Commonwealth, Aplt. v. Jones-Williams, A.

[J-41-2022] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 27 MAP 2021
:
Appellant : Appeal from the Order of the
: Superior Court dated August 11,
: 2020, reconsideration denied
v. : October 14, 2020, at No. 1428 MDA
: 2017 which Reversed/Vacated the
: Judgment of Sentence of the York
AKIM SHARIF JONES-WILLIAMS, : County Court of Common Pleas,
: Criminal Division, dated April 5,
Appellee : 2017, at No. CP-67-CR-0002824-
: 2015 and Remanded for a new trial.
:
: ARGUED: December 8, 2021
: RESUBMITTED: June 22, 2022

CONCURRING AND DISSENTING OPINION

JUSTICE WECHT DECIDED: July 20, 2022

By the investigating officers’ own admissions, exigent circumstances plainly were

absent in this case. Accordingly, I join the Court’s opinion to the extent that it rejects the

Commonwealth’s invocation of that constitutional exception to justify the warrantless

search and seizure of Akim Jones-Williams’ blood-test results in its pursuit of evidence to

prove that he drove under the influence (“DUI”) of a controlled substance. I write

separately to offer additional reasons why resort to exigency would be unavailing here in

light of the particular treatment of controlled substances under Pennsylvania’s DUI laws.

Furthermore, I respectfully dissent from the Majority’s resolution of the principal

legal question presented in this appeal. We granted review to determine whether the

Superior Court erred in concluding that Section 3755 of the Vehicle Code facially is
unconstitutional. That statute—which operates in conjunction with Section 1547(a) of the

Vehicle Code, the so-called “implied-consent” provision1—obliges hospital emergency

room personnel: (1) to “promptly take blood samples” of any person who “requires

medical treatment in an emergency room of a hospital” resulting from “a motor vehicle

accident” in which the person “drove, operated or was in actual physical control of any

involved motor vehicle . . . if probable cause exists to believe a violation of [75 Pa.C.S.

§ ]3802 (relating to driving under the influence of alcohol or controlled substance) was

involved”; (2) to transfer the sample “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”; and (3) to release the test results “upon request

of the person tested, his attorney, his physician or governmental officials or agencies.”

75 Pa.C.S. § 3755(a). See Commonwealth v. Shaw, 770 A.2d 295, 298 (Pa. 2001)

(“Section 3755 and the implied consent law, 75 Pa.C.S. § 1547, comprise a statutory

scheme which both implies the consent of a driver to undergo blood testing in certain

1 Section 1547(a) provides:

(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 or blood 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 in violation of section 1543(b)(1.1)
(relating to driving while operating privilege is suspended or revoked), 3082
(relating to driving under the influence of alcohol or controlled substance) or
3808(a)(2) (relating to illegally operating a motor vehicle not equipped with
ignition lock).

75 Pa.C.S. § 1547(a).

[J-41-2022] [MO: Mundy, J.] - 2
circumstances and requires hospital personnel to release the blood test results at the

request of, among others, a police officer.”).

Relying upon the expressions of a plurality of Justices in Commonwealth v. Myers,

164 A.3d 1162 (Pa. 2017), the Superior Court held that implied consent does not serve

as an independent exception to the warrant requirement under the Fourth Amendment to

the United States Constitution2 or under Article I, Section 8 of the Pennsylvania

Constitution.3 Accordingly, it reasoned that implied consent cannot support the

warrantless seizure of a DUI suspect’s blood or the warrantless disclosure to law

enforcement of the results of any blood tests under Section 3755(a). The Majority

vacates that portion of the lower court’s decision on the grounds that “the record does not

establish that Section 3755 applied under these circumstances.” Majority Op. at 17. I

disagree. The record amply supports the Commonwealth’s claim that investigators

obtained the results of Jones-Williams’ blood test pursuant to Section 3755(a) and sought

to have those results admitted at trial (over Jones-Williams’ objections) on the

independent grounds that Jones-Williams impliedly consented to having them turned over

to investigators. Therefore, I would reach the question of the statute’s constitutionality.

Because the lower court correctly concluded that statutorily implied consent is not a valid

2 “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.” U.S. CONST.
amend. IV.
3 “The people shall be secure in their persons, houses, papers and possessions
from unreasonable searches and seizures, and no warrant to search any place or to seize
any person or things shall issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by the affiant.” PA. CONST.
art. I, § 8.

[J-41-2022] [MO: Mundy, J.] - 3
exception to the warrant requirement—and thus a DUI suspect does not impliedly consent

to having his blood drawn and tested, or to having those results turned over to law

enforcement, simply by virtue of having driven a motor vehicle in Pennsylvania—I would

affirm the Superior Court’s judgment in toto.

I.

The Commonwealth initially relies upon the doctrine of exigent circumstances to

defend the manner in which the Newberry Township Police Department obtained the

results of Jones-Williams’ blood test without a warrant. The Majority correctly finds that

the Commonwealth’s reliance is misplaced. “Exigent circumstances are defined by a

‘compelling need for official action and no time to secure a warrant.’” Commonwealth v.

Trahey, 228 A.3d 520, 537-38 (Pa. 2020) (quoting Missouri v. McNeely, 569 U.S. 141,

149 (2013)). In assessing the presence or absence of exigency, a court must consider

the totality of the circumstances. See id. at 530.

The basis for the investigators’ probable cause assertion here was circumstantial

evidence that Jones-Williams drove his car into the path of an oncoming train while under

the influence of tetrahydrocannabinol (“THC”), the main psychoactive compound in

marijuana.4 Thus, this case does not align factually with the circumstances presented in

4 Whether the police had probable cause to believe that Jones-Williams had driven
under the influence of a controlled substance is not reasonably in dispute. Two
eyewitnesses, including the paramedic who rendered aid to Jones-Williams at the crash
site, told investigators that they smelled burnt marijuana emanating from both his SUV
and his person after he was ejected, or otherwise extricated himself, from the wreck that
he caused by driving across a set of train tracks in front of an oncoming train. Another
witness, the conductor, also informed an investigating officer that he saw Jones-Williams’
fiancée sitting in the front passenger seat, from which we can reasonably conclude that
Jones-Williams (rather than his young daughter) was driving. The lead detective,
Sergeant Steven D. Lutz, gathered all of this information at the scene. Sergeant Lutz

[J-41-2022] [MO: Mundy, J.] - 4
either Myers or Mitchell v. Wisconsin, ___ U.S. ___, 139 S.Ct. 2525 (2019) (plurality),

both of which involved suspicions that an unconscious driver drove under the influence

of alcohol. That is significant, as we recognized in Trahey, because although a blood test

“may be necessary” to prove DUI offenses involving controlled substances under

Section 3802 of the Vehicle Code beyond a reasonable doubt, unlike alcohol-related

offenses, “there is no pressing need to conduct the test” for controlled substances “within

a specified time, and thus no exigency.” 228 A.3d at 538.

Moreover, as the Supreme Court explained in McNeely, “the natural dissipation of

alcohol in the bloodstream does not constitute” an exigency per se justifying a warrantless

blood draw. 569 U.S. at 165. The same necessarily must be true of controlled

substances; in fact, it may be more so with regard to certain controlled substances, like

cannabinoids, given the human body’s naturally slower rates of metabolism when

compared with alcohol. In either scenario, some other factor must be present that

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

at 149 (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)). In the Mitchell plurality’s

view,

unconsciousness does not just create pressing needs; it is itself a medical
emergency. It means that the suspect will have to be rushed to the hospital
or similar facility not just for the blood test itself but for urgent medical care.
Police can reasonably anticipate that such a driver might require monitoring,
positioning, and support on the way to the hospital; that his blood may be
drawn anyway, for diagnostic purposes, immediately upon arrival; and that
immediate medical treatment could delay (or otherwise distort the results
of) a blood draw conducted later, upon receipt of a warrant, thus reducing
its evidentiary value. . . .

then dispatched Sergeant Keith A. Farren to York Hospital in order to obtain Jones-
Williams’ blood for chemical testing. See Notes of Testimony (“N.T.”), Suppression
Hearing, 12/21/2015, at 68-79.

[J-41-2022] [MO: Mundy, J.] - 5
 Indeed, in many unconscious-driver cases, the exigency will be more
acute . . . . A driver so drunk as to lose consciousness is quite likely to
crash, especially if he passes out before managing to park. And then the
accident might give officers a slew of urgent tasks beyond that of securing
(and working around) medical care for the suspect. Police may have to
ensure that others who are injured receive prompt medical attention; they
may have to provide first aid themselves until medical personnel arrive at
the scene. In some cases, they may have to deal with fatalities. They may
have to preserve evidence at the scene and block or redirect traffic to
prevent further accidents. These pressing matters, too, would require
responsible officers to put off applying for a warrant, and that would only
exacerbate the delay—and imprecision—of any subsequent BAC test.
In sum, all these rival priorities would put officers, who must often engage
in a form of triage, to a dilemma. It would force them to choose between
prioritizing a warrant application, to the detriment of critical health and safety
needs, and delaying the warrant application, and thus the BAC test, to the
detriment of its evidentiary value and all the compelling interests served by
BAC limits. This is just the kind of scenario for which the exigency rule was
born—just the kind of grim dilemma it lives to dissolve.
Mitchell, 139 S.Ct. at 2537-38 (cleaned up; emphasis in original). But the Mitchell plurality

stopped short of issuing a categorical rule. Consequently, a driver’s unconsciousness

alone remains an insufficient basis upon which to justify a warrantless blood draw under

the totality of the circumstances. Something more is needed.

Here, the Commonwealth asserts that the other factor supporting its exigency

justification was the “chaotic situation” at the crash site. Commonwealth’s Br. at 38

(quoting N.T., Suppression Hearing, 12/21/2015, at 77). Specifically, Jones-Williams’

fiancée had died at the scene, there was evidence to collect and witnesses to interview,

and traffic had to be diverted since the train was stuck at the level crossing that serves

as a thruway for motor vehicles. However, as the Majority highlights, both Sergeant

Farren and Sergeant Lutz conceded at the suppression hearing that, those factors

notwithstanding, they could have obtained a search warrant before proceeding to York

Hospital. See N.T., Suppression Hearing, 12/21/2015, at 64-66 (Testimony of Sergeant

[J-41-2022] [MO: Mundy, J.] - 6
Farren); id. at 83-84 (Testimony of then-Lieutenant Lutz). Those admissions are fatal to

the Commonwealth’s assertion of exigent circumstances.

But the absence of exigency is even more pronounced in situations, like this one,

where a member of the hospital’s emergency room staff preemptively draws a sample of

a DUI suspect’s blood without being asked to do so by law enforcement, thereby

preserving any evidence of drugs or alcohol that might be in the blood at the time of

extraction. See Commonwealth v. Riedel, 651 A.2d 135, 141 (Pa. 1994) (explaining that

the exigent circumstances exception does not apply where there is “no danger that [a

suspect’s] blood alcohol content would evanesce because it was preserved by [a] medical

purposes blood test”). Although the Mitchell plurality spoke favorably of permitting

warrantless blood draws based upon the fact that unconscious patients often will have

their blood taken for diagnostic purposes upon their arrival at a hospital in any event, that

acknowledgement concerned only the necessity of extracting a blood sample in order to

preserve evidence when there is no time to apply for a warrant. It did not speak to any

subsequent testing or disclosure of the results of such testing to law enforcement without

a warrant, when the exigency likely will have diminished entirely. In fact, under

Section 3755(a), Pennsylvania hospitals have twenty-four hours to transfer blood

samples to an accredited facility for testing, and it may take an additional day or more for

results to come back.5 The Commonwealth’s sole purpose in obtaining the test results at

that point will be to determine whether criminal charges are warranted. That interest is

5 It took three days for NMS Labs to receive the sealed blood chain-of-custody kit
that York Hospital mailed on July 5, 2014. NMS released the results of its toxicology
analysis ten days later. See NMS Labs Toxicology Report, 7/15/2014, at 1
(Commonwealth’s Suppression Hearing Ex. 2).

[J-41-2022] [MO: Mundy, J.] - 7
not an independent exigency that justifies demanding a suspect’s medical test results

without first obtaining a warrant.

Even in circumstances where hospital personnel have not preemptively drawn and

preserved a DUI suspect’s blood, where the sole basis for probable cause is evidence

demonstrating that the suspect drove under the influence of marijuana, as it was here, I

seriously doubt that law enforcement will be unable to obtain a search warrant for a blood

test before the pertinent evidence dissipates from the suspect’s blood. Section 3802 of

the Vehicle Code prohibits an individual from driving, operating, or being in actual physical

control of the movement of a vehicle if “[t]here is in the individual’s blood any amount of

a: (i) Schedule I controlled substance, as defined in . . . The Controlled Substance, Drug,

Device and Cosmetic Act; (ii) Schedule II or Schedule III controlled substance, as defined

in” the Drug Act, “which has not been medically prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) or (ii).” Id. § 3802(d)(1)(i)-(iii). The

Drug Act, in turn, classifies “Marihuana” as a Schedule I controlled substance. 35 P.S.

§ 780-104(1)(iv). Because it is unlawful to drive under the influence of any amount of

marijuana,6 and because it potentially can take days or weeks for THC’s inactive

metabolite to naturally dissipate from one’s body,7 I find it difficult to imagine a scenario

6 See Commonwealth v. Barr, 266 A.3d 25, 47 (Pa. 2021) (Dougherty, J., concurring
and dissenting) (identifying a potential point of conflict between the Medical Marijuana
Act, which legalized, among other things, certain methods of marijuana consumption for
medicinal purposes, and the Vehicle Code, which prohibits driving with any amount of
THC or its metabolite in one’s system).
7 See NMS Labs Toxicology Report, 7/15/2014, at 2-3 ¶¶ 3-4 (explaining that,
“[w]hile THC disappears from the blood rapidly, THCC [the inactive metabolite] may
persist for several hours, and in heavy chronic use may be present at low concentrations
for several days”). Of course, blood testing is not the exclusive means of confirming the
presence of THC or its metabolite in a suspect’s system. Evidence of marijuana use may

[J-41-2022] [MO: Mundy, J.] - 8
in which exigency would justify a warrantless blood draw, much less warrantless chemical

testing of a preserved sample, based solely upon suspicions that a person drove a vehicle

while under the influence of marijuana in violation of Pennsylvania DUI law.8

persist in an individual’s urine for anywhere from a week to several months, depending
on the frequency of use. See Ken Kulig, Interpretation of Workplace Tests for
Cannabinoids, 13 J. MED. TOXICOL. 106, 109 (2017) (“The current regulatory testing for
cannabinoids uses as the target analyte in urine an inactive THC metabolite that may
persist for weeks or even months in chronic users after the last use.”) (citing George M.
Ellis, Jr., et al., Excretion patterns of cannabinoid metabolites after last use in a group of
chronic users, 38 CLINICAL PHARMACOLOGY & THERAPEUTICS 572, 527 (1985)
(summarizing findings of controlled study demonstrating that the mean excretion time for
chronic marijuana users under strict supervised abstinence was 27 days, while some
participants took as many as 77 days for positive test results to drop below screening
parameters)); Anne Smith-Kielland, et al., Urinary Excretion of 11-Nor-9-Carboxy-Δ9-
Tetrahydrocannabinol and Cannabinoids in Frequent and Infrequent Drug Users, 23 J.
ANAL. TOXICOL. 323, 323 (1999) (for self-reported infrequent users, “low but detectable
concentrations of” THC metabolite were observed more than five days beyond last
documented use of marijuana “in most of the [urine] specimens analyzed”). Likewise,
some studies have shown that cannabinoids may be detected in hair follicles up to two or
three months after consumption. See Michelle Taylor, et al., Comparison of cannabinoids
in hair with self-reported cannabis consumption in heavy, light and non-cannabis users,
36 DRUG & ALCOHOL REV. 220, 225 (2017).
8 To be clear, I do not suggest a per se rule for all marijuana DUI cases. I grant the
possibility that “imminent medical treatment” may be rendered in such a way that DUI
evidence potentially present within a suspect’s blood may be affected other than by
natural metabolic processes, Mitchell, 139 S.Ct. at 2538 (plurality) (opining that
“immediate medical treatment could delay (or otherwise distort the results of) a blood
draw conducted later, upon receipt of a warrant, thus reducing its evidentiary value”), the
circumstances of which, of course, would need to be assessed on a case-by-case basis.
But like the other justifications offered by the Mitchell plurality in favor of its preferred
“almost always” (but not quite) exigency rule for warrantless blood draws of unconscious
drivers, id. at 2531—which it supported with references to medical treatises, federal
agency reports, clinical and law enforcement guidance, and other sources, id. at 2537-38
nn.5-8—the plurality’s “distortion” rationale was raised in the context of alcohol-related
DUI investigations. Indeed, the lone authority cited by the plurality with respect to
distortion was a brief passage in McNeely in which the Supreme Court identified the
“countervailing concerns” that DUI experts face in drunk driving cases when delays in
obtaining blood draws complicate efforts to “work backwards from the [Blood Alcohol
Content (“BAC”)] at the time the sample was taken to determine the BAC at the time of
the alleged offense,” thereby “rais[ing] questions about the accuracy of the calculation.”
McNeely, 569 U.S. at 156. Notwithstanding those concerns, the Court rejected calls for

[J-41-2022] [MO: Mundy, J.] - 9
 Lastly, the Commonwealth and the Pennsylvania District Attorneys Association

(“PDAA”) suggest that the specific concentration of THC in Jones-Williams’ bloodstream

is necessary to substantiate the charge of homicide by vehicle while DUI.

Commonwealth’s Br. at 36 n.143 (noting “the great evidentiary need for detecting the

active impairing ingredient of the drug beyond a mere metabolite in order to establish

criminal negligence and the DUI caused the crash”); PDAA’s Br. as Amicus Curiae at 11

(asserting that “the degree of dissipation of marijuana in the blood stream is crucial to any

a per se exigency rule in DUI cases, reasoning that the half-century of technological
“advances . . . that allow for the more expeditious processing of warrant applications”
necessarily “are relevant to an assessment of exigency,” “particularly” in drunk-driving
investigations, “where the evidence offered to establish probable cause is simple,” and
given that “BAC evidence is lost gradually and relatively predictably.” Id. at 154-55.

As indicated, Mitchell and McNeely both involved individuals suspected of driving
under the influence of alcohol. In Pennsylvania, as in virtually every State, heightened
tiers of punishment are available in alcohol-related DUI cases based upon proof that a
DUI suspect’s BAC level exceeded a particular measurement at a specific moment in
time—so medical treatments that demonstrably distort BAC levels in unnatural ways may
take on legal significance when look-back periods are at issue. When it comes to driving
under the influence of marijuana (and other controlled substances) under Section 3802,
however, there are no such tiers; proof that a person drove with “any amount” of such
substances in his or her blood will suffice for a conviction. In that vein, I am not aware of
any instances from DUI case law or clinical studies in which the kinds of emergency
medical treatment typically provided to individuals rendered unconscious from car
accidents have been shown to cause the complete dissipation of controlled substances
from one’s blood within the time that a warrant generally can be obtained with the advent
of modern technologies. But even in that seemingly remote event, blood-draw evidence
is not a prerequisite to conviction. The Commonwealth may still attempt to prove DUI-
general impairment resulting from the use of controlled substances at trial with the same
kind of relevant direct or circumstantial evidence that could have supported the blood-
draw warrant application in the first place. All of this is to say that rank speculation about
the effects that “imminent medical treatment” might have on the levels of THC or its
metabolite in an unconscious DUI suspect’s blood is not an exception that swallows the
general rule requiring warrants for blood draws in these circumstances. In any case, here
the Commonwealth has never suggested that the medical treatment Jones-Williams
received upon his arrival at York Hospital’s emergency room was likely to accelerate the
natural dissipation of, or otherwise “distort,” evidence pertaining to marijuana use that
investigators suspected was in his bloodstream, so the point largely is academic.

[J-41-2022] [MO: Mundy, J.] - 10
prosecution for Homicide by Vehicle While DUI,” because the Commonwealth must prove

not only that the driver was under the influence of alcohol or a controlled substance, “but

that this consumption was the cause of the fatality”). A person is guilty of homicide by

vehicle while DUI if he “unintentionally causes the death of another person as the result

of a violation of [75 Pa.C.S. § ]3802 (relating to driving under the influence of alcohol or

controlled substance) and . . . is convicted of violating section 3802.” 75 Pa.C.S.

§ 3735(a)(1). Though it may be the case that the sufficiency of the evidence needed to

prove the causation element of that offense might turn upon the quantum of a controlled

substance in one’s system, the Commonwealth’s “significant interest in obtaining [that]

evidence” before its natural dissipation by itself simply does not constitute an exigent

circumstance justifying the warrantless seizure or search of a person’s blood or blood-

test results. Trahey, 228 A.3d at 536; cf. McNeely, 569 U.S. at 165. Thus, any assertions

of necessity due to natural dissipation in the particular context of a homicide-by-vehicle-

while-DUI investigation or prosecution are unavailing.

II.

A.

Although this Court has spilled much ink over the last thirty years on the subject of

implied consent, we have yet to definitively resolve its validity as a purported exception

to the warrant requirement under the Fourth Amendment or Article I, Section 8 of our

federal and state Constitutions, respectively.9 We took this case to review the propriety

9 See, e.g., Commonwealth v. Bell, 211 A.3d 761, 763-64 (Pa. 2019) (upholding the
“evidentiary consequence” of a DUI defendant’s refusal to submit to a blood test set forth
in Section 1547(e)—i.e., that evidence of the refusal itself can be admitted at trial to
suggest consciousness of guilt); Myers, 164 A.3d at 1172-81 (plurality) (opining that

[J-41-2022] [MO: Mundy, J.] - 11
of the lower court’s determination that Section 3755 of the Vehicle Code constitutionally

is deficient because it does not require actual, knowing, and voluntary consent before law

enforcement agents may compel a person to submit to a blood draw or may obtain the

results of a blood test without first obtaining a warrant for the same. Sidestepping those

issues, however, the Majority contends that the lower court “could only reach that

constitutional assessment having first concluded that the Commonwealth complied with

Section 3755.” Majority Op. at 15.

The Court reasons that we ought not address the statute’s constitutionality

“[b]ecause the record does not establish that Section 3755 applied under” the

circumstances presented here. Id. at 17. In particular, the Majority highlights the fact that

Sergeant Farren’s testimony made no mention of Section 3755. Instead,
the record reflects that Sergeant Farren went to the hospital with the
intention of seeking [Jones-Williams’] consent. The paperwork Sergeant
Farren filled out to request that the hospital transfer the blood sample to
NMS specifically stated underneath his signature: “I am requesting this test
in accordance with 75 Pa.S.C.A. 1547.” Commonwealth’s Exhibit 18.
Although Lieutenant Lutz testified that he believed Sergeant Farren could

implied consent is not an independent exception to the warrant requirement); Shaw,
770 A.2d at 298-99 (holding that, where hospital personnel conduct BAC testing for
“independent medical purposes”—i.e., not at the request of law enforcement—
investigators are not statutorily authorized to obtain those results under Section 3755,
and therefore violate Article I, Section 8 when they do so without a warrant); Riedel, 651
A.2d at 139 (holding that “where an officer has probable cause to request a blood test
pursuant to 75 Pa.C.S. § 3755(a), the failure to verbalize the request shall not bar the
officer from obtaining the results of a medical purposes blood test without a warrant”); id.
at 140 (“[B]ecause the police had probable cause to request the blood test, they were
entitled to obtain the results without a search warrant, regardless of who actually drew
the blood.”); Commonwealth v. Kohl & Danforth, 615 A.2d 308, 313-16 (Pa. 1992)
(holding that warrantless blood draws and chemical tests undertaken pursuant to the
implied-consent provision of the now-repealed Section 1547(a)(2) of the Vehicle Code
violate state and federal constitutional provisions against unreasonable searches and
seizures because the statute did not require investigators to establish probable cause
that the driver had been driving under the influence); Commonwealth v. Eisenhart, 611
A.2d 681, 683-84 (Pa. 1992) (holding that a conscious driver has a statutory right to
revoke his implied consent under Section 1547(b) of the Vehicle Code).

[J-41-2022] [MO: Mundy, J.] - 12
 obtain the blood under Section 3755, that subjective assessment alone
does not establish compliance with the statute. See, Trahey, supra n.5.
Most importantly, an objective analysis of the evidence reveals that the
record is silent as to why the hospital drew [Jones-Williams’] blood prior to
Sergeant Farren’s arrival. In the absence of any facts that the blood was
taken pursuant to Section 3755, it cannot be said that the Commonwealth
proved adherence with the requirements of the statute. See Shaw,
770 A.2d, at 623 (finding Section 3755 inapplicable because it “is not a case
where a blood sample has been taken pursuant to Section 3755.”).
Id. at 16-17 (footnote omitted). The Majority further explains that “the trial court only

provided a post hoc assessment of Section 3755 in its Rule 1925(a) opinion, long after

the suppression motion had been denied based upon its finding of exigent

circumstances.” Id. at 17. Because that finding “was legally incorrect, the Superior Court

could have reversed the denial of suppression for that reason alone without its further

assessment of Section 3755.” Id. I respectfully disagree.

As a threshold matter, this Court long has regarded Section 1547 and

Section 3755 as coordinate components of a unitary implied-consent “scheme.” See

Shaw, 770 A.2d at 298; Riedel, 615 A.2d at 139-40 (“Together, these sections comprise

a statutory scheme that implies the consent of a driver to undergo chemical blood testing

under particular circumstances.”); id. at 139 (referring to Section 3755(a) as the

“emergency room counterpart” of Section 1547). Indeed, we have highlighted the fact

that the two provisions “were originally part of the same section, which was subsequently

amended to the current scheme.” Riedel, 615 A.2d at 140 n.2 (citing Law of June 17,

1976, P.L. 162, No. 81, § 1, amended by Law of Dec. 15, 1982, P.L. 1268, No. 289, §§ 5

and 11).

We also have clarified that “the failure to verbalize [a] request” for a blood test

under Section 3755(a) “shall not bar [an] officer from obtaining the results of a medical

purposes blood test without a warrant.” Id. at 141. That is because “the litmus test under

[J-41-2022] [MO: Mundy, J.] - 13
section 3755 is probable cause to request a blood test, not the request itself.” Id. at 140

(emphasis in original). Thus, so long as police have “probable cause to request the blood

test” based upon a suspected violation of the DUI laws, we have held that they statutorily

are “entitled to obtain the results [of that test] without a search warrant, regardless of who

actually withdrew the blood” or for what purpose. Id. (emphasis added).

The Majority acknowledges that Sections 1547 and 3755 are part of the same

statutory scheme, but it implies that the Myers Court somehow abrogated the foregoing

passages from Riedel by noting “that the authority of these statutes are not

interchangeable.” Majority Op. at 16 n.6 (citing Myers, 164 A.3d at 670 n.14). I differ with

that assessment. Footnote fourteen in Myers was prompted by the Commonwealth’s

assertion that an unconscious driver has no right to refuse a blood test under

Section 1547, which hung upon a statement in Riedel that the Court “w[ould] not

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.” Riedel, 651 A.2d

at 142. The footnote went on to distinguish Myers’ case from Riedel’s, and in so doing

laid bare the Commonwealth’s “selective reliance upon [that] decontextualized sentence.”

Myers, 164 A.3d at 670 n.14.

Notably, Myers sought to vindicate his statutory right of refusal under

Section 1547(b)(1) because, although unconscious, he was under arrest when his blood

was drawn by hospital personnel, his blood was not drawn for medical purposes, and he

believed it would not have been drawn at all but for investigators’ intercession. Riedel,

by contrast, was neither unconscious nor under arrest when his blood was drawn, and

his blood was taken and tested by the hospital for medical purposes before investigators

[J-41-2022] [MO: Mundy, J.] - 14
submitted their request for the test results. The Court rejected Riedel’s claim that the

statutory right of refusal in Section 1547 should apply to blood draws taken for medical

purposes or under Section 3755, reasoning that Riedel wasn’t under arrest. While the

Court just as easily could have reached the same result on statutory construction grounds

given that Section 3755 does not contain a right-to-refuse component, in Myers we found

Riedel’s holding to be “entirely consistent with” Section 1547(b)(1)’s plain language, as

“the critical fact” under that provision “is not whether the motorist is conscious, but whether

the motorist is under arrest.” Id. Because Myers was denied an opportunity to refuse

blood testing while under arrest, albeit in an unconscious state, the Commonwealth’s

resort to Riedel was misplaced.

Significantly, the constitutionality of Section 3755 was not before us in Myers, and

our brief discussion of its mechanics vis-à-vis Section 1547, whose construction was

directly under consideration, in no way resolved the present dispute. At issue here is

whether the same facts that give law enforcement agents probable cause to believe that

a suspect has driven under the influence of drugs or alcohol, thus enabling them to seek

a blood draw under the latter provision, also authorize investigators to request that

hospital personnel transfer blood samples for testing under the former, regardless of the

samples’ provenance. Riedel and Shaw make clear that facts giving rise to probable

cause under Section 1547 suffice without more under Section 3755. In that sense, the

probable cause determination is interchangeable, and such a showing by investigators is

a prerequisite common to both provisions, which present alternative pathways for

obtaining blood test results. Myers did not upset that understanding.

[J-41-2022] [MO: Mundy, J.] - 15
 The Majority also makes hay of the bare fact that “Sergeant Farren’s testimony

made no mention of Section 3755,” and infers from that omission an intent to seek Jones-

Williams’ actual consent for a blood draw. Majority Op. at 16. In drawing that inference,

the Majority neglects the fact that Sergeant Farren’s supervisor explicitly testified that he

sent Sergeant Farren to the hospital to obtain a legal blood draw in accordance with that

very provision:

Commonwealth: In terms of obtaining a search warrant in
this particular matter, when you said that
you were proceeding to request a legal
blood draw was obtained [sic], what was
the theory behind requesting that blood
under a legal blood draw theory?
Sergeant Lutz: I believe the vehicle code allows you to
have a legal blood drawn [sic]. I believe
it’s underneath 3755. I’m not quite sure.
But it allows the Commonwealth to, if
they have probable cause, to have a
legal blood drawn [sic].
Commonwealth: And was that specifically the section you
were proceeding under?
Sergeant Lutz: That was the section that I was using for
Officer Farren to have legal blood drawn.
Commonwealth: And you never pursued any other
theories such as a search warrant;
correct?
Sergeant Lutz: I did apply for a search warrant after the
fact for medical records.
N.T., Suppression Hearing, 12/21/2015, at 84. This line of testimony undermines the

foundation upon which the Majority elects not to address the critical question of which we

granted review. The Majority deems this portion of Sergeant Lutz’s testimony a

“subjective assessment” that “alone does not establish compliance with” Section 3755 in

the face of “an objective analysis” that the record is silent as to York Hospital’s rationale

[J-41-2022] [MO: Mundy, J.] - 16
for drawing Jones-Williams’ blood. Majority Op. at 16-17. But as noted above, the effect

of investigators’ probable cause determinations upon their authority to obtain blood test

results under either statutory provision is the same, never mind why they were drawn.

And here the evidence objectively establishes that investigators had probable cause to

believe Jones-Williams had driven under the influence of marijuana when Sergeant

Farren requested that the blood samples be transferred for testing.

Additionally, in likening this case to Shaw, the Majority misapprehends the relevant

portion of that Court’s analysis, suggesting that Section 3755 was “inapplicable” in Shaw

because the blood sample was not taken pursuant to the dictates of that provision. Id.

at 17. But Shaw makes clear that the statute was inapplicable because the hospital

already had tested the blood for independent medical purposes. See Shaw, 770 A.2d

at 299 (“[As Shaw’s] BAC test was not conducted pursuant to Section 3755(a), the

release of the result of the BAC test at the request of Trooper Hershey was not authorized

by Section 3755(a), nor is there any other statutory basis for releasing the result.”)

(emphases added). In the absence of an alternative “statutory basis” for obtaining the

test results without a warrant, “the release of the result of [Shaw’s] BAC test . . . to Trooper

Hershey without a warrant and in the absence of exigent circumstances, violated Article I,

Section 8 of the Pennsylvania Constitution.” Id. at 299.

In light of these pronouncements, I reiterate that whether York Hospital drew

Jones-Williams’ blood for “independent medical purposes” or in adherence to “the

abstract requirement that ‘probable cause exists to believe’” that he violated the DUI laws,

[J-41-2022] [MO: Mundy, J.] - 17
id. at 298, is irrelevant as far as Section 3755 is concerned.10 The presence or absence

of the hospital’s reasons for drawing his blood on this record is of no moment. What

matters is that, after drawing and preserving the blood samples, the hospital did not

transfer them for testing until Sergeant Farren went to the hospital’s laboratory, requested

that Jones-Williams’ blood be tested for criminal investigative purposes, and completed

the required paperwork to effectuate the samples’ transfer to an accredited lab. See N.T.,

Suppression Hearing, 12/21/2015, at 59 (“I actually responded up to the laboratory and

filled out the proper form for the NMS Labs and made the request there because the blood

was already drawn.”).

Moreover, it is immaterial that the standard form that Sergeant Farren submitted

included the pre-typed statement, “I am requesting this test in accordance with

75 Pa.C.S.A. § 1547,” NMS Labs Analysis Requisition and Property Receipt / Chain of

Custody, 7/5/2014 (Commonwealth’s Suppression Hearing Ex. 1), which apparently is a

requirement that the lab itself mandates. See N.T., Suppression Hearing, 12/21/2015,

at 60 (“Q. In terms of doing this, filling out those forms, does the lab reporting also require

you as part of their paperwork to go ahead and specifically express to them that you are

requesting this pursuant to a police investigation? A. Correct.”). Notwithstanding

10 The Shaw Court shrewdly observed that “Section 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.” Shaw, 770 A.2d at 298 n.3. While the
statute is clear that “[t]est results shall be released upon request of . . . government
officials or agencies,” it doesn’t expressly authorize law enforcement to request anything
else. 75 Pa.C.S. § 3755(a). To the extent Section 3755 provides any basis for law
enforcement agents to direct hospital personnel to “promptly” draw a person’s blood and
timely transmit it for testing, those powers are not clearly delineated in the statute, but
instead have been inferred by the courts. See Shaw, 770 A.2d at 298 n.3 (outlining
alternative means by which Section 3755(a) might be satisfied).

[J-41-2022] [MO: Mundy, J.] - 18
whatever extraneous declarations the lab may have added to the standard form, per

Shaw, all that Section 3755 evidently required of Sergeant Farren when he submitted his

request for a toxicology analysis of the preserved blood sample was that he possess

probable cause to believe that Jones-Williams had violated the DUI law. See Shaw,

770 A.2d at 298 n.3; n. 10, supra. The record inarguably supports that probable cause

determination.

For that reason, I agree with the Superior Court’s conclusion that the

Commonwealth complied with Section 3755 regardless of whether the hospital had

extracted Jones-Williams’ blood without being asked to do so by law enforcement.

Commonwealth v. Jones-Williams, 237 A.3d 528, 536 n.13 (Pa. Super. 2020) (citing

Commonwealth v. Seibert, 799 A.2d 54, 64 (Pa. Super. 2002) (explaining that an “officer

is entitled to the release of [chemical] test results” if he “determines there is probable

cause to believe a person operated a motor vehicle under the influence . . . and requests

that hospital personnel withdraw blood” even though “medical staff previously drew the

blood and a request by the police . . . came after the blood was drawn”)); see also

Commonwealth v. Hipp, 551 A.2d 1086, 1091 (Pa. Super. 1988) (en banc) (holding that

a police officer had probable cause under Section 1547(a) to request a blood draw, and

that hospital personnel complied with Section 3755(a) when they volunteered the results

of a blood test that had been performed for medical purposes); accord Commonwealth v.

Barton, 690 A.2d 293, 298 (Pa. Super. 1997).

B.

With all of these considerations in mind, it is plain to me from this record that the

investigators complied with the bare requirements of Section 3755, and that the

[J-41-2022] [MO: Mundy, J.] - 19
Commonwealth has, at all stages of this case, proceeded under the belief that the Vehicle

Code’s bipartite implied-consent scheme provides an independent basis for excusing the

investigators’ failure to obtain a search warrant for the results of Jones-Williams’ blood

test, separate and apart from any claim of exigency.

That the “the trial court only provided a post hoc assessment of Section 3755 in its

Rule 1925(a) opinion, long after the suppression motion had been denied,” Majority Op.

at 17, is another irrelevancy that the Majority offers up to avoid addressing the statute’s

constitutionality. The Commonwealth invoked both implied consent and exigency as

alternative grounds for defeating Jones-Williams’ suppression motion. The trial court

chose to address only the latter. I would not fault that court for taking that approach in

the interest of judicial economy and to avoid the thornier constitutional question—though,

as the court candidly admitted later, it erroneously excused the warrantless seizure on

exigency grounds (a concession with which this Court agrees today), so its self-restraint

was for naught. Nor would I punish the Commonwealth for the trial court’s miscalculation

by declining to address the merits of its other preserved claim at this stage.

For the sake of completeness, I note the following relevant events. Jones-Williams

challenged the constitutionality of Section 1547 and Section 3755, both facially and as-

applied, in his pre-trial suppression motion. Omnibus Pre-Trial Motion, 10/26/2015,

¶¶ 25-54; Brief in Support of Omnibus Pre-Trial Motion, 1/29/2016, at 29-39. The

Commonwealth defended the constitutionality of that scheme from both avenues of

attack. Commonwealth’s Mem. of Law in Opposition to Defendant’s Omnibus Pretrial

Motion, 1/29/2016, at 24-27. Jones-Williams then supplemented his challenge to the

statutes’ constitutionality with more than twenty pages of additional argument. Supp. Br.

[J-41-2022] [MO: Mundy, J.] - 20
in Support of Omnibus Pre-Trial Motion, 2/29/2016, at 1-21. The Commonwealth

responded in kind. Commonwealth’s Supp. Mem. of Law in Opposition to Defendant’s

Omnibus Pretrial Motion, 4/20/2016. In its opinion rejecting Jones-Williams’ suppression

motion, the trial court summarized the preserved constitutional challenges to the implied-

consent scheme, but only addressed the merits of the exigency issue. Opinion, Bortner,

J., 4/27/2016, at 7-11.

Following his conviction, Jones-Williams sought post-sentence relief, which was

denied. He then appealed and filed a Rule 1925(b) statement reiterating his facial and

as-applied constitutional challenges to Section 3755, among other claims. Statement of

Matters Complained of on Appeal in Accordance with Pa.R.A.P. 1925(b), 10/5/2017, at

¶¶ 5.1-5.2. He supplemented that filing the next day to bring to the court’s attention our

per curiam Order in Commonwealth v. March, 172 A.3d 582 (Pa. 2017), issued just three

days earlier, in which we vacated a published Superior Court decision rejecting a

constitutional challenge to Section 1547 and remanded for reconsideration in light of

Myers.11 Supp. to Rule 1925(b) Statement, 10/6/2017. In its Rule 1925(a) opinion, the

trial court conceded that it had erred in finding exigent circumstances and it asked the

Superior Court to vacate Jones-Williams’ homicide-by-vehicle-while-DUI conviction while

affirming the remainder of his judgment of sentence. Opinion, Bortner, J., 4/13/2018,

at 12-13. As for the constitutional challenge to Section 3755, the court once again

summarized but failed to resolve the preserved facial challenge on its merits, id. at 13-

17; however, it rejected Jones-Williams’ as-applied challenge, concluding that the

11 The Superior Court was unable to reconsider that issue on remand in March
because the Commonwealth ultimately withdrew its appeal of the suppression court’s
grant of relief.

[J-41-2022] [MO: Mundy, J.] - 21
Commonwealth met its burden of proving that Sergeant Farren had probable cause to

request the blood draw “and that York Hospital operated under a perceived duty of

§ 3755.” Id. at 20. The Superior Court agreed with the trial court that exigency was

lacking and that the Commonwealth had complied with its statutory obligations in

obtaining Jones-Williams’ blood test results. Jones-Williams, 237 A.3d at 536-37, 544-

46. The panel then reached the preserved issue that Jones-Williams had pursued in vain

in the trial court and found Section 3755 facially unconstitutional. Id. at 542.

The Majority concludes that the Superior Court’s exigency analysis was enough to

resolve the case and that it never should have reached the constitutional issue. Majority

Op. at 17. The Majority is wrong. Because the Commonwealth possessed probable

cause to believe that Jones-Williams had driven under the influence of marijuana when

Sergeant Farren requested his blood test results pursuant to Section 3755, both parties

were, are, and always have been entitled to a merits resolution of Section 3755’s facial

constitutionality. That issue has been preserved and briefed at every stage of this case

going back to Jones-Williams’ October 26, 2015 omnibus pretrial motion. Exigency and

consent are constitutionally distinct exceptions to the warrant requirement. The resolution

of one does not ipso facto resolve the other. Likewise, the trial court’s resolution of the

as-applied challenge in the Commonwealth’s favor did not also resolve the facial

challenge. If the meticulous procedural survey presented above isn’t enough to

demonstrate that the constitutionality of Section 3755 is a live issue, I frankly don’t know

what would be. But if the Majority is unwilling to reach that purely legal question without

some initial consideration by the trial court, then, at the very least, the Commonwealth

deserves the opportunity to make its case to that court that Jones-Williams’ homicide-by-

[J-41-2022] [MO: Mundy, J.] - 22
vehicle-while-DUI conviction need not be vacated because consent constitutionally can

be implied by statute and was in this case. After all, were it not for the trial court’s

confessed error and repeated sidestepping of the preserved facial constitutional question,

we may have avoided this impasse altogether.

Because the constitutionality of these procedures is squarely before us, I would

resolve that question now in unmistakable terms: For all the reasons expressed by the

Myers plurality, statutorily implied consent cannot serve as an independent exception to

the warrant requirement, and any criminal statutory scheme purporting to authorize

searches or seizures upon that basis runs afoul of both state and federal constitutional

protections. See Myers, 164 A.3d at 1172-81.

To be sure, neither this Court nor the United States Supreme Court ever has held

that statutorily implied consent justifies a warrantless search or seizure that otherwise

would violate the United States or Pennsylvania Constitutions. Although the Supreme

Court in Birchfield v. North Dakota, 579 U.S. 438 (2016), noted that its “prior opinions

have referred approvingly to the general concept of implied-consent laws that impose civil

penalties and evidentiary consequences on motorists who refuse to comply”—and

admonished that nothing it said in that case “should be read to cast doubt on them,” id.

at 476-77 (citations omitted; emphasis added)—the Court cautioned that “[t]here must be

a limit to the consequences to which motorists may be deemed to have consented by

virtue of a decision to drive on public roads.” Id. at 477. Among the things that exceed

those limits are “a State[’s] . . . insist[ence] upon an intrusive blood test,” and the

“impos[ition] of criminal penalties on the refusal to submit to such a test.” Id.; see also

Bell, 211 A.3d at 792 (Wecht, J., dissenting) (“[E]very time that the Birchfield Court spoke

[J-41-2022] [MO: Mundy, J.] - 23
of ‘implied consent,’ it referred to these statutory consequences of refusal, not to an

exception to the Fourth Amendment’s warrant requirement. In this regard, statutorily

implied consent provisions should be regarded as mandates that a motorist cooperate

with a valid search, not as mechanisms to allow circumvention of the requirements of the

Fourth Amendment.”) (emphasis in original).

Perhaps signaling its growing discomfort with more expansive notions of implied

consent than those referred to favorably in Birchfield, the Mitchell plurality intimated that

there is less to the Court’s past references of approval regarding “the general concept of

implied-consent laws” than meets the eye. See Mitchell, 139 S.Ct. at 2552 (plurality)

(quoting Birchfield, 579 U.S. at 476). It explained that the Court’s previous “decisions

have not rested on the idea that these [implied-consent] laws do what their popular name

might seem to suggest—that is, create actual consent to all the searches they authorize.”

Id. at 2551 (emphasis added). Rather, those decisions were based upon “the precedent

regarding the specific constitutional claims in each case, while keeping in mind the wider

regulatory scheme developed over the years to combat drunk driving. That scheme is

centered on legally specified BAC limits for drivers—limits enforced by the BAC tests

promoted by implied-consent laws.” Id.

The Mitchell plurality then went out of its way to avoid discussing the question that

it had accepted for review, namely, whether a provision of Wisconsin’s DUI law that

expressly “deemed” unconscious motorists to have consented to warrantless blood

testing complied with the requirements of the Fourth Amendment. Instead, in resolving

the case, the plurality focused exclusively upon exigent circumstances, even though

Wisconsin prosecutors hadn’t relied upon that exception, the state courts hadn’t

[J-41-2022] [MO: Mundy, J.] - 24
addressed it, and the parties hadn’t briefed its applicability before the Court. See Mitchell,

139 S.Ct. at 2551 (Gorsuch, J., dissenting) (“We took this case to decide whether

Wisconsin drivers impliedly consent to blood and alcohol tests thanks to a state statute.

That law says that anyone driving in Wisconsin agrees—by the very act of driving—to

testing under certain circumstances. But the Court today declines to answer the question

presented. Instead, it upholds Wisconsin’s law on an entirely different ground—citing the

exigent circumstances doctrine,” which “neither the parties nor the courts below

discussed.”). As far as implied consent’s continuing viability is concerned, I find the

Mitchell plurality’s bait-and-switch in this regard to be telling.

Oddly enough, the Commonwealth suggests here that Mitchell actually supports

the constitutionality of Section 3755 “as an implied-consent statute that codifies the

exigent circumstances test.” Commonwealth’s Br. at 44; see also id. at 46

(“Section 3755(a) is ‘codified exigency’ and as such is facially constitutional.”). The

Wisconsin Supreme Court rejected this very argument just last year in State v. Prado,

960 N.W.2d 869 (Wis. 2021). In that case, the Court resolved the issue that the Mitchell

Court had ducked, holding that the Wisconsin DUI statute’s “incapacitated driver provision

cannot be constitutionally enforced under any circumstance and is unconstitutional

beyond a reasonable doubt.” Id. at 878. Addressing the unstable legal foundation upon

which the statute’s implied-consent provision stood, the Prado Court offered a compelling

rationale equally applicable to our present circumstances. It reasoned:

The State’s essential argument in this case boils down to an assertion that
the incapacitated driver provision is constitutional because exigent
circumstances may have been present. This argument conflates the
consent and exigent circumstances exceptions to the warrant requirement.
The incapacitated driver provision of the implied consent statute is not
focused on exigent circumstances. As the moniker “implied consent”

[J-41-2022] [MO: Mundy, J.] - 25
 connotes, the statute addresses consent, which is an exception to the
warrant requirement separate and apart from exigent circumstances.
Thus, the determination of whether there were exigent circumstances does
not involve any application of the incapacitated driver provision. In other
words, if the State relies on exigent circumstances to justify a search, it is
not relying on the statute. Searches of unconscious drivers may almost
always be permissible as the State contends, but then they are almost
always permissible under the exigent circumstances exception to the
warrant requirement pursuant to the Mitchell plurality, not under the statute.
In the context of warrantless blood draws, consent “deemed” by statute is
not the same as actual consent, and in the case of an incapacitated driver
the former is incompatible with the Fourth Amendment. Generally, in
determining whether constitutionally sufficient consent is present, a court
will review whether consent was given in fact by words, gestures, or
conduct. This inquiry is fundamentally at odds with the concept of “deemed”
consent in the case of an incapacitated driver because an unconscious
person can exhibit no words, gestures, or conduct to manifest consent.
Under the incapacitated driver provision, we ask “whether the driver drove
his car” and nothing more. The statute thus reduces a multifaceted
constitutional inquiry to a single question in a manner inconsistent with this
court’s precedent regarding what is constitutionally required to establish
consent.
The constitution requires actual consent, not “deemed” consent. Indeed,
consent for purposes of a Fourth Amendment search must be “unequivocal
and specific.” Consent that is “deemed” by the legislature through the
incapacitated driver provision is neither of these things. It cannot be
unequivocal because an incapacitated person can evince no words,
gestures, or conduct to demonstrate such an intent, and it is generalized,
not specific.
Further, a person has a constitutional right to refuse a search absent a
warrant or an applicable exception to the warrant requirement. The
incapacitated driver provision does not even afford a driver the opportunity
to exercise the right to refuse such a search. Under the statute, the
constitutional right to refuse a warrantless search is transformed into simply
a matter of legislative grace. Such a transformation is incompatible with the
Fourth Amendment.
Id. at 879-80 (citations, footnote, and paragraph designations omitted). Added to the bevy

of decisions from other state courts of last resort cited by the Myers plurality, implied

[J-41-2022] [MO: Mundy, J.] - 26
consent’s prospects as an independent exception to the warrant requirement simply are

untenable.

As the Prado Court cogently explained, “[a] statutory per se exception is

antithetical to the case by case determination McNeely mandates.” Id. at 880. Consent

and exigency are two distinct exceptions to the warrant requirement, and there is no

authority for the proposition that Pennsylvania’s implied-consent statutory scheme

codified the exigent circumstances exception. If the Commonwealth wishes to rely upon

the statute to justify its warrantless seizure of Jones-Williams’ blood-test results, then it is

relying upon consent, not exigency. Nor is it relevant, as the Commonwealth suggests in

contrasting this case with Myers, that Jones-Williams wasn’t formally under arrest when

his blood was drawn. Commonwealth’s Br. at 47. It cannot be the case that police officers

can do an end-run around the statutory right-of-refusal simply by declining to arrest a

suspect before asking hospital staff to draw and test his blood, and then attempt to justify

the warrantless seizure and search on the grounds that the suspect was not under arrest

at the time his blood was drawn and tested. In grasping at whatever argument it can in

hopes of saving the statute, the Commonwealth protests too much.

That said, Myers did not go as far as the Defender Association amici suggest it did

either. See Phila. Defender Assoc. & Pa. Assoc. of Criminal Defense Lawyers’ Br. as

Amici Curiae at 19 (asserting that “Myers correctly decided the constitutional issue,

rejecting an implied consent statute as a basis for sustaining a warrantless search”). It is

true that five Justices in Myers agreed that Section 1547 was unconstitutional, but the two

camps relied upon very different rationales. While the plurality would have held that the

statute’s implied-consent provision did not constitute an independent exception to the

[J-41-2022] [MO: Mundy, J.] - 27
warrant requirement and, in the absence of such an exception, that the warrantless blood-

draw performed upon Myers without his actual consent was unconstitutional, Chief

Justice Saylor and then-Justice, now Chief Justice, Baer found the statute facially

unconstitutional because the “consent” that it “implied” was predicated upon enhanced

penalties for refusal, which Birchfield expressly prohibited. See Bell, 211 A.3d at 773

(acknowledging that a majority of the Myers Court “also held, albeit without complete

agreement as to reasoning, that a warrantless blood draw from an unconscious DUI

suspect violates the Fourth Amendment”) (citing Myers, 164 A.3d at 1173-82 (plurality);

id. at 1183-84 (Saylor, C.J., concurring)).

Unlike Section 1547, however, Section 3755 neither expressly contemplates a

right to refuse a blood draw or a toxicology test, nor does it contain a penalty

enhancement. Nor does it merely authorize warrantless blood draws, as Section 1547

does. Rather, Section 3755 mandates that an “emergency room physician or his

designee shall promptly take blood samples . . . and transmit them . . . for testing” in every

case where “the person who drove, operated or was in actual physical control of the

movement of any” motor vehicle involved in an accident presents in the emergency room

for medical treatment for injuries resulting from that accident—so long as “probable cause

exists to believe” that Pennsylvania’s DUI laws were violated. 75 Pa.C.S. § 3755(a)

(emphasis added). In putting the onus on hospital personnel to draw a DUI suspect’s

blood, transfer it for testing, and release the test results to law enforcement upon

request—no matter the circumstances and without regard to even a conscious patient’s

objections—Section 3755 is a different beast entirely.

[J-41-2022] [MO: Mundy, J.] - 28
 Among the statute’s other problematic features—and notwithstanding the Shaw

Court’s supposition on this point, see Shaw, 770 A.2d at 298 n.3; n. 10, supra—it is not

clear who is responsible for making the probable cause determination that triggers the

hospital’s obligations under the statute. Nor is there any mechanism for an independent

assessment of that determination by a neutral and detached magistrate, as there would

be if a warrant had been sought. Additionally, the statute fails meaningfully to cabin the

authority of “emergency room physician[s] or [their] designee[s]” to subject an individual

to a warrantless blood draw against his will—whether or not at the direction of law

enforcement—or to disclose the results of a blood test to “governmental officials or

agencies” who lack a warrant for the same. 75 Pa.C.S. § 3755(a). As far as I am aware,

medical and nursing schools generally do not instruct their students on the finer points of

search-and-seizure law.

Nonetheless, given Section 3755’s “abstract” probable-cause trigger, if the

requisite cause “exists to believe” a DUI offense “was involved,” someone in that

emergency room must “promptly” subject any driver who requires emergency medical

treatment as a result of a motor vehicle accident to a blood draw and submit that blood

sample to the Department of Health or a Department-approved clinical lab for chemical

testing, even if such a test is not medically necessary. Id. And if the person(s) who drove

the vehicle(s) involved in the accident “cannot be determined,” then “all injured occupants

who were capable of” driving must be tested, id., effectively extending the Vehicle Code’s

implied-consent regime to unwitting passengers as well as drivers. While the extent to

which emergency room personnel across the Commonwealth are undertaking these sorts

of probable cause determinations of their own volition remains unclear, the sheer breadth

[J-41-2022] [MO: Mundy, J.] - 29
of the statute’s potential reach is staggering. As the late Justice Scalia might have

quipped, “I doubt that the proud men who wrote the charter of our liberties would have

been so eager to open their” veins “for royal inspection.” Maryland v. King, 569 U.S. 435,

482 (2013) (Scalia, J., dissenting).

But Section 3755’s breathtaking novelty should make no difference in how this

Court ultimately resolves the question of its constitutionality. As noted above, this Court

has made clear that Section 3755 and Section 1547 operate hand in glove. In other

words, with regard to the statutory scheme’s implied-consent function, as goes one

provision, so goes the other. Because neither provision requires actual, knowing, and

voluntary consent before law enforcement agents may obtain a blood draw or chemical

test results, any blood sample drawn, tested, or released to agents of law enforcement at

their request and without a warrant under the statutes’ auspices is patently unreasonable.

As such, each of these statutes is unconstitutional on its face. See Myers, 164 A.3d

at 1180 (plurality) (“Like any other search premised upon the subject’s consent, a

chemical test conducted under the implied consent statute is exempt from the warrant

requirement only if consent is given voluntarily under the totality of the circumstances.”).

Pennsylvanians have a reasonable expectation of privacy in their medical records,

one that protects those records from warrantless governmental inspection. That right is

safeguarded not only by the Fourth Amendment to the United States Constitution but also

by Article I, Section 8 of the Pennsylvania Constitution. Riedel, 651 A.2d at 138; Shaw,

770 A.2d at 299. To be considered reasonable, any search or seizure of those records

must be supported by probable cause and either accompanied by a warrant or the

circumstances must be such that the search falls within an exception to the warrant

[J-41-2022] [MO: Mundy, J.] - 30
requirement. Bell, 211 A.3d at 769-70. One such exception is proof that the individual

whose person or property is to be searched or seized by law enforcement voluntarily has

acceded to those requests. Section 3755 is part and parcel of a statutory scheme that

deems drivers to have consented to both chemical testing and the disclosure of test

results to law enforcement simply by virtue of having driven on the Commonwealth’s

roads. But statutorily “implied consent” contravenes the time-honored constitutional

principles that protect individual liberty by ensuring any waiver of one’s rights is done

knowingly and voluntarily. It therefore cannot serve as an independent exception to state

or federal constitutional commands. Rather than address Section 3755’s apparent

deficiencies head-on, the Majority kicks the proverbial can a little further down the road

by opting instead to vacate the Superior Court’s holding, which turned upon the views

expressed by the Myers plurality. Because I would reach the principal constitutional

question before us and resolve it once and for all by affirming the lower court’s eminently

correct determination, I respectfully dissent.

Justice Donohue and Justice Dougherty join this concurring and dissenting

opinion.

[J-41-2022] [MO: Mundy, J.] - 31