Commonwealth v. Funk

HOFFMAN, Judge,

concurring:

The Majority affirms appellant’s conviction for driving while under the influence of intoxicating liquor.1 In particular, the Majority reasons that § 624.1(f) of the Vehicle Code2 permits the performance of a blood test whenever the circumstances indicate that such a test is a reasonable alternative to a breathalyzer. I disagree: § 624.1(f) only allows the performance of a blood test as an alternative to a chemical breath test when the suspect “is physically unable to supply enough breath to complete a chemical test.” However, because I believe that the Commonwealth satisfied this statutory prerequisite in the instant case, I concur in the Majority’s result.

*243Subsections 624.1(a) and (f) of the Vehicle Code, supra, set forth the requirements for determining when a chemical breath test or a blood test may be taken for the purpose of determining a person’s sobriety. These subsections provide:

“(a) Any person who operates a motor vehicle or tractor in this Commonwealth, shall be deemed to have given his consent to a chemical test of his breath, for the purpose of determining the alcoholic content of his blood: Provided, That the test is administered by qualified personnel and with equipment approved by the secretary at the direction of a police officer having reasonable grounds to believe the person to have been driving while under the influence of intoxicating liquor. Qualified personnel means a physician or a police officer who has received training in the use of such equipment in a training program approved by the secretary. If any person is placed under arrest and charged with the operation of a motor vehicle or tractor while under the influence of intoxicating liquor and is thereafter requested to submit to a chemical test and refuses to do so, the test shall not be given but the secretary may suspend his license or permit to operate a motor vehicle or tractor with or without a hearing. Any person whose license or permit to operate a motor vehicle or tractor is suspended under the provisions of this act shall have the same right of appeal as provided for in cases of suspension for other reasons.
“(f) If for any reason a person is physically unable to supply enough breath to complete a chemical test a physician or a technician acting under his direction may withdraw blood for the purpose of determining the alcoholic content therein. Consent is hereby given by such persons. The chemical analysis of the blood taken under these circumstances shall be admissible in evidence.” Section 624.1(f) explicitly predicates the extraction of blood from a person who does not expressly consent to the test upon a showing that he or she “is physically unable to supply enough breath to complete a chemical test.” The Statutory Construction *244Act3 instructs us that: “[w]hen the words of a law are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Despite § 624.1(f)’s clarity, the Majority improperly ignores its wording and, without explication, substitutes a “reasonableness” analysis for determining when a blood test, instead of a breathalyzer, may be taken.

Even if we purport to examine the spirit behind the instant legislative enactment, I believe that the Majority’s reading of § 624.1(f) does violence to a carefully structured legislative scheme. Our Court has identified competing interests which are involved when the state orders a chemical test to determine a person’s sobriety. On the one hand, the Commonwealth has an interest in attempting to secure evanescent and probative evidence of intoxication; on the other hand, an individual has an abiding interest in the integrity and sanctity of his person which deserves even more protection than that afforded to his papers and effects. See Commonwealth v. Quarles, 229 Pa.Super. 363, 381, 324 A.2d 452, 462 (1974).4 Furthermore, as the Majority concedes, a blood test represents more of an intrusion than a chemical breath test. (Slip Opinion at 238). See also Com*245monwealth v. Quarles, supra, 229 Pa.Super. at 387, 324 A.2d at 465. Our state legislature, responsive to the need to balance a person’s interest in the sanctity of his body and the Commonwealth’s interest in securing evidence of intoxication, has articulated a rational and precise series of steps for determining when the state may extract blood from a person without his express, voluntary, and intelligent consent.5 Under § 624.1(a) of the Vehicle Code, if a police officer has reasonable grounds6 to believe that a person has been driving while under the influence of alcohol, he may request a chemical test of the suspect’s breath. If the suspect refuses to co-operate with such a test, the test shall not be administered. However, as a penalty for refusal, § 624.1(a) authorizes the suspension of the suspect’s driving license, and § 624.1(h)7 permits the Commonwealth to produce in future criminal prosecutions evidence of the suspect’s refusal to co-operate. Thus, if reasonable grounds for a test exist at trial, the Commonwealth is entitled to either the admission of the results of a breathalyzer test or the suspect’s refusal.

Section 624.1(f) constitutes the next link in the statutory scheme regulating the performance of chemical tests designed to detect evidence of intoxication. Under § 624.1(f), if the suspect is physically unable to complete a chemical breath test, a physician or technician may conduct a blood alcohol test. If the suspect is physically unable to complete a chemical breath test, but conscious enough to refuse to *246allow a blood test, the Commonwealth may introduce evidence of such refusal in subsequent criminal proceedings pursuant to § 624.1(h). As with § 624.1(a), the Commonwealth’s evidentiary interests are fully protected at all times: either a blood test is performed or evidence of a suspect’s refusal to allow such a test is admissible. Therefore, the legislature has carefully delineated a statutory scheme which provides for the minimal intrusion necessary into an individual’s person while protecting the Commonwealth’s evidentiary interests.

I believe that the Majority improperly alters the above legislative scheme and substitutes its own conception of the proper balance between an invasion of an individual’s person and the need for a blood test. Perhaps the Majority believes that this departure is necessary in order to guard an individual against an attempt to administer a breathalyzer test when that individual is in a medically parlous state. If this is the Majority’s reasoning, then it is unclear why the individual cannot be told the possible medical consequences of attempting to comply with a breathalyzer test and then asked to submit instead to a blood test. In effect, the Majority’s approach substitutes its retrospective appraisal of the situation for that of the individual suspect. Because § 624.1(f) expressly conditions the performance of a non-consensual blood test upon a showing of physical inability to supply enough breath to complete a chemical test and because we should strictly delimit unnecessary intrusions into the integrity of the individual’s person, I reject the Majority’s importation of a “reasonableness” test into § 624.1(f).

I must now determine whether the Commonwealth produced evidence which demonstrated that appellant was physically unable to supply enough breath to complete a chemical test pursuant to § 624.1(a). I believe the Commonwealth met this burden. While a consent form for a blood test was being prepared, appellant lapsed into unconsciousness and could not be aroused. An unconscious person cannot co-operate with a breathalyzer test which requires active participation. Indeed, this conclusion flows so logical*247ly that I do not understand why the Majority reaches the issue of whether a gloss of “reasonableness” may be imposed upon § 624.1(f)’s statutory prerequisite for a blood test without express consent. Accordingly, I concur in the Majority’s result.

. The Vehicle Code, Act of April 29, 1959, P.L. 58, § 1037; 75 P.S. § 1037. Since the date of the incident which triggered the instant case, the Vehicle Code has been thoroughly revised. For the present analogue to 75 P.S. § 1037, see The Vehicle Code, Act of June 17, 1976, P.L. 162, Act No. 81, eff. July 1, 1977; 75 Pa.C.S. § 3731. Hereinafter, all references to the Vehicle Code indicate The Act of April 29, 1959.

. The Vehicle Code, supra; 75 P.S. § 624.1(f). For the current version of this provision, see The Act of June 17, 1976, supra; 75 Pa.C.S. § 1547.

. The Statutory Construction Act, Act of May 28, 1937, P.L. 1019, art. IV, § 51; 46 P.S. § 551.

. Spaeth, J. authored Quarles. Then President Judge Watkins and Judges Cercone and Hoffman concurred in the result. Former President Judge Wright and former Judge Spaulding did not participate. In Quarles, the Majority, in considering a constitutional challenge to an implied consent basis for a blood test, canvassed the competing interest of the Commonwealth and driver. The Court concluded that: “[o]n balance, the driver’s interests outweigh those of the Commonwealth. The searches and seizures conducted under the implied consent law involve the person, not papers or effects. Intrusions that involve the person should be strictly limited and permissible only upon compliance with the strict standards of the Fourth Amendment. If we found implied consent here those standards would be totally irrelevant.” 229 Pa.Super. at 381, 324 A.2d at 462. (Emphasis supplied). See also Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966). (Although the Court held that a state may constitutionally extract blood from an individual’s person incident to a lawful arrest, the Court stressed that “the integrity of an individual’s person is a cherished value of our society”)

. Of course, a person may always knowingly and voluntarily waive any statutory as well as constitutional rights he may have to object to a particular blood test. See, e. g., Commonwealth v. Watkins, 236 Pa.Super. 397, 344 A.2d 678 (1975); Commonwealth v. Kelly, 235 Pa.Super. 299, 341 A.2d 141 (1975).

. In Commonwealth v. Quarles, supra, we held that the “reasonable grounds” referred to in § 624.1(a) must be construed as requiring probable cause to believe that the suspect had been driving while intoxicated. Without this interpretive gloss, our Court intimated that § 624.1 would be unconstitutional.

. Section 624.1(h) provides: “The refusal to submit to a chemical test may be admitted into evidence as a factor to be considered in determining guilt or innocence.”