U.S. Supreme Court precedent holding that, absent exigent circumstances, warrantless blood tests are unconstitutional is a substantive rule change and should apply retroactively for any case where the issue was raised on a post-conviction appeal, a defense attorney argued before the Pennsylvania Supreme Court.

Attorney David T. Leake, of Somerset, Pennsylvania, made the argument Wednesday in the case Commonwealth v. Olson, in which the justices are set to determine whether the U.S. Supreme Court's 2016 decision in Birchfield v. North Dakota should be applied retroactively to cases pending on collateral appeal.

“Birchfield is a substantive rule,” Leake said, and compared the decision to the Supreme Court's 2016 holding in Montgomery v. Louisiana, which retroactively applied its prior decision striking down mandatory life sentences for juveniles as unconstitutional.

Justice David N. Wecht, however, questioned if the two cases were similar.

“That dealt with juveniles as a class,” Wecht said. “This is just guys having too much to drink.”

The arguments in Olson stem from defendant Jeffrey Olson's challenge to the legality of the sentence he received after he pleaded guilty to driving under the influence in 2015. Olson was given an enhanced sentence for refusing to consent to a blood draw, and a few months later the U.S. Supreme Court decided in Birchfield that warrantless blood tests taken pursuant to implied consent laws are an unconstitutional invasion of privacy.

Leake said Birchfield and Montgomery are similar because the high court found that defendants in both cases were subjected to unconstitutional laws.

“It's a class of individuals whose Fourth Amendment rights were violated,” Leake argued.

Chief Justice Thomas Saylor, however, said that, since the law does not categorically bar warrantless blood draws, but instead allows them under exigent circumstances and if the defendant consents, the change was more procedural than Leake was contending.

“It's not categorical. You have work-arounds,” Saylor said.

Leake countered that allowing blood draws under exigent circumstances does not change the Supreme Court's ultimate holding—that the warrantless blood draws at issue were unconstitutional.

“All Birchfield said was that it's illegal,” Leake said.

Deputy Attorney General Hugh Burns, who argued against applying Birchfield retroactively, focused on Saylor's point, and said a matter can only be applied retroactively if it is a substantive change that uncategorically de-criminalizes an issue, rather than a ruling that is simply a procedural change. Burns gave the example of flag burning, and said, once the Supreme Court invalidated laws against flag burning, the state couldn't criminalize it under any circumstances.

“The conduct [in Olson] remains criminal before and after the imposition of the new rule,” he said, adding that law enforcement now just needs to take a few additional steps before performing the blood draw. “That's the kind of rule we have in Birchfield.”

Justice Christine Donohue, however, questioned how the situation wasn't similar to Montgomery, since the holder underlying that case wasn't that life sentences for juveniles were uncategorically unconstitutional, but rather that certain hearings needed to take place before a life sentence was imposed.

Burns replied that in Montgomery, the justices “moved the goal post,” by simply saying it was categorically creating a class of people. The focus of the issue, according to Burns, should be on how the change affects a state's conduct versus and individual's.

“If it all comes down to what the state does, then it's procedural,” Burns said.