Warrentless Blood Test

Impact of Birchfield v. North Dakota in Pennsylvania

blood sample dui missouri v. mcneely

On June 23, 2016, the United States Supreme Court held in Birchfield v. North Dakota, 579 U.S. __ (2016), that the warrantless search and seizure of blood in DUI cases is unconstitutional. Thus, states could not criminalize DUI blood draw refusals. Across the country, many state statutes were struck down and unenforceable – but how does the Birchfield ruling affect Pennsylvania?

 

In Pennsylvania, DUI sentences are subject to tiers. Tiers are determined by many factors, including blood alcohol content (BAC), drug involvement, injuries and accidents, vehicle types, etc. The lowest tier, such as when no BAC is available, has the least serious penalties. On the other hand, the highest tier such as BAC of .16% or above, results in the harshest penalties.

 

Logically, if a person refused to provide a sample of his or her blood to test for alcohol intoxication, there would be no BAC available, and he or she would ordinarily be subject to the lowest tier.  For sentencing purposes, this usually means no license suspension, no jail time and a maximum of six months of probation for a first offense DUI.

 

Pennsylvania’s Implied Consent Law for Refusal to Submit to a Blood Test

 

Unlike North Dakota, Pennsylvania does not have a wholly separate statute that criminalizes DUI blood draw refusals. Pennsylvania utilizes an inadvertent method in order to punish those who refuse to provide a blood sample. Under Pennsylvania’s Implied Consent Law, 75 Pa.C.S. §1547, anyone who refuses to provide a blood sample and is found guilty of DUI is subject to the highest tier punishment.

 

Before Birchfield, and upon arrest for suspected DUI, drivers in Pennsylvania were read the O’Connell warnings that if failed to submit to chemical testing they were subject to enhanced criminal penalties –  including jail time. After the Birchfield decision, the Pennsylvania Department of Transportation (PennDOT) amended its form to remove the criminal enhancement penalties. However, the Pennsylvania Legislature has not amended the applicable statute.

 

As the law currently applies pursuant to Birchfield, police must now obtain consent from the suspected DUI driver for a blood sample or get a warrant. Considering drivers are still subject to an additional one year license suspension for refusing to provide a sample, as a civil penalty under the implied consent law, many drivers decide to consent. Even if consent is given, a driver’s consent must be voluntary and not based “on the pain of committing a criminal offense” as the Supreme Court noted.

 

Is 75 Pa.C.S. 1547 Constitutional After Birchfield?

 

The law remains undecided on the status and effect of 75 Pa.C.S. 1547’s criminal enhancement and legality, but the issue will certainly be considered by the Pennsylvania appellate courts sometime in the future.

 

Conclusion: Officers Will Be Getting More Warrants

If you have questions about a DUI case involving a refusal to submit to blood testing in West Chester in Chester County, or in Media in Delaware County, PA, then call an experienced criminal defense attorney at the Skinner Law Firm. We are experienced in filing and litigating motions to suppress blood test results in DUI related cases including felony DUI cases involving prior convictions, serious bodily injury or death. Call us today to discuss your case.

 

Read more about Forced Blood draw cases and the constitutionality of 75 Pa.C.S. 1547 in Pennsylvania.

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Forced Blood Test in a DUI Case in Pennsylvania

blood sample dui missouri v. mcneely

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.

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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:

  1. actual consent;
  2. implied consent;
  3. search incident to lawful arrest; and
  4. 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).

Conclusion

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. 

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