Com. v. Defer, S.

J-S16019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

SARAH RUTH DEFER,

Appellant No. 1119 MDA 2014

Appeal from the Judgment of Sentence of June 6, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003966-2013

BEFORE: PANELLA, OLSON and OTT, JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 19, 2015

Appellant, Sarah Ruth Defer, appeals from the judgment of sentence

entered on June 6, 2014. After careful consideration of the arguments

raised before this Court, we affirm.

During the suppression hearing, the parties stipulated to the facts

contained in the Wyomissing Police Department Incident Report Form.

Wyomissing Police Officer Robert J. Pehlman created the form, wherein he

declared:

At [10:24 p.m.] on Sunday[,] March 31, 2013[,] I
responded to 845 Woodland Road for [a] report of an
accident with injuries. On location I discovered a one
vehicle accident involving a white 2013 Dodge [A]venger
bearing North Carolina registration []. The car was
apparently attempting to negotiate a slight left turn and
struck a curb and guard rail on the right side of the road,
throwing the vehicle to the left side of the [r]oad, where it
became disabled against the curb on that side. Inside the
vehicle, and seated in the passenger seat, was a white
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female subsequently identified as [Appellant,] of Laveen[,]
Arizona. [Appellant] was wearing a Reading Hospital
employee identification and was in possession of a [V]ocera
belonging to the hospital. [Appellant] was barely conscious
and unable to provide any information other than to say
that she was the operator of the vehicle at the time of the
crash. [Appellant] must have been thrown [into] the
passenger seat from the driver’s side on impact.
[Appellant] had visible injuries to her face and appeared to
be visibly intoxicated. There was a strong odor of alcohol
emanating from the vehicle. . . .

After obtaining the necessary documentation from the
vehicle and a bag in the vehicle belonging to [Appellant], I
followed Western Berks ambulance to the Reading Hospital.
[Appellant] was not conscious enough to speak to, and was
immediately sedated by the [h]ospital staff in order to
facilitate treatment. I requested that blood be drawn[,] at
which time a Geriann Kuberski drew the blood at exactly
[11:28 p.m.] and prepared the specimen to be transported
to [St. Joseph’s Hospital] to ascertain a blood [alcohol]
content. . . .

I left [] Reading Hospital at exactly [11:39 p.m.], and
arrived at [St. Joseph’s Hospital] at [11:50 p.m.] where I
delivered the [specimen] to the laboratory at that location.
I subsequently received the laboratory report which was
certified on April 2, 2013. The blood alcohol content for
[Appellant], as documented in [the] specimen, was 0.264.
Charges of driving under the influence to be filed against
[Appellant].

Incident Report Form, dated 4/14/13, at 1.

Following Appellant’s arrest for driving under the influence of alcohol

(“DUI”),1 Appellant filed a pre-trial motion to suppress. In relevant part,

Appellant’s suppression motion reads:
____________________________________________

1
Specifically, the Commonwealth charged Appellant with DUI, highest rate
of alcohol (second offense). See 75 Pa.C.S.A. § 3802(c).

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I. Factual Background

1. On or about March 31, 2013[, Appellant] was involved in
a single vehicle motor vehicle crash in Wyomissing, Berks
County, [Pennsylvania].

2. [Appellant] was rendered unconscious and was taken by
ambulance to the Reading Hospital and Medical Center.

3. At the Hospital, Wyomissing Police Officer Pehlman
instructed the hospital to draw blood from [Appellant;
Appellant] was still unconscious at this time. Officer
Pehlman then transported the blood for blood alcohol
testing.

4. Officer Pehlman did not obtain or attempt to obtain a
search warrant for [Appellant’s] blood.

5. Officer Pehlman did not have consent to draw blood.

6. There was no exigent circumstance, which would have
waived the warrant requirement.

7. This procedure is known as a “forced blood draw.”

8. [Appellant] was subsequently charged with DUI and
related offenses.

9. On April 17, 2013, the [United States] Supreme Court
found that “forced blood draws” were a violation of a
defendant’s [F]ourth [A]mendment rights. [Missouri v.
McNeely, ___ U.S. ___, 133 S.Ct. 1552, 1568 (2013)].
Specifically, the Court noted that blood could only be
withdrawn with consent or a search warrant.

II. Suppression

10. All of the foregoing paragraphs are incorporated herein
by reference.

11. As [Appellant’s] blood was a “forced blood draw” made
in violation of her [F]ourth [A]mendment rights, the blood,

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the testing results[,] and any fruits derived therefrom are
unlawful and must be suppressed under the [United States]
and Pennsylvania Constitutions.

Appellant’s Pre-Trial Motion, 9/4/13, at 1-2.

The Commonwealth opposed Appellant’s motion and argued that

McNeely did not apply to Appellant’s case. As the Commonwealth argued,

McNeely was concerned solely with the “exigent circumstances” exception

to the warrant requirement. In this case, however, the Commonwealth

claimed that Appellant’s blood was taken pursuant to the “consent”

exception to the warrant requirement. Commonwealth’s Response, 12/2/13,

at 1-2. Specifically, the Commonwealth argued that, pursuant to 75

Pa.C.S.A. § 1547(a), since Appellant was the driver of an automobile that

was involved in a motor vehicle accident and since Officer Pehlman had

probable cause to believe that Appellant was drunk, Appellant impliedly

consented to the blood draw. See 75 Pa.C.S.A. § 1547(a). The

Commonwealth further argued that, under 75 Pa.C.S.A. § 3755, Officer

Pehlman did not need to obtain a warrant or to demonstrate exigent

circumstances in order to instruct the hospital staff to perform the blood

draw while Appellant received treatment in the hospital for injuries she

sustained as a result of the motor vehicle accident. See Commonwealth’s

Response, 12/2/13, at 1-2; 75 Pa.C.S.A. § 3755(a). Rather, the

Commonwealth argued, Appellant’s consent to the search was implied under

the circumstances. Commonwealth’s Response, 12/2/13, at 2; see also

Commonwealth v. Riedel, 651 A.2d 135, 139-140 (Pa. 1994) (“[t]ogether,

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[sections 1547 and 3755] comprise a statutory scheme that implies the

consent of a driver to undergo chemical blood testing under particular

circumstances”).

On November 18, 2014, the trial court held a hearing on Appellant’s

suppression motion, where the parties stipulated to the facts contained in

Officer Pehlman’s Incident Report Form. The trial court denied Appellant’s

motion on December 13, 2014.

Following a bench trial, the trial court found Appellant guilty of DUI

under 75 Pa.C.S.A. § 3802(c) and, on June 6, 2014, the trial court

sentenced Appellant to serve a term of 90 days to 5 years in prison.

On Monday, July 7, 2014, Appellant filed a timely notice of appeal from

her judgment of sentence. Appellant raises one claim on appeal:

Whether th[e trial] court erred in denying [Appellant’s pre-
trial] suppression motion, where the blood drawn from
[Appellant] was obtained without a warrant or exigent
circumstance[s] in violation of [Appellant’s] Fourth
Amendment rights and no other blood sample has been
shown to be admissible?

Appellant’s Brief at 4 (some internal capitalization omitted).

“Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.

Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an

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appeal from the denial of a motion to suppress, our Supreme Court has

declared:

Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When
reviewing the ruling of a suppression court, we must
consider only the evidence of the prosecution and so much
of the evidence of the defense as remains uncontradicted
when read in the context of the record. . . . Where the
record supports the findings of the suppression court, we
are bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (internal citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006). Moreover, we note that our scope of review from a suppression

ruling is limited to the evidentiary record that was created at the

suppression hearing.2 In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

____________________________________________

2
On October 30, 2013, our Supreme Court decided In re L.J. In L.J., our
Supreme Court held that our scope of review from a suppression ruling is
limited to the evidentiary record that was created at the suppression
hearing. In re L.J., 79 A.3d at 1087. Prior to L.J., this Court routinely held
that, when reviewing a suppression court’s ruling, our scope of review
included “the evidence presented both at the suppression hearing and at
trial.” See Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa. Super.
2011), quoting Commonwealth v. Chacko, 459 A.2d 311, 317 n.5 (Pa.
1983). L.J. thus narrowed our scope of review of suppression court rulings
to the evidence presented at the suppression hearing. In this case,
(Footnote Continued Next Page)

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Appellant’s brief to this Court is relatively undeveloped, disjointed,

conclusory, and vague. However, it is apparent that the basis for Appellant’s

entire claim is her contention that Pennsylvania’s implied consent statute is

grounded in the “exigent circumstances” exception to the warrant

requirement. According to Appellant, since McNeely “has eliminated a per

se exigency in DUI blood draw cases,” “Pennsylvania can no longer recognize

a per se exigency either.” Appellant’s Brief at 12-13. We conclude that

Appellant’s claim on appeal does not entitle her to relief.

“The Fourth Amendment to the [United States] Constitution and Article

I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.” Commonwealth v. McAdoo, 46

A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is

deemed to be unreasonable and therefore constitutionally impermissible,

unless an established exception applies.” Commonwealth v. Strickler,

757 A.2d 884, 888 (Pa. 2000). As the Pennsylvania Supreme Court has

held, “exceptions to the warrant requirement do exist. For example, actual

consent, implied consent, search incident to lawful arrest, and exigent

circumstances may negate the necessity of obtaining a warrant before

conducting a search.” Riedel, 651 A.2d at 139 (internal footnote omitted).

_______________________
(Footnote Continued)

Appellant’s suppression hearing occurred after L.J. was decided. Therefore,
the procedural rule announced in L.J. applies to the case at bar.

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Appellant bases her claim of trial court error entirely upon McNeely.

As such, we will begin our analysis with an examination of McNeely.

In McNeely, a Missouri police officer pulled McNeely’s vehicle over and

arrested him for DUI. After McNeely refused to provide the officer with a

breath-test sample, the officer transported McNeely to a hospital and asked

him 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.” McNeely, ___ U.S. at ___, 133 S.Ct. at 1556-

1557. McNeely refused to consent to the blood test. Id. ___ U.S. at ___,

133 S.Ct. at 1557.

Notwithstanding McNeely’s explicit refusal to consent to the blood test

– and the fact that the officer had not obtained a warrant to search

McNeely’s person – the officer directed a hospital employee to take

McNeely’s blood. The employee took the blood sample and later testing

revealed that McNeely’s blood alcohol content was in excess of the legal

limit. Id. ___ U.S. at ___, 133 S.Ct. at 1557.

Following McNeely’s arrest, McNeely filed a suppression motion and

claimed that the results of his blood test must be suppressed because “under

the circumstances, taking his blood for chemical testing without first

obtaining a search warrant violated his rights under the Fourth Amendment.”

Id. ___ U.S. at ___, 133 S.Ct. at 1557. The trial court agreed with McNeely

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and ordered the chemical test results suppressed; the Missouri Supreme

Court affirmed. Both state courts concluded that, under the totality of the

circumstances, exigent circumstances did not justify the warrantless search

of McNeely’s person. Id. ___ U.S. at ___, 133 S.Ct. at 1557.

The United States Supreme Court granted the State’s petition for writ

of certiorari upon the following issue: “whether the natural metabolization

of alcohol in the bloodstream presents a per se exigency that justifies an

exception to the Fourth Amendment’s warrant requirement for

nonconsensual blood testing in all drunk-driving cases.” Id. ___ U.S. at

___, 133 S.Ct. at 1556. The Supreme Court concluded that the natural

metabolization of alcohol in the bloodstream did not present a per se

exigency and that, “consistent with Fourth Amendment principles, []

exigency in [drunk-driving cases] must be determined case by case based

on the totality of the circumstances.” Id. ___ U.S. at ___, 133 S.Ct. at

1556 and 1558.

The Supreme Court began its analysis by noting that the “compelled

physical intrusion beneath McNeely’s skin and into his veins to obtain a

sample of his blood for use as evidence in a criminal investigation”

constituted a search for Fourth Amendment purposes and that the invasion

into McNeely’s body “implicate[d McNeely’s] most personal and deep-rooted

expectations of privacy.” Id. ___ U.S. at ___, 133 S.Ct. at 1558 (internal

quotations and citations omitted). As the Supreme Court explained, under

its precedent, “a warrantless search of the person is reasonable only if it falls

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within a recognized exception” to the warrant requirement. “One well-

recognized exception, and the one at issue in [McNeely], applie[d] when

the exigencies of the situation make the needs of law enforcement so

compelling that a warrantless search is objectively reasonable under the

Fourth Amendment.” Id. ___ U.S. at ___, 133 S.Ct. at 1558 (internal

quotations and citations omitted). In particular, the Supreme Court

explained, it has “recognized that in some circumstances law enforcement

officers may conduct a search without a warrant to prevent the imminent

destruction of evidence.” Id. ___ U.S. at ___, 133 S.Ct. at 1559.

The McNeely Court noted that, in applying the exigent circumstances

exception, Supreme Court precedent requires that a court look “to the

totality of the circumstances” and determine whether “there [was a]

compelling need for official action and no time to secure a warrant.” Id. ___

U.S. at ___, 133 S.Ct. at 1559. Nevertheless, before the Supreme Court,

the State of Missouri requested that the Court “adopt [a] categorical rule” of

exigency in drunk-driving cases. As Missouri argued:

whenever an officer has probable cause to believe an
individual has been driving under the influence of alcohol,
exigent circumstances will necessarily exist because [blood
alcohol content] evidence is inherently evanescent. As a
result, the State claims that so long as the officer has
probable cause and the blood test is conducted in a
reasonable manner, it is categorically reasonable for law
enforcement to obtain the blood sample without a warrant.

Id. ___ U.S. at ___, 133 S.Ct. at 1560.

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The Supreme Court recognized the fact that, “as a result of the human

body’s natural metabolic processes, the alcohol level in a person’s blood

begins to dissipate once the alcohol is fully absorbed and continues to

decline until the alcohol is eliminated.” Id. ___ U.S. at ___, 133 S.Ct. at

1560. Nevertheless, the McNeely Court concluded that it would not depart

from its “totality of the circumstances” test in drunk-driving cases and, thus,

it would not adopt Missouri’s proposed “categorical rule” of exigency in such

cases. Id. ___ U.S. at ___, 133 S.Ct. at 1560-1561. Although the Supreme

Court “d[id] 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,” the McNeely Court held: “[i]n those drunk-driving investigations

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. ___ U.S. at ___,

133 S.Ct. at 1561.

From the above analysis, it is apparent that McNeely focused solely

upon the exigent circumstances exception to the warrant requirement.

Indeed, the Supreme Court noted that McNeely explicitly refused to

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consent to a blood test; therefore, the Supreme Court did not consider the

validity or effect of Missouri’s “implied consent” statute.3

Despite these circumstances, Appellant here bases her entire claim for

relief upon McNeely. According to Appellant, the Commonwealth’s implied

consent statute is grounded upon the exigencies of “time’s dissipating effect

on the evidence.” Appellant’s Brief at 12-13, quoting Commonwealth v.

Kohl, 615 A.2d 308, 315 (Pa. 1992). As Appellant argues, since McNeely

held that “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,” 75 Pa.C.S.A. §§ 1547(a) and 3755 no longer

support warrantless blood draws on the basis of implied consent. Therefore,

Appellant claims, McNeely is “directly on point” and we should vacate her

judgment of sentence, reverse the trial court’s suppression order, and

remand for a new trial.

____________________________________________

3
In McNeely, a plurality of the Court recognized (with seeming approval)
the fact that “all 50 States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within the State, to
consent to [blood alcohol content] testing if they are arrested or otherwise
detained on suspicion of a drunk-driving offense.” McNeely, ___ U.S. at
___, 133 S.Ct. at 1566. The plurality recognized that these implied consent
laws “impose significant consequences when a motorist withdraws consent”
and are one of the “legal tools” that states use “to enforce their drunk-
driving laws and to secure [blood alcohol content] evidence without
undertaking warrantless nonconsensual blood draws.” Id. ___ U.S. at ___,
133 S.Ct. at 1566.

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The Commonwealth takes a contrary position. Arguing that McNeely

has no applicability to the case at bar, the Commonwealth maintains that

McNeely concerned the “exigent circumstances” exception to the warrant

requirement, whereas the case at bar concerns the “consent” exception to

the warrant requirement. In particular, the Commonwealth claims, pursuant

to 75 Pa.C.S.A. § 1547(a), Appellant gave her “implied consent” to the blood

test and, since she was unconscious prior to and during the search,

Appellant never revoked this consent. The Commonwealth reasons that,

since Appellant never revoked her implied consent, Officer Pehlman did not

need to obtain a warrant or demonstrate exigent circumstances to perform

the search of her person, as 75 Pa.C.S.A. § 3755 permitted him to require

hospital personnel to withdraw Appellant’s blood without a warrant.

Therefore, according to the Commonwealth, Appellant’s claim on appeal

must fail.

We conclude Appellant’s specific argument to this Court does not

entitle her to relief.

As is relevant to the current case, Pennsylvania has an “implied

consent” law that reads:

[75 Pa.C.S.A.] § 1547. Chemical testing to determine
amount of alcohol or controlled substance

(a) General rule.--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 alcoholic content of blood or

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the presence of a controlled substance 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:

(1) in violation of . . . 3802 (relating to driving under
influence of alcohol or controlled substance) . . .; or

(2) which was involved in an accident in which the
operator or passenger of any vehicle involved or a
pedestrian required treatment at a medical facility or
was killed.

(b) Suspension for refusal.—

(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
but upon notice by the police officer, the department
shall suspend the operating privilege of the person as
follows:

(i) Except as set forth in subparagraph (ii), for a
period of 12 months.

(ii) For a period of 18 months if any of the following
apply: . . .

...

(2) It shall be the duty of the police officer to inform the
person that:

(i) the person's operating privilege will be suspended
upon refusal to submit to chemical testing; and

(ii) if the person refuses to submit to chemical
testing, upon conviction or plea for violating section
3802(a)(1), the person will be subject to the
penalties provided in section 3804(c) (relating to
penalties).

(3) Any person whose operating privilege is suspended
under the provisions of this section shall have the same

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right of appeal as provided for in cases of suspension for
other reasons.

75 Pa.C.S.A. § 1547(a) and (b).4

Also relevant to the case at bar is 75 Pa.C.S.A. § 3755, entitled

“[r]eports by emergency room personnel.” In pertinent part, this statute

reads:

[75 Pa.C.S.A.] § 3755. Reports by emergency room
personnel

(a) General rule.--If, as a result of a motor vehicle
accident, the person who drove, operated or was in actual
physical control of the movement of any involved motor
vehicle 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 and transmit them
within 24 hours for testing to the Department of Health or a
clinical laboratory licensed and approved by the Department
of Health and specifically designated for this purpose. . . .
Test results shall be released upon request of the person
tested, his attorney, his physician or governmental officials
or agencies.

75 Pa.C.S.A. § 3755(a).

A panel of this Court has previously explained:

together, sections 1547 and 3755 comprise a statutory
scheme which, under particular circumstances, not only
____________________________________________

4
Of note, Appellant has never claimed that she was “under arrest” at the
time the blood sample was taken and Appellant has never claimed that she
was entitled to the statutory right of refusal, as provided in 75 Pa.C.S.A.
§ 1547(b). See, e.g., Commonwealth v. Myers, ___ A.3d ___, ___, 2015
WL 3652667, at 7 (Pa. Super. 2015).

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imply the consent of a driver to undergo chemical or blood
tests, but also require hospital personnel to withdraw blood
from a person, and release the test results, at the request
of a police officer who has probable cause to believe the
person was operating a vehicle while under the influence.

Commonwealth v. Seibert, 799 A.2d 54, 64 (Pa. Super. 2002) (internal

quotations and citations omitted); see also Riedel, 651 A.2d at 139-140

(“[t]ogether, [sections 1547 and 3755] comprise a statutory scheme that

implies the consent of a driver to undergo chemical blood testing under

particular circumstances”).

At the outset, Appellant is incorrect to claim that Pennsylvania’s

implied consent law is based solely upon the exigent circumstances

exception to the warrant requirement and “time’s dissipating effect on the

evidence.” Rather, implied consent laws – such as Pennsylvania’s implied

consent law – were enacted for a variety of reasons, including: “to address

the hazard of impaired drivers on public roads,” Todd v. Commonwealth,

Dep’t of Transp., Bureau of Driver Licensing, 723 A.2d 655, 658 (Pa.

1999); “to facilitate [the] prosecution of chemically impaired drivers,”

Riedel, 651 A.2d at 141; “to rid the highways of drunk driving,” Hinnah v.

Director of Revenue, 77 S.W.3d 616, 619 (Mo. 2002) (internal quotations

and citations omitted); and, as “a bargain between drivers and the state[;

i]n exchange for the use of the roads within the state, drivers consent to

have their breath [or blood] tested if a police officer has reason to believe

the driver is intoxicated,” State v. Morale, 811 A.2d 185, 188 (Vt. 2002).

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Further, as both our Supreme Court and this Court have held,

Pennsylvania’s implied consent law is not a mere subpart of the “exigent

circumstances” exception to the warrant requirement. Rather, our Courts

have held that an individual’s implied consent in drunk-driving cases satisfies

the “consent” exception to the warrant requirement – which is an entirely

separate exception from the “exigent circumstances” exception. Riedel,

651 A.2d at 139-140 (our Supreme Court held: “[t]ogether, [sections 1547

and 3755] comprise a statutory scheme that implies the consent of a

driver to undergo chemical blood testing under particular circumstances”)

(emphasis added); Seibert, 799 A.2d at 64 (“together, sections 1547 and

3755 comprise a statutory scheme which, under particular circumstances, . .

. imply the consent of a driver to undergo chemical or blood tests”)

(emphasis added); Commonwealth v. Keller, 823 A.2d 1004, 1010 (Pa.

Super. 2003) (interpreting sections 1547 and 3755 and holding that, since

the trooper had probable cause to believe the defendant was driving under

the influence of alcohol, “[the defendant’s] consent to undergo chemical

or blood tests was implied, and [hospital] personnel were required to

withdraw blood from [the defendant] and release the test results”)

(emphasis added); Commonwealth v. Eisenhart, 611 A.2d 681, 683 (Pa.

1992) (“[b]ecause his consent is implied until the person actually

refuses, under subsection (a) of Section 1547, his actual consent would be

no different from his remaining silent. Thus, under the Implied Consent

provision, Section 1547(a), testing is allowed absent an affirmative showing

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of the subject’s refusal to consent to the test at the time that the testing is

administered”) (emphasis added); see also Commonwealth v. Shaw, 770

A.2d 295, 301-302 (Pa. 2001) (Castille, J. dissenting) (explaining: “[T]he

Riedel Court simply acknowledged and applied certain bedrock principles of

search and seizure jurisprudence: i.e., that searches without a warrant are

generally unreasonable, but exceptions to the warrant requirement exist,

including actual and implied consent, where warrantless searches have been

deemed reasonable. [The Pennsylvania Supreme] Court’s construction of

Article I, § 8 is identical in this particular instance, i.e., [the Supreme Court]

recognize[s] a preference for warrants, while also recognizing the

reasonableness of warrantless searches in some circumstances, including

consent cases”) (internal citations and emphasis omitted); see also

Commonwealth v. McCoy, 975 A.2d 586, 589 (Pa. 2009) (holding, in a

Sixth Amendment “right to counsel” case that, “[b]ased upon the statutory

language [contained in section 1547(a)], it is clear that if an individual

chooses to operate a motor vehicle in this Commonwealth, the

consent to submit to a chemical test has already been given”)

(emphasis added).

On appeal to this Court, Appellant simply claims that, since

Pennsylvania’s implied consent statute is based upon the exigencies of

“time’s dissipating effect on the evidence,” ergo, under McNeely, the

implied consent statute is unconstitutional because it “recognize[s] a per se

exigency.” From the above discussion, it is apparent that Appellant’s claim

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on appeal necessarily and immediately fails, as Pennsylvania’s implied

consent law was enacted for a variety of reasons apart from the exigencies

that exist in drunk-driving cases and both our Supreme Court and this Court

have held that the implied consent law falls under the “consent” exception

to the warrant requirement – not the “exigent circumstances” exception.

Since Appellant has raised no claim that Pennsylvania’s implied consent law

is otherwise unconstitutional (either facially or as applied) or that, under the

totality of the circumstances in this case, her implied consent was not

objectively valid, we conclude that Appellant is not entitled to relief in this

case.5, 6, 7
As such, we affirm Appellant’s judgment of sentence.
____________________________________________

5
Within Appellant’s brief to this Court, Appellant makes the conclusory
statement that 75 Pa.C.S.A. § 3755(a) “has clearly been invalidated by the
McNeely decision.” Appellant’s Brief at 10. However, Appellant has not
provided any explanation whatsoever as to why section 3755(a) “has clearly
been invalidated” by McNeely. See Appellant’s Brief at 10-11. Therefore,
Appellant’s claim is waived. Rabatin v. Allied Glove Corp., 24 A.3d 388,
396 (Pa. Super. 2011) (holding that the Superior Court “may not act as
counsel for an appellant and develop arguments on [her] behalf”). Further,
we note that Appellant does not explain why McNeely “clearly” invalidated
section 3755(a), given that McNeely was concerned with the exigent
circumstances exception and our Courts have held that “sections 1547 and
3755 comprise a statutory scheme which, under particular circumstances, . .
. imply the consent of a driver to undergo chemical or blood tests.”
Seibert, 799 A.2d at 64 (emphasis added).
6
Within Appellant’s brief, Appellant also declares: “Appellant would also
point out that it is not 100% clear that [section] 3755 even applies” because
“[s]ection 3755 applies to blood drawn at the initiation of medical personnel
[whereas] in this case the blood was drawn at the request of the police.”
Appellant’s Brief at 11. To the extent this equivocal statement constitutes a
claim for relief, Appellant did not raise the claim before the trial court.
Therefore, the claim is waived. Pa.R.A.P. 302(a) (“[i]ssues not raised in the
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(Footnote Continued)

lower court are waived and cannot be raised for the first time on appeal”).
Moreover, we note that, in Shaw, our Supreme Court explained:

[75 Pa.C.S.A. §] 3755(a) is, to say the least, inartfully
drafted. For some vague and curious reason, the legislature
has required a probable cause determination without
specifying who is to make such determination, or how such
an abstract requirement is to be met. The request of a
police officer, based on probable cause to believe a
violation of [the law relating to driving under the influence
of alcohol or a controlled substance], would seem to
satisfy the probable cause requirement and therefore
mandate that hospital personnel conduct [blood
alcohol content] testing. Likewise, a determination by
hospital personnel familiar with Section 3755(a), that
probable cause existed to believe that a person requiring
treatment had violated [the law relating to driving under the
influence of alcohol or a controlled substance], would also
seem to mandate that hospital personnel conduct [blood
alcohol content] testing.

Shaw, 770 A.2d at 299 n.3 (emphasis added); Commonwealth v. Barton,
690 A.2d 293, 299 (Pa. Super. 1997) (“[w]e therefore hold that, under the
statutory scheme developed through sections 1547 and 3755, once an
officer establishes probable cause to believe that a person operated a motor
vehicle under the influence, and subsequently requests that hospital
personnel withdraw blood samples for testing of alcohol content, the officer
is entitled to obtain the results of such tests, regardless of whether the test
was performed for medical purposes or legal purposes”).
7
Within Appellant’s brief, Appellant implies that McNeely has rendered
Pennsylvania’s implied consent statute unconstitutional. See Appellant’s
Brief at 14. McNeely does not stand for the broad proposition suggested by
Appellant. Certainly, McNeely merely rejected Missouri’s claim that “the
natural metabolization of alcohol in the bloodstream presents a per se
exigency that justifies an exception to the Fourth Amendment’s warrant
requirement for nonconsensual blood testing in all drunk-driving cases.”
McNeely, ___ U.S. at ___, 133 S.Ct. at 1556. Thus, McNeely did not
invalidate implied consent statutes – it was simply not concerned with such
statutes. Further, even after McNeely, the police may still claim that
exigent circumstances necessitated a warrantless blood draw. However, as
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Judgment of sentence affirmed. Jurisdiction relinquished.

Judge Panella joins.

Judge Ott concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/19/2015

_______________________
(Footnote Continued)

our Supreme Court has explained, “consistent with Fourth Amendment
principles, [] exigency in [drunk-driving cases] must be determined case by
case based on the totality of the circumstances.” Id. ___ U.S. at ___, 133
S.Ct. at 1556 and 1558.

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