DUI Conviction • Retroactive Application of Birchfield
Commonwealth v. Moyer, PICS Case No. 16-1231 (C.P. Adams Sept. 7, 2016) Campbell, J. (4 pages).
Defendant charged and sentenced for a DUI two days before the ruling in Birchfield sought to have her sentence vacated in a timely post-trial petition. The court determined that she had not previously made an issue of her warrantless blood draw, and that unlike in Birchfield no enhanced penalty for a refusal was involved. Relying on the clarification of retroactive application of a new rule set forth in Commonwealth v. Cabeza, the court found that defendant’s failure to raise the issue previously, including in her first post-trial petition, prevented the application of Birchfield to her case. The petition to vacate the sentence was denied.
