases on direct review, but to obtain retroactive benefit the issue must have been preserved below; here it was not, so relief denied

Schriro v. Summerlin, 542 U.S. 348 (2004) (new constitutional rules apply to cases pending on direct review)
Griffith v. Kentucky, 479 U.S. 314 (1987) (announcing new rules applies retroactively to cases on direct review)
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (breath can be compelled without warrant; warrant required for blood except in limited circumstances)
Commonwealth v. Tilley, 780 A.2d 649 (Pa. 2001) (new constitutional rule requires issue preservation at all stages to obtain retroactive application)
Commonwealth v. Carley, 141 A.3d 1287 (Pa. Super. 2016) (addressed constitutionality of penalizing refusal; allocatur granted by Pa. Supreme Court)
Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017) (Pennsylvania Supreme Court addressing implied consent/statutory right to refuse and implications following Birchfield)