ARE PENNSYLVANIA’S IMPLIED CONSENT LAWS UNCONSTITUTIONAL?
Actual consent is the most commonly used exception to the warrant requirement in DUI blood draw cases in Pennsylvania. In these cases, the officer simply says “will you consent to a voluntary blood draw for the purpose of determining its alcohol or controlled substance concentration?” If the person agrees, then the officer can have the blood drawn and tested without a warrant.
The next question becomes whether an individual’s “implied consent” in drunk-driving cases satisfies the “consent” exception to the warrant requirement? Or are Pennsylvania’s Implied Consent Statutes that purport to allow a pre-arrest, non-exigent, non-consensual blood draw unconstitutional?
Can “Implied Consent” be an Exception to the Warrant Requirement
The Superior Court of Pennsylvania skirted around that issue in Commonwealth v. Defer, 1119 MDA 2014, 2016 WL 1587016 (Pa. Super. Ct. 2016). The court refused to address the merits of the claims that Missouri v. McNeely, U.S., 133 S.Ct. 1552, renders 75 Pa.C.S.A. § 1547 and/or § 3755 unconstitutional. Instead, the court saved that issue for another day.
Until a ruling comes down to squarely address the issue, it is important to understand Pennsylvania’s Implied Consent scheme and how Missouri v. McNeely might impact blood testing in this state. In McNeely, a plurality of the Court recognized the fact that “all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to [blood alcohol content] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.” McNeely, 133 S.Ct. 1563.
The plurality recognized that these implied consent laws “impose significant consequences when a motorist withdraws consent” and are one of the “legal tools” that states use “to enforce their drunk-driving laws and to secure [blood alcohol content] evidence without undertaking warrantless nonconsensual blood draws.” Id. at 1566.
Provisions in Pennsylvania’s Implied Consent Statutes
Certainly administrative penalties can apply to a refusal. But can Pennsylvania’s implied consent laws be seen as an exception to the warrant requirement? Two statutes in Pennsylvania, Section 1547 and 3755, comprise a statutory scheme that implies the consent of a driver to undergo chemical blood testing under particular circumstances. See Commonwealth v. Riedel, 651 A.2d 135, 139–140 (Pa.1994).
The first of those statutes, 75 Pa.C.S.A. § 1547 is the Commonwealth’s implied consent statute. The second statute, 75 Pa.C.S.A. § 3755 is entitled “[r]eports by emergency room personnel.” The second statute grants officers the statutory right to both have the hospital take the driver’s blood and receive the blood alcohol test results without a warrant.
In Commonwealth v. Defer, 1119 MDA 2014, 2016 WL 1587016 (Pa. Super. Ct. 2016), the driver was involved in a motor vehicle accident, which required that Ms. Defer receive “medical treatment in an emergency room of a hospital.” That trip to the hospital triggered the application of 75 Pa.C.S.A. § 3755.
The court reasoned that because the person was not under arrest at the time the hospital took her blood, the person did not have the statutory right to refuse chemical testing under 75 Pa.C.S.A. § 1547(b). Also, the person can still say, “I refuse” if they are unconscious and understand the purpose for the blood draw. But because it occurs in the hospital, that distinction is likely lost on the patient.
The Prosecutor’s Best Argument
The prosecutor in the Defer case claimed the blood was taken pursuant to the “consent” exception to the warrant requirement. Specifically, the Commonwealth argued that, pursuant to 75 Pa.C.S.A. § 1547(a), since the driver of a vehicle was involved in a motor vehicle accident and since the officer had probable cause to believe that the driver was drunk or impaired, then the driver “impliedly consented” to the blood draw under the provisions of 75 Pa.C.S.A. § 1547(a).
The prosecutor also argued that 75 Pa.C.S.A. § 3755, the officer did not need to obtain a warrant or demonstrate exigent circumstances in order to instruct the hospital staff to perform the blood draw while the driver received treatment in the hospital for injuries sustained as a result of the motor vehicle accident. Instead, the prosecutor argued that consent to the search was implied under the circumstances because together, sections 1547 and 3755 comprise a statutory scheme that implies the consent of a driver to undergo chemical blood testing under particular circumstances.
Without a Valid Exception – a Warrant is Needed to Take Blood
The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures. A search conducted without a warrant is deemed to be unreasonable. Therefore, the search is constitutionally impermissible unless an established exception applies. Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa.2000).
The courts in Pennsylvania have mentioned several different types of exceptions that might apply to the warrant requirement in a blood draw case including:
- actual consent;
- implied consent;
- search incident to lawful arrest; and
- exigent circumstances may negate the necessity of obtaining a warrant before conducting a search.
Pennsylvania’s Implied Consent Law in Section 1547
Pennsylvania has an “implied consent” law under 75 Pa.C.S.A. § 1547 that reads:
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 … 3802 (relating to driving under influence of alcohol or controlled substance) …; or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
(ii) For a period of 18 months if any of the following apply: …
(2) It shall be the duty of the police officer to inform the person that:
(i) the person’s operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties).
(3) Any person whose operating privilege is suspended under the provisions of this section shall have the same right of appeal as provided for in cases of suspension for other reasons.
75 Pa.C.S.A. § 1547(a) and (b).
Section 3755 for Reports by Emergency Room Personnel
Another statute relevant in many DUI cases involving injury is 75 Pa.C.S.A. § 3755, entitled “[r]eports by emergency room personnel.” In pertinent part, 75 Pa.C.S.A. § 3755 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…. Test results shall be released upon request of the person tested, his attorney, his physician or governmental officials or agencies.
75 Pa.C.S.A. § 3755(a).
A panel of the Superior Court of Pennsylvania has previously explained:
…together, 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.
Commonwealth v. Seibert, 799 A.2d 54, 64 (Pa.Super.2002) (internal quotations and citations omitted).
The court in Commonwealth v. Defer, 1119 MDA 2014, 2016 WL 1587016 (Pa. Super. Ct. 2016) seems to suggest that “implied consent” without actual consent might be an exception to the warrant requirement for a blood test in a DUI case. Other courts in other states have soundly rejected this approach. Only time will tell the true impact of the Missouri v. McNeely, 133 S. Ct. 1552 (2013) in Pennsylvania.
Michael Skinner is a DUI defense attorney with offices in West Chester in Chester County and Media in Delaware County, PA. He represent clients after a breath test, blood test or refusal.