The United States Supreme Court’s recent decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013), fundamentally altered the manner in which law enforcement officers can take blood from a suspected drunk driver. The decision called into question the implied consent laws, such as the one that is codified in Pennsylvania at 75 Pa.C.S. § 1547(a)(1), that operate as a per se exception to the constitutional warrant requirement.
As a result, post-McNeely blood draws without a warrant may only occur upon the knowing and intelligent consent of the motorist or with exigent circumstances. Although many law enforcement agencies were quick to improve their training on how to get a warrant, other agencies have been slow to make any changes.
Because law enforcement officers are still not securing warrants in many of these DUI cases, criminal defense attorneys are busy filing and litigating motions to suppress the blood evidence.
Without consent, the criminal defense attorney will argue that the blood sample the Commonwealth tested to determine the blood alcohol concentration (BAC) was taken without a warrant in violation of the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.
Commonwealth v. Myers, 118 A.3d 1122 (Pa.Super.2015)
The Superior Court of Pennsylvania recently considered the issue in Commonwealth v. Myers, 118 A.3d 1122 (Pa.Super.2015), appeal granted, 131 A.3d 480 (Pa.2016).
First, the court recognized that the administration of a blood test is clearly a search under the Fourth Amendment. Second, the court recognized that a search conducted without a warrant is constitutionally impermissible unless an established exception applies. One exception involves actual consent when the officer asks for a voluntary blood draw and the subject gives free and voluntary consent.
In these cases, the central issue is whether the consent was really free and voluntary. The court will look at the constitutional validity of the citizen/police encounter giving rise to the consent and the voluntariness of the consent. Where the underlying encounter is lawful, the voluntariness of the consent becomes the exclusive focus of the court.
The Unconscious DUI Suspect
The issue becomes more complicated when the police haven’t obtained consent either because the suspect affirmatively refuses or because the suspect is unconscious.
In Commonwealth v. Myers, 118 A.3d 1122, the defendant was arrested on suspicion of DUI and transported to the hospital. The police officer who responded to the hospital observed the defendant unconscious and unresponsive. Id. at 1124. After attempts to have Mr. Myers respond to the officer were unsuccessful, the officer read the “standard informed consent warnings” to the unconscious man. Id. The defendant never signed consent warnings, and no warrant for the defendant’s blood was secured. Id. Nevertheless, the police officer obtained a warrantless blood sample from the defendant. Id.
The defendant sought suppression in the Municipal Court based on the warrantless draw of his blood. Id. The Municipal Court granted the suppression motion with respect to the blood because it concluded the defendant was unconscious and could not consent. In essence, the court found “it was not unreasonable” for the Commonwealth to obtain a warrant under the circumstances. Id. at 1124–25.
The Philadelphia Court of Common Pleas affirmed the ruling, and the Commonwealth appealed to the Superior Court of Pennsylvania. Id. at 1125. The Superior Court acknowledged that defendant’s case was unique because the defendant did not have an opportunity to refuse the blood draw:
Pennsylvania’s implied consent statute provides a driver under arrest with the statutory right of refusal to blood testing, see 75 Pa.C.S. § 1547(b)(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….”).
Section 1547 provides for chemical testing when consent is not withdrawn pursuant to subsection (b)(1), and precludes a blood draw when consent is withdrawn and imposes penalties. Here, [the defendant] was arrested for DUI and transported to the hospital, but was not given the applicable warnings until a later time, at which point he could not claim the statutory protection of Section 1547(b)(1).
Id. at 1129 (footnote omitted). On appeal, the Superior Court affirmed the suppression court’s determination concluding the defendant could not refuse testing or consent to the blood test and exigent circumstances did not excuse the warrantless blood draw.
It is important to note that in Myers, 75 Pa.C.S.A. § 3755 (the “reports by emergency room personnel” law) was not at issue in the case. Id. at 1129. Section 3755 did not even apply to that case because Mr. Myers was not involved in a motor vehicle accident and Mr. Myers did not receive medical treatment “as a result of” any motor vehicle accident. Id. at 1129.
In that case, Mr. Myers was already under arrest at the time the police ordered the hospital to perform the warrantless blood draw. Myers, 118 A.3d at 1123–1124. As the court explained in Myers, since he was under arrest at the time, Mr. Myers possessed an explicit, statutory right to refuse chemical testing under Section 1547(b) — which the police denied him by waiting until he was rendered unconscious to draw his blood. See 75 Pa.C.S.A. § 1547(b) (providing a statutory right to refuse chemical testing to “any person placed under arrest for a violation of [75 Pa.C.S.A. § ] 3802” (“[d]riving under the influence of alcohol or controlled substance”)); Myers, 118 A.3d at 1129–1130.
The Supreme Court of Pennsylvania has granted an appeal so more guidance will soon be provided.
Is Pennsylvania’s Implied Consent Law Constitutional?
The next issues the courts will address is whether two “implied consent” statutes in Pennsylvania, Section 1547 and 3755, work together as a valid exception to the warrant requirement to allow for a blood draw taken without actual consent. These statutes have traditionally been used by officers to grant them the statutory right to have the hospital take the driver’s blood and receive the blood alcohol test results without a warrant.
The Superior Court of Pennsylvania in Commonwelth v. Defer, 1119 MDA 2014, 2016 WL 1587016 (Pa. Super. Ct. 2016) recently refused to address the merits of the claims that Missouri v. McNeely, 133 S.Ct. 1552 (2013), renders 75 Pa.C.S.A. § 1547 and/or § 3755 unconstitutional. This issue is discussed in another blog article entitled “Implied Consent as an Exception to the Warrant Requirement in DUI Blood Test Cases in Pennsylvania.”
Michael Skinner is an experienced criminal defense attorney at Skinner Law Firm who represents clients in DUI cases involving a blood test including serious felony DUI cases involving death or serious bodily injury, throughout West Chester in Chester County and Media in Delaware County, PA.
By Michael Skinner |
02 Aug, 2020