The Pennsylvania Superior Court has ruled that a Chester County man convicted of driving under the influence was wrongfully penalized during his sentencing for having refused to submit to a blood test.Senior Judge John Musmanno, writing earlier this month for a unanimous three-judge panel, based the decision on a 2016 U.S. Supreme Court ruling – Birchfield v. North Dakota – that blood tests without a warrant are an unconstitutional invasion of privacy.Hemant Kohli, who was arrested for driving under the influence in Caln Township the morning of Jan. 1, 2013, twice refused to have his blood drawn for testing his blood-alcohol level.Kohli was found guilty that August by a Chester County jury and he was sentenced to 18 to 36 months in prison. It was his third conviction in 10 years for driving under the influence.Common Pleas Judge Phyllis R. Streitel based her sentence on state law that mandates that an individual who “refused testing of blood or breath” and has been convicted of DUI for a third time shall be imprisoned for not less than one year.”As the Birchfield Court held that the practice of criminalizing the failure to consent to blood testing following a driving under the influence arrest was unconstitutional,” the lower court improperly relied on the Pennsylvania statute during sentencing, Musmanno wrote in the decision filed Jan. 10. The appellate court ordered the trial court to resentence Kohli.The Chester County District Attorney’s Office could not be reached for comment Tuesday night.Scott L. Kramer, Kohli’s appellate lawyer, said no date has been set for the resentencing. Under the Superior Court ruling, his client will face a mandatory minimum of 10 days to six months instead of a minimum of one year, said Kramer, who is based in Delaware County.And the maximum would be two years instead of five, which is what Kohli previously faced. Kohli served 20 months and was paroled last year.”He’s working. He’s getting his life back in order,” Kramer said.Because the statute specifies “testing of blood or breath,” prosecutors are now telling police to only use Breathalyzers, Kramer said.Authorities prefer blood tests because they can detect drugs, Kramer said.A Breathalyzer is not going to catch someone under the influence of an opioid, for example.”The legislature is going to have to rewrite the law,” Kramer said.The decision was non-precedential, meaning it cannot be cited by parties in future cases.

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