Com. v. Myers, D.

J-A06018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

DARRELL MYERS

Appellee No. 2774 EDA 2013

Appeal from the Order August 27, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0052681-2012

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.: FILED APRIL 17, 2015

The Commonwealth appeals from the order entered August 27, 2013,

in the Philadelphia Court of Common Pleas, denying relief from an order of

the Philadelphia Municipal Court that suppressed test results from a

warrantless blood draw of appellee, Darrell Myers, who was charged with

driving under the influence of alcohol, in violation of 75 Pa.C.S. §

3802(a)(1), DUI — General Impairment, first offense.1 Based upon the

following, we affirm.

From the trial court’s opinion, we quote:

____________________________________________

1
Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in good
faith that the trial court's order will terminate or substantially handicap the
prosecution of this case, even though Myers was charged with general
impairment.
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Based upon the record kept in this matter, this Court makes the
following findings of fact:

1. On December 29, 2012, at approximately 3:30 p.m.,
Officer James Bragg was on patrol in the city and county of
Philadelphia. Motion to Suppress, Notes of Testimony, May 21,
201[3], p. 7. His tour of duty took him to the location of 64 West
Penn street. Id.

2. Officer Bragg received a radio call for a person
screaming in the area of 100 West Penn Street. Id. at 7. The
flash was for a maroon SUV. Id. at 8.

3. As Officer Bragg came down Penn Street, he
observed a maroon SUV which had its engine running. Id. The
vehicle was observed with its brake lights repeatedly going on
and off and [Myers] was observed seated in the driver’s seat. Id.
at 8.

4. Officer Bragg witnessed [Myers] maneuvering the
brake pedal himself -- which is to say, he did not have his
hazards on and he was the one causing his lights to go [on] and
off repeatedly. Id. at 8.

5. The vehicle was in the running lane [i]n front of 64
West Penn Street. Id.

6. Officer Bragg pulled up behind the vehicle with his
overhead lights and sirens on. Id. at 8, 9. He watched as the
male driver exited the vehicle and immediately began staggering
towards the officer’s car. Id. at 9. Officer Bragg had not ordered
[Myers] out of the vehicle. Id. at 8.

7. [Myers] tried to say something at that time -- he had
very slurred speech, however. The officer could not understand
him. Id. at 9. The officer convinced him to have a seat on the
steps in front of a nearby building. Id. at 9.

8. [Myers] had a moderate smell of alcoholic beverages
emanating from his person. Id. at 9.

9. Officer Bragg testified that he has been on the force
for five years and come directly into contact with people under
the influence of alcohol on a number of occasions. Id. at 14, 15.

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Based upon his experience and contact with people under the
influence, he believed that [Myers] was intoxicated. See id. at
12.

10. Further, Officer Bragg saw a brandy bottle on the
front seat of the vehicle. Id. at 12. He saw the item in plain
view. Id. [Myers] left his vehicle door open as he stumbled
outside during the initial stop. Id.

11. On the basis of the foregoing observations, Officer
Bragg indicated that he did not believe [Myers] could then safely
operate a vehicle. Id.

12. Officer Bragg then called a wagon and placed
[Myers] under arrest for DUI. Id. at 23.

13. Officer Bragg then had [Myers] transported to the
hospital to have him medically cleared -- the officer was of the
opinion that [Myers] was intoxicated to the point where he
needed medical attention and that the PDU would not be able to
handle the matter. Id. at 23, 24.

14. Later that same day, around 4:45 p.m. on duty
Officer [Matthew] Domenic arrived at Einstein Hospital. Id. at 25.
He had received information that an individual arrested for DUI
was at that hospital. Id. There, he observed [Myers] in a room in
the emergency ward. Id. [Myers] was unconscious and
unresponsive. Id.

15. [Myers] had been given four milligrams of Haldol by
medical staff just a few minutes before the officer had arrived.
Id. at 27.

16. Officer Domenic attempted to make contact with the
unconscious [Myers]. Id. at 27. He spoke his name several times
to no avail. Id. at 27, 28. He then proceeded to rea[d] the
standard informed consent warnings to [Myers]. Id. at 28.
[Myers] did not respond. Id. at 28.

17. Officer Domenic then requested that RN Kral perform
a warrantless blood draw. Id. at 28.

18. That blood draw took place at 5:01 p.m. Id. at 28.
[Two] tubes of blood were provided to the officer. Id. They were

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placed into a drug scan blood kit and transported back to AID
headquarters where they were placed into a secure refrigerator.
Id.

19. The blood samples were placed on property receipt
number 3078494. Id. They received a drug scan ID number and
were submitted for testing. Id.

20. [Myers] never signed the informed consent
warnings, as he was unconscious and unresponsive. Id.

21. The record is devoid of any evidence that the officers
ever requested (or attempted to secure) a warrant prior to the
blood draw being carried out.

Trial Court Opinion, 1/17/2014, at 2–4.

On May 21, 2013, Myers proceeded to a hearing before the Municipal

Court on his suppression motion. Myers argued that (1) the physical

evidence should be suppressed because Officer Bragg lacked probable cause

to arrest him for DUI, and (2) the blood draw should be suppressed because

there were no “exigent circumstances that would support a warrantless

draw,”2 making it illegal under the United States Supreme Court’s holding in

Missouri v. McNeely, 133 S.Ct. 1552 (2013).

The Municipal Court judge granted the suppression motion in part,

with respect to the blood draw. The Municipal Court judge concluded that the

officers should have obtained a warrant because Myers was unconscious,

could not consent, and it “was [not] unreasonable for the Commonwealth to

____________________________________________

2
N.T., 5/21/2013, at 35.

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go get a warrant in this situation.” N.T., 5/21/2013, at 43–44. In support,

the Municipal Court judge cited McNeely.

On June 17, 2013, the Commonwealth appealed the Municipal Court’s

ruling to the Philadelphia Court of Common Pleas. On August 27, 2013,

following a hearing, the Honorable Paula Patrick denied the Commonwealth’s

appeal, and affirmed the decision of the Municipal Court. This appeal

followed.3

The Commonwealth raises the following question for our review:

Did the lower court, sitting as an appellate court, err in holding
that a warrant was required to obtain blood for a chemical test
where the officer had probable cause to believe that [Myers] was
driving under the influence of alcohol or a controlled substance?

Commonwealth Brief, at 4.

Our standard of review is well settled:

Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the [defense] prevailed before the suppression
court, we may consider only the evidence of the [defense] and
so much of the evidence for the [Commonwealth] as remains
uncontradicted when read in the context of the record as a
whole. Where the suppression court’s factual findings are
____________________________________________

3
At the same time that the notice of appeal was filed, the Commonwealth
filed a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), even though the trial court had not yet ordered it to do
so. On January 17, 2014, Judge Patrick issued an opinion in support of her
decision.

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supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous….
[T]he suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary review.

Commonwealth v. Stem, 96 A.3d 407, 409 (Pa. Super. 2014) (citation

omitted).

At issue in this appeal is application of the recent United States

Supreme Court decision in Missouri v. McNeely, supra. In McNeely,

at approximately 2:08 a.m., a Missouri police officer stopped
McNeely’s truck after observing it exceed the posted speed limit
and repeatedly cross the centerline. The officer noticed several
signs that McNeely was intoxicated, including McNeely’s
bloodshot eyes, his slurred speech, and the smell of alcohol on
his breath. McNeely acknowledged to the officer that he had
consumed “a couple of beers” at a bar, App. 20, and he
appeared unsteady on his feet when he exited the truck. After
McNeely performed poorly on a battery of field-sobriety tests and
declined to use a portable breath-test device to measure his
blood alcohol concentration (BAC), the officer placed him under
arrest.

The officer began to transport McNeely to the station house. But
when McNeely indicated that he would again refuse to provide a
breath sample, the officer changed course and took McNeely to a
nearby hospital for blood testing. The officer did not attempt to
secure a warrant. Upon arrival at the hospital, the officer asked
McNeely whether he would consent to a blood test. Reading from
a standard implied consent form, the officer explained to
McNeely that under state law refusal to submit voluntarily to the
test would lead to the immediate revocation of his driver’s
license for one year and could be used against him in a future
prosecution. See Mo. Ann. Stat. §§ 577.020.1, 577.041 (West
2011). McNeely nonetheless refused. The officer then directed a
hospital lab technician to take a blood sample, and the sample
was secured at approximately 2:35 a.m. Subsequent laboratory
testing measured McNeely’s BAC at 0.154 percent, which was
well above the legal limit of 0.08 percent. See § 577.012.1.

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133 S. Ct. 1556–1557.

McNeely sought to suppress the results, arguing that the warrantless

blood draw violated his Fourth Amendment rights.4 The United States

Supreme Court granted certiorari to resolve the issue “whether the natural

dissipation of alcohol in the bloodstream establishes a per se exigency that

suffices on its own to justify an exception to the warrant requirement for

nonconsensual blood testing in drunk-driving investigations.” Id. at 1558.

The Court held that “in drunk-driving investigations, the natural dissipation

of alcohol in the bloodstream does not constitute an exigency in every case

sufficient to justify conducting a blood test without a warrant.” Id. at 1568.

The McNeely Court ruled that, “[i]n those driving situations where

police officers can reasonably obtain a warrant before a blood sample can be

drawn without significantly undermining the efficacy of the search, the

Fourth Amendment mandates that they do so.” Id. at 1561. The Court

continued:

We do not doubt that some circumstances will make obtaining a
warrant impractical such that the dissipation of alcohol from the
bloodstream will support an exigency justifying a properly
conducted warrantless blood test. That, however, is a reason to
decide each case on its facts, as we did in Schmerber [v. State
of California, 384 U.S. 757 (1966)], not to accept the
____________________________________________

4
The Fourth Amendment provides: “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”

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“considerable overgeneralization” that a per se rule would
reflect.

The context of blood testing is different in critical respects from
other destruction-of-evidence cases in which the police are truly
confronted with a “‘now or never’” situation. In contrast to, for
example, circumstances in which the suspect has control over
easily disposable evidence, BAC evidence from a drunk-driving
suspect naturally dissipates over time in a gradual and relatively
predictable manner. Moreover, because a police officer must
typically transport a drunk-driving suspect to a medical facility
and obtain the assistance of someone with appropriate medical
training before conducting a blood test, some delay between the
time of the arrest or accident and the time of the test is
inevitable regardless of whether police officers are required to
obtain a warrant. … Consider, for example, a situation in which
the warrant process will not significantly increase the delay
before the blood test is conducted because an officer can take
steps to secure a warrant while the suspect is being transported
to a medical facility by another officer. In such a circumstance,
there would be no plausible justification for an exception to the
warrant requirement.

Id. at 1561 (internal citations omitted).

The Court recognized that “exigent circumstances justifying a

warrantless blood sample may arise in the regular course of law enforcement

due to delays from the warrant application process.” Id. at 1563. However,

the Court concluded that adopting a per se approach “would improperly

ignore the current and future technological developments in warrant

procedures.” Id. The Court opined that in a drunk-driving case, whether a

warrantless blood draw is reasonable must be determined on a case-by-case

basis, considering the totality of the circumstances. Id.

In the present case, the trial court, relying on McNeely, concluded

“the Commonwealth failed to present competent evidence that there was an

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exigency which would have justified the officer’s decision to order a

warrantless blood draw.” Trial Court Opinion, 1/17/2014, at 7. The trial

court explained:

The record below is devoid of any evidence indicating that it
would have been impracticable or infeasible for the arresting
officer (or, for that matter, the officer who ordered the blood
sample test at the medical facility) to obtain a warrant in the
circumstances. Further, [Myers] was actually unconscious when
the blood draw at issue was performed. As such, he did not have
the opportunity to decline or refuse to have his blood sample
taken on the date in question. [Myers] was unconscious because
he was given Haldol upon arriving at the hospital. The arresting
officer did not testify that he could not secure a warrant in the
time it took to transport [Myers] to the hospital to obtain
medical assistance. The arrest took place at approximately 3:30
p.m. — this was not a late-night drunk driving situation where
securing a timely warrant might have proven extremely difficult
or even impossible. Moreover, [Myers] was given the drugs
which rendered him unconscious at approximately 4:40 p.m.
The blood test at issue was not performed until 5:01 p.m. The
record is devoid of any evidence that the officers did not have
sufficient time to seek out and secure a warrant before
conducting this blood draw --- both prior to [Myers’] arrival at
the hospital and to his becoming unconscious.

Trial Court Opinion, 1/17/2014, at 7–8.

The Commonwealth argues that the trial court’s reliance on McNeely

is misplaced, because the McNeely Court did not consider the issue of

whether an implied consent law is an exception to the warrant requirement.

Relevant to this argument, the Pennsylvania implied consent statute reads,

in pertinent part:

Any person who drives, operates, or is in actual physical control of
the movement of a vehicle in this Commonwealth shall be
deemed to have given consent to one or more chemical tests
of breath, blood or urine for the purpose of determining the

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alcoholic content of blood … if a police officer has reasonable
grounds to believe the person to have been driving, operating or
in actual physical control of the movement of a vehicle: … in
violation of section … 3802 (relating to driving under the influence
of alcohol or controlled substance) ….

75 Pa.C.S. § 1547(a)(1). Section 1547(b)(1) further provides, “if a person

placed under arrest for a violation of Section 3802 is requested to submit to

chemical testing and refuses to do so, the testing shall not be conducted, but

upon notice by the police officer, the department shall suspend the operating

privilege of the person ….” 75 Pa.C.S. § 1547(b)(1).5
____________________________________________

5
In Commonwealth v. Eisenhart, 611 A.2d 681, 684 (Pa. 1992), the
Pennsylvania Supreme Court held that a conscious driver has the explicit
right under Section 1547(b) to refuse a blood draw. The Court explained:

[U]nder the Implied Consent provision, Section 1547(a), testing
is allowed absent an affirmative showing of the subject’s refusal
to consent to the test at the time that the testing is
administered. Moreover, his initial consent does not preclude him
from revoking his consent to the test. The statute grants an
explicit right to a driver who is under arrest for driving under the
influence to refuse to consent to chemical testing. The
relationship between the Implied Consent provision of Section
1547(a) and the suspension for refusal under Section 1547(b) is
such that a driver may revoke his Implied Consent under
Subsection (a) by refusing. The sanction of the one year
suspension for refusing to consent to the chemical testing is
used as an incentive to induce a driver to submit to the test,
provided the probable cause requirements of subsection (a) are
met.

Id. at 683–684. The Eisenhart Court held that the blood test results
acquired in contravention of a driver’s right to refuse consent to blood
alcohol testing under the Motor Vehicle Code must be suppressed. The Court
specifically noted that the issue of an unconscious driver was not before it.
Id. at 684.

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The Commonwealth maintains that under Section 1547(a)(1), where

an officer has probable cause to arrest a defendant for DUI, and an

unresponsive defendant has not affirmatively refused consent, the officer

may conduct a warrantless blood draw. Commonwealth’s Brief at 11. In

support, the Commonwealth cites Commonwealth v. Kohl, 615 A.2d 308

(Pa. 1992), and Commonwealth v. Keller, 823 A.2d 1004 (Pa. Super.

2003).

In Kohl, the unconscious defendant had his blood drawn for DUI

investigative purposes pursuant to then-existing Section 1547(a)(2). The

Commonwealth argues:

[T]he officers in Kohl did not have probable cause to believe the
individuals were intoxicated. The Supreme Court affirmed
suppression. Notably, the Supreme Court clarified that implied
consent is constitutional so long as the officer has probable
cause, hypothesizing: “Indeed, if the police officers had
observed any signs of intoxication, the blood tests would have
been authorized.” Kohl, 615 at 31[6].

Commonwealth’s Brief at 13.6

The Commonwealth also relies on Keller, wherein the defendant was

involved in a one-vehicle accident. A state trooper on the scene noticed the

defendant had an odor of alcohol, as well as glassy and bloodshot eyes. Due

____________________________________________

6
We are aware that the Kohl Court added to its discussion that “if the police
officers had observed any signs of intoxication, the blood tests would have
been authorized by 75 Pa.C.S.A. § 1547(a)(1).” However, as will be
discussed, the issue of Section 1547(a)(1) was not before the Kohl Court,
which addressed the constitutionality of Section 1547(a)(2).

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to his injuries, the defendant was transported to the hospital. He was read

his O’Connell7 warnings, but the trooper could not remember the

defendant’s response. State police requested a blood draw, which indicated

a BAC well in excess of the legal limit. Under these circumstances, this

Court concluded that the implied consent provision, 75 Pa.C.S. § 1547(a)(1),

did not violate the defendant’s rights against unreasonable search and

seizure under the Pennsylvania Constitution.

Myers relies on McNeely, and argues that because the Commonwealth

failed to show exigency or an effort to get a warrant, this Court should affirm

the trial court. See Myers’ Brief at 6–7. Myers argues that the

Commonwealth’s reliance on the implied consent law as a per se rule that

permits the involuntary taking of a person’s blood when there is probable

cause to believe the person committed a drunk driving offense, is

inconsistent with McNeely, which rejected a per se rule. See id. at 8.

Moreover, Myers contends “he was deprived of his statutory right to

refuse the taking of his blood[,]” and police cannot “then use his inability to

verbally refuse as the basis to involuntarily take his blood.” Id. at 9. Myers

further argues “[Pennsylvania’s implied consent law] penalizes the refusal to

consent to a blood draw. It does not permit the involuntary seizure of a

blood sample.” Myers’ Brief at 11–12.

____________________________________________

7
See Com., Dept. of Transp., Bureau of Traffic Safety v. O'Connell,
555 A.2d 873 (Pa. 1989).

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Upon review, we agree with Myers that the trial court properly denied

relief to the Commonwealth. Our reasons are as follows.

First, in Kohl, the only issue before the Court was the constitutionality

of then-existing Section 1547(a)(2). In addition, Keller is distinguishable

on its facts, in that the arresting officer could not remember defendant’s

response when he was advised of his right to refuse blood testing.

Furthermore, Keller discussed the interplay between the implied consent

statute and 75 Pa.C.S. § 3755,8 which is not at issue herein. Although the

Commonwealth argues that Keller applies with “full force” to the present

case “[b]ecause the officer here had probable cause to arrest for DUI and

[Myers] did not affirmatively refuse his consent,”9 the Commonwealth

ignores the fact that under the unique circumstances of this case, Myers

could not be warned or respond because medication administered by

____________________________________________

8
Section 3755 provides, in pertinent part:

If, as a result of a motor vehicle accident, the person who drove
… requires medical treatment in an emergency room of a
hospital and if probable cause exists to believe a violation of
section 3802 (relating to driving under influence of alcohol or
controlled substance) was involved, the emergency room
physician or his designee shall promptly take blood samples from
those persons ….

75 Pa.C.S. § 3755.
9
Commonwealth’s Brief at 14.

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hospital staff had rendered him unconscious. This fact brings us to the next

point.

Pennsylvania’s implied consent statute provides a driver under arrest

with the statutory right of refusal to blood testing, see 75 Pa.C.S. §

1547(b)(1) (“If any person placed under arrest for a violation of section

3802 is requested to submit to chemical testing and refuses to do so, the

testing shall not be conducted ….”). As discussed, Section 1547 provides for

chemical testing when consent is not withdrawn pursuant to subsection

(b)(1), and precludes a blood draw when consent is withdrawn and imposes

penalties.10 Here, Myers was arrested for DUI and transported to the

hospital, but was not given the applicable warnings until a later time, at

which point he could not claim the statutory protection of Section

1547(b)(1).

The facts of record show that Officer James Bragg encountered Myers

at approximately 3:30 P.M. This encounter did not result from a vehicular

accident, but rather from Officer Bragg responding to a report of a person

screaming in the area of 100 West Penn Street. Officer Bragg observed a

maroon SUV in the running lane, and saw Myers exit the vehicle and stagger

toward the police vehicle. N.T., 5/21/2013, at 7–8. Based on Officer

____________________________________________

10
See 75 Pa.C.S. § 1547(b) (“Suspension for refusal”), and (e) (“Refusal
admissible in evidence”).

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Bragg’s observations, he arrested Myers for DUI, and called for a wagon to

transport him to the hospital “because he appeared to be intoxicated to a

point where he needed medical attention.” Id. at 24. Later, at 4:45 p.m.,

Officer Matthew Domenic, who was the chemical testing officer, appeared at

the hospital.11 Id. at 25.

Officer Domenic observed that Myers was unconscious and

unresponsive, and learned that Myers’ unconsciousness was due to Haldol

that hospital staff had administered to Myers minutes earlier, at

approximately 4:40 p.m. Id. at 27. Officer Domenic attempted to make

contact with Myers by speaking his name and tapping him on the shoulder,

but there was no response. Officer Dominic then proceeded to give Myers

the O’Connell warnings and still receiving no response, ordered the blood

draw. The blood draw did not occur until 5:01 P.M. Id. at 27–28.

Finally, we consider the import of McNeely. As discussed above, in

McNeely, the United States Supreme Court held “in drunk-driving

investigations, the natural dissipation of alcohol in the bloodstream

does not constitute an exigency in every case sufficient to justify

conducting a blood test without a warrant.” Id. at 1568 (emphasis added).

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11
As we have noted, this is not a case where the hospital was required to
withdraw blood. See 75 Pa.C.S. § 3755. The Commonwealth relies solely on
the implied consent statute for the blood draw.

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We recognize this case differs from McNeely where the blood draw

was nonconsensual. Nevertheless, because police did not act pursuant to

the implied consent law until 4:45 p.m., after Myers had been rendered

unconscious by an intervening cause that occurred subsequent to his DUI

arrest and transport to the hospital, we conclude McNeely controls here.

Further, we agree with the trial court that the Commonwealth failed to

justify the failure to obtain a warrant prior to the 5:01 p.m. blood draw.

Therefore, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2015

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