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2017 PA Super 18
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KIM DAVID MARCH
Appellee No. 530 MDA 2016
Appeal from the Order Entered March 3, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005650-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
OPINION BY GANTMAN, P.J.: FILED JANUARY 26, 2017
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Berks County Court of Common Pleas, which granted the
suppression motion of Appellee, Kim David March, and suppressed the
results of his blood alcohol test (“BAC”).1 For the following reasons, we
reverse and remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
On July 14, 2015, Sergeant Kimberly Brown of the Cumru Township Police
____________________________________________
1
The Commonwealth has certified in its notice of appeal that the trial court’s
suppression order substantially handicapped or terminated the prosecution
of the Commonwealth’s case. Accordingly, this appeal is properly before us
for review. See Pa.R.A.P. 311(d); Commonwealth v. Astillero, 39 A.3d
353, 354 n.1 (2012).
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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Department responded at 6:31 p.m. to a single vehicle accident at 601
Philadelphia Avenue, near Cumru Elementary School. When Sergeant Brown
arrived at the scene around 6:36 p.m., EMS was already there, treating
Appellee, who was the unresponsive, male driver. EMS then took Appellee
to Reading Hospital for emergency medical care and treatment. Sergeant
Brown learned from witnesses to the accident that the vehicle had been
traveling eastbound on Philadelphia Avenue when it drove across the
westbound lane, went off the road, and struck a tree and utility pole.
Witnesses stated the vehicle “did not appear to have a reason to drive off of
the roadway.” Witnesses also described the driver as “out of it” and “pale.”
Police were able to identify Appellee through vehicle registration.
In plain view inside the vehicle, Sergeant Brown noticed five blue wax
paper bags and the bottom of a cut-off prescription bottle on the floor of the
vehicle near the driver’s seat. The prescription bottle contained residue
consistent with liquid added to heroin and used in the injection of
hypodermic needles. Another officer saw a hypodermic needle on the floor
of the front passenger side of the vehicle.
Sergeant Brown went directly to Reading Hospital, where she
requested a sample of Appellee’s blood. Although police now had probable
cause, Appellee was not yet under arrest. Appellee was unconscious, and
Sergeant Brown could not read the Implied Consent DL26 form to Appellee.
Appellee’s blood was drawn at 7:59 p.m.; the results indicated the presence
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of several Schedule I controlled substances in Appellee’s blood.
On August 6, 2015, the Commonwealth charged Appellee with DUI
(controlled substance), possession of drug paraphernalia, possession of a
controlled substance, and a summary traffic offense, arising from the
accident. The Commonwealth later added another related DUI charge. On
January 14, 2016, Appellee filed an omnibus pretrial motion containing a
motion to suppress the blood evidence as based on an alleged illegal blood
draw. The court held a suppression hearing on February 12, 2016. The
parties stipulated to the facts in the affidavit of probable cause and that a
search warrant was not obtained prior to the draw of Appellee’s blood.
On March 3, 2016, the court issued its Findings of Fact and
Conclusions of Law and suppressed the blood test results. The
Commonwealth timely filed a notice of appeal on March 31, 2016. On April
1, 2016, the court ordered the Commonwealth to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which the
Commonwealth timely filed on April 18, 2016.
The Commonwealth presents one issue for our review:
DID THE TRIAL COURT ERR IN SUPPRESSING EVIDENCE
OF [APPELLEE’S] BLOOD TEST RESULTS, AS THE POLICE
HAD THE REQUISITE REASONABLE SUSPICION/PROBABLE
CAUSE TO REQUEST A LEGAL BLOOD DRAW WITHOUT A
WARRANT PURSUANT TO THE IMPLIED CONSENT
STATUTE?
(Commonwealth’s Brief at 4).
The relevant standard and scope of review is:
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When the Commonwealth appeals an order suppressing
evidence, we may consider on review only the evidence
from the defendant’s witnesses along with the
Commonwealth’s evidence that remains uncontroverted.
Our standard of review is restricted to establishing whether
the record supports the suppression court’s factual
findings; however, we maintain de novo review over the
suppression court’s legal conclusions.
Commonwealth v. Guzman, 44 A.3d 688, 691-92 (Pa.Super. 2012) (citing
Commonwealth v. Brown, 606 Pa. 198, 203, 996 A.2d 473, 476 (2010)).
In its argument, the Commonwealth asserts that the Pennsylvania
Implied Consent Statute, at 75 Pa.C.S.A § 1547, is an independent
exception to the warrant requirement. The Commonwealth observes that
Appellee was unconscious and unable to refuse the test, and Pennsylvania
law has declined to provide unconscious persons with the right to refuse
chemical testing. Additionally, Appellee was involved in a motor vehicle
accident that required medical treatment, there was evidence of the use of
controlled substances present at the scene of the accident, and probable
cause existed to request a legal blood draw. The Commonwealth
emphasizes that Pennsylvania has declined to extend the right to refuse
blood testing to unconscious persons, and there was probable cause to
believe Appellee had violated 75 Pa.C.S.A. § 3802, so the blood draw was
valid. The Commonwealth concludes the trial court erred in suppressing the
blood test results under these circumstances, and asks this Court to reverse
and remand the case for trial.
In response, Appellee primarily relies on Commonwealth v. Myers,
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118 A.3d 1122 (Pa.Super. 2015), appeal granted, ___ Pa. ___, 131 A.3d
480 (2016), for the proposition that a warrantless blood test of an
unconscious person, under Pennsylvania’s Implied Consent Statute, violates
the United States Supreme Court’s judgment in Missouri v. McNeely, ___
U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), where the Court held
that the dissipation of alcohol in the blood does not constitute a per se
urgency to justify a warrantless blood test under the “exigent circumstances”
exception to the warrant requirement. Appellee concludes the warrantless
test of his blood was unconstitutional under McNeely, and the results from
his test should remain suppressed, because the facts of his case are virtually
indistinguishable from Myers. For the following reasons, we disagree with
Appellee’s position and agree with the Commonwealth’s position.
Analysis of this case involves the intersection of two relevant statutes;
the first statute is Pennsylvania’s implied consent statute, which provides in
pertinent part:
§ 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 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 section 1543(b)(1.1) (relating to
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driving while operating privilege is suspended or
revoked), 3802 (relating to driving under influence of
alcohol or controlled substance) or 3808(a)(2) (relating
to illegally operating a motor vehicle not equipped with
ignition interlock); or
* * *
(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
right of appeal as provided for in cases of suspension for
other reasons.
* * *
(c) Test results admissible in evidence.―In any
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summary proceeding or criminal proceeding in which the
defendant is charged with a violation of section 3802 or
any other violation of this title arising out of the same
action, the amount of alcohol or controlled substance in
the defendant’s blood, as shown by chemical testing of the
person’s breath, blood or urine, which tests were
conducted by qualified persons using approved equipment,
shall be admissible in evidence.
* * *
75 Pa.C.S.A. § 1547(a)(1), (b)(1)(i-ii), (b)(2)(i-ii), (b)(3), (c). Legal
precedent has interpreted the “reasonable grounds” requirement of Section
1547(a) to demand probable cause. Commonwealth v. Riedel, 539 Pa.
172, 180, 651 A.2d 135, 139-40 (1994) (citing Commonwealth v. Cieri,
499 A.2d 317, 322 (Pa.Super. 1985)). Under these circumstances, probable
cause exists where “the officer has knowledge of sufficient facts and
circumstances to warrant a prudent person to believe that the driver had
been driving under the influence of alcohol or a controlled substance.”
Commonwealth v. Simon, 655 A.2d 1024, 1027 (Pa.Super. 1995)
(quoting Commonwealth v. Welshans, 580 A.2d 379, 381 (Pa.Super.
1990)).
Generally, “a search or seizure is unreasonable unless conducted
pursuant to a valid search warrant upon a showing of probable cause.”
Commonwealth v. Miller, 996 A.2d 508, 512 (Pa.Super. 2010). One of
the standard exceptions to the warrant requirement is consent, either actual
or implied. Riedel, supra at 179, 651 A.2d at 139. The Implied Consent
Statute dispenses with the need to obtain a warrant in DUI cases, because
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the driver’s implied consent under the statute satisfies the consent exception
to the warrant requirement. Riedel, supra; Commonwealth v. Barton,
690 A.2d 293, 296 (Pa.Super. 1997).
Under the Implied Consent Statute, consent is a given and “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.” Commonwealth v.
Eisenhart, 531 Pa. 103, 109, 611 A.2d 681, 683 (1992). See also Riedel
supra at 183, 651 A.2d at 141. Because consent is implied, a person’s
“actual consent would be no different from his remaining silent.” Eisenhart,
supra at 108-9, 611 A.2d at 683. Section 1547 “grants an explicit right to a
driver who is under arrest for driving under the influence to refuse to
consent to chemical testing.” Id. at 109, 611 A.2d at 683. See also
Riedel, supra at 183, 651 A.2d at 141. On the other hand, a driver who is
not under arrest at the time the blood test is administered “cannot claim the
explicit statutory protection of section 1547(b).” Id. at 184, 651 A.2d at
142.
As the decision to “distinguish between classes of drivers in the
implied consent scheme is within the province of the legislature,” the
Pennsylvania Supreme Court has refused to “reformulate the law to grant an
unconscious driver or driver whose blood was removed for medical purposes
the right to refuse to consent to blood testing.” Id. at 185, 651 A.2d at 142.
(some internal citations omitted). This concept brings us to the other
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statute implicated in this case, which covers reports by emergency room
personnel and provides:
§ 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. This section shall be
applicable to all injured occupants who were capable of
motor vehicle operation if the operator or person in actual
physical control of the movement of the motor vehicle
cannot be determined. 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) (emphasis added). Section 3755 comes into play
when the defendant requires medical treatment “as a result of a motor
vehicle accident,” and there is probable cause to believe a DUI is involved;
in that circumstance, police can request a blood draw and/or the test results,
without a warrant. 75 Pa.C.S.A. § 3755(a). Compare Myers, supra
(holding Section 1547 prevailed over Section 3755, where case did not
involve motor vehicle accident, defendant was conscious when arrested, and
police waited until defendant was rendered unconscious by hospital
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administration of medication to seek chemical testing; defendant retained
protection of implied consent law and right to refuse testing under these
circumstances; police could not wait until defendant was reduced to
unconscious by medication to invoke Section 3755 and claim exigent
circumstances).
Both our Supreme Court and this Court have previously concluded:
[T]ogether, sections 1547 and 3755 comprise a statutory
scheme which, under particular circumstances, not only
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.
Barton, supra at 296 (citing Riedel, supra at 180, 651 A.2d at 139-40).
The legislature enacted these two statutes to “allow law enforcement to
preserve blood samples of a person suspected of driving under the influence
of drugs or alcohol.” Miller, supra at 512 (citing Commonwealth v.
West, 834 A.2d 625, 628 (Pa.Super. 2010), appeal denied, 586 Pa. 712,
889 A.2d 1216)). The purpose of statutory implied consent is “to enable the
police to obtain evidence of intoxication or drug use to be utilized in criminal
proceedings”; the purpose is “not to hinder law enforcement officers in
performing their duties under sections 3755 and 1547 when they have
probable cause.” Riedel, supra at 182, 651 A.2d at 140 (emphasis in
original).
Under Sections 1547 and 3755:
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[O]nce 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.
Barton, supra at 299-300. The Pennsylvania Supreme Court has, however,
stated, “[o]ur decision does not grant police officers carte blanche to invade
the privacy of an individual’s medical records.” Id. at 300 (quoting Riedel,
supra at 183, 651 A.2d at 141). Instead, the “scope of the intrusion is
limited to obtaining the results of the blood test.” Barton, supra at 300.
In other words, the statutes and pertinent law tell us that if a driver is
involved in a motor vehicle accident, is unconscious, and requires immediate
hospital medical treatment, and the police have probable cause to believe
the motorist was DUI, then the police can request and receive blood test
results from hospital personnel without a warrant. See 75 Pa.C.S.A. §§
1547, 3755; Riedel, supra; Barton, supra.
In the present case, police responded at 6:31 p.m. to a single vehicle
accident. When police arrived at the scene, EMS was already there, treating
Appellee, who was the unresponsive, male driver. EMS then took Appellee
to Reading Hospital for medical treatment. Sergeant Brown learned from
witnesses to the accident that Appellee’s vehicle had been traveling
eastbound on Philadelphia Avenue before it crossed into the westbound lane,
went off the road, and struck a tree and utility pole. Witnesses also
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described the driver as “out of it” and “pale.” Police were able to identify
Appellee through vehicle registration.
When Sergeant Brown approached the empty vehicle, she noticed five
blue wax paper bags and the bottom of a cut-off prescription bottle on the
floor of the vehicle near the driver’s seat. The prescription bottle contained
residue consistent with liquid added to heroin and used in the injection of
hypodermic needles. Another officer saw a hypodermic needle on the floor
of the front passenger side of the vehicle. Given this probable cause to
suspect DUI was involved, Sergeant Brown went to Reading Hospital, where
she requested a sample of Appellee’s blood. Although police now had
probable cause to suspect DUI, Appellee was not yet under arrest. Appellee
was also unconscious so Sergeant Brown did not read the Implied Consent
DL26 form to Appellee. Appellee’s blood was drawn at 7:59 p.m., and the
results indicated the presence of several Schedule I controlled substances in
Appellee’s blood. As a result, the Commonwealth charged Appellee with DUI
and related offenses. Appellee filed an omnibus pretrial motion to suppress
the blood evidence as illegally obtained. The court held a suppression
hearing on February 12, 2016, where the parties stipulated to the facts in
the affidavit of probable cause. On March 3, 2016, the court suppressed the
blood test results, reasoning as follows:
Findings of Fact
1. On July 14, 2015, Sergeant Kimberly Brown of the
Cumru Township Police Department responded to a single
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vehicle accident near Cumru Elementary School, located at
601 Philadelphia Avenue in Berks County, Pennsylvania.
2. When Sergeant Brown arrived at approximately 6:36
P.M., EMS was already there providing medical treatment
to an unresponsive male.
3. Sergeant Brown learned from witnesses that the
vehicle was driving eastbound on Philadelphia Avenue until
it went off the road, striking a tree and a utility pole.
4. Sergeant Brown learned from witnesses that the
operator of the vehicle was “out of it” and “pale.”
5. Sergeant Brown approached the vehicle and observed
five blue wax paper bags and the bottom of a cut-off
prescription bottle on the driver’s side floor.
6. The blue wax paper bags contained a powder that
was field tested and yielded a presumptive positive for
heroin.
7. Sergeant Pinkasavage observed a hypodermic needle
on the front passenger floor of the vehicle.
8. Sergeant Brown proceeded to Reading Hospital,
where she requested that a sample of the Defendant’s
blood be drawn pursuant to the implied consent law.
9. The Defendant was not conscious when Sergeant
Brown made the request.
10. Sergeant Brown did not read the DL26 form to the
Defendant.
11. At approximately 7:59 P.M., blood was drawn by the
phlebotomist and placed in tubes with the wrong name
listed on them.
12. The lab would not accept the tubes until the labels
were corrected.
13. The labels on the tubes were subsequently corrected.
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14. According to the National Institute of Health, heroin
can be detected in the body for one to two days, as
opposed to alcohol, which can only be detected for three to
ten hours.²
²https://www.nlm.nih.gov/medlineplus/ency/article/
003578.htm
Conclusions of Law
1. “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, 615 Pa. 395, 407,
42 A.3d 1040, 1047-48 (Pa. 2012).
2. The Fourth Amendment to the United States
Constitution 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 person or
things to be seized.”
3. A warrantless search of the person is reasonable only
if it falls within a recognized exception. See United
States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467,
[471, 38 L.Ed.2d 427, ___] (1973).
4. “One well-recognized exception applies 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.”
Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849,
1856[, 179 L.Ed.2d 865, ___] (2011).
5. The United States Supreme court held that the
natural [metabolism] of alcohol in the bloodstream does
not present a per se exigency that justifies an exception to
the Fourth Amendment’s warrant requirement for
nonconsensual blood testing. [McNeely, supra].
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6. The Court further held that “exigency in this context
must be determined case by case based on the totality of
the circumstances.” Id.
7. “In 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. at 1561.
8. The Pennsylvania Superior Court held that 75
Pa.C.S.A. § 1547(b)(1) provides a driver “with the
statutory right of refusal to blood testing.” [Myers,
supra].
9. In Myers, the Superior Court held that a warrantless
blood draw of an unconscious individual that was
performed pursuant to Pennsylvania’s implied consent law
violated the United States Supreme Court’s holding
[McNeely, supra.]
10. All of the cases cited by the Commonwealth were
decided prior to the Superior Court’s holding in Myers.
11. Other than the fact that the police officer in Myers
read the standard implied consent warnings to the
unconscious defendant while Sergeant Brown, in the
instant case, did not, the facts of this case are nearly
indistinguishable from the facts in Myers.
12. In addition, [Appellee] in the instant case was
suspected of being under the influence of heroin, which is
detectable for a longer period of time than alcohol.
13. Therefore, the exigency in this case was even less
than it was in Myers. The Commonwealth could have
waited for [Appellee] to gain consciousness and either
consent to or refuse the blood test.
14. In the alternative, the Commonwealth could have
obtained a search warrant.
15. Since the Commonwealth did neither, the blood test
results must be suppressed because they violate the
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Superior Court’s holding in [Myers, supra].
(Suppression Court’s Findings of Fact and Conclusions of Law, filed March 3,
2016, at 3-6). We respectfully disagree with the court for the following
reasons.
Initially, the suppression court’s and Appellee’s reliance on McNeely is
incorrect because the McNeely analysis did not involve an automobile
accident or the “consent” exception under an Implied Consent Statute.
McNeely involved a motor vehicle stop for speeding and crossing the
centerline of the road. After the defendant refused a breathalyzer test,
police placed the defendant under arrest and took him to a hospital for blood
testing. Police did not attempt to obtain a search warrant. At the hospital,
and after a police officer read the implied consent form to the defendant, the
defendant refused to consent to a blood draw. Despite the refusal, the
police officer directed hospital personnel to proceed with the test. The
defendant moved to suppress the blood test results, arguing the warrantless
drawing of his blood violated his Fourth Amendment rights. The McNeely
Court held that the dissipation of alcohol in blood does not constitute a valid
per se exigency to justify a warrantless blood test. The McNeely Court
analyzed the issue solely under the “exigent circumstances” exception to the
Fourth Amendment warrant requirement. Because the defendant in
McNeely had explicitly declined a blood test under Missouri’s Implied
Consent Law, the state tried to use the “exigent circumstances” exception to
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the warrant requirement to get around the defendant’s refusal. The
McNeely Court refused to adopt a categorical “rule of exigency” in DUI
cases. See McNeely, supra.
In contrast to McNeely, here Appellee was involved in a motor vehicle
accident and removed, unconscious, from the scene by ambulance for
emergency medical treatment, thus triggering Section 3755. Appellee was
not under arrest, so he had no right to refuse the blood test under
Pennsylvania’s Implied Consent Statute. See Riedel, supra. While
Appellee was at the hospital, police investigated the accident and uncovered
probable cause to believe a DUI was involved. Given the automobile
accident and the probable cause to suspect DUI, police were allowed to
request and receive blood test results from hospital personnel without a
warrant. See 75 Pa.C.S.A. §§ 1547, 3755; Riedel, supra; Barton, supra.
Because McNeely involved only the “exigent circumstances” exception to
the warrant requirement, it is not dispositive of the present case.
Likewise, the suppression court’s and Appellee’s reliance on Myers is
misplaced because the facts of Myers are distinguishable. In Myers, police
observed the defendant sitting in his parked vehicle while sporadically
pressing the brake pedal. The defendant then exited his vehicle and
approached the police cruiser. The defendant appeared intoxicated and
smelled like alcohol, so police placed him under arrest, based on probable
cause to believe he could not safely operate his vehicle. Police called a
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wagon and transported the defendant to the hospital to be medically
cleared. About forty-five minutes later, a police officer arrived at the
hospital. By that time, medications given by the medical staff had rendered
the defendant unconscious. Despite his unconscious state, the officer read
to him the standard informed consent form and requested hospital staff to
perform a warrantless blood draw. The trial court suppressed the
warrantless blood draw under the totality of these circumstances, because
the defendant was under arrest, he was unconscious and not properly given
the right to refuse the blood test, the police had plenty of time to obtain a
warrant, and alcohol in the blood is not a per se exigency. See Myers,
supra.
In contrast to Myers, here Appellee was involved in a motor vehicle
accident and removed unconscious from the scene by ambulance for
emergency medical treatment, thus triggering Section 3755. Appellee was
not under arrest, so he had no right to refuse the blood test under
Pennsylvania’s Implied Consent Statute. See Riedel, supra. In other
words, Appellee could not claim the explicit right that a driver, who is under
arrest for DUI, has to refuse to consent to chemical testing. See Eisenhart,
supra. While Appellee was already removed to the hospital, police
investigated the accident and uncovered probable cause to believe a DUI
was involved. Given the automobile accident and the probable cause to
suspect DUI, the police had statutory authority to request and receive blood
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test results from hospital personnel without a warrant. See 75 Pa.C.S.A. §§
1547, 3755; Riedel, supra; Barton, supra. Thus Myers is not dispositive
of the present case.
Finally, Appellee was unconscious and unresponsive at the scene of the
accident. The Pennsylvania Supreme Court has refused to “reformulate the
law to grant an unconscious driver or driver whose blood was removed for
medical purposes the right to refuse to consent to blood testing,” so
Appellee did not have the right to refuse consent in this case in any event.
See Riedel, supra at 185, 651 A.2d at 142. Unlike the McNeely and
Myers cases, the interplay between the law on implied consent and the law
on the reports by emergency room personnel law in the instant case allowed
for Appellee’s warrantless blood draw and release of the results. See
Barton, supra at 296 (citing Riedel, supra at 180, 651 A.2d at 139-40)
(referring to “statutory scheme” that implies consent of driver to undergo
chemical testing and requires 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”). Because Appellee was involved in a motor vehicle
accident, was unconscious at the scene and required immediate medical
treatment, was not under arrest, and remained unconscious when the blood
tests were administered, the warrantless blood draw was permissible.
Therefore, we hold the court erred in suppressing the results of Appellee’s
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blood test. Accordingly, we reverse and remand for further proceedings.
Order reversed; case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2017
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