Pennsylvania’s DUI Statute and Warrantless Blood Draws On An Unconscious Person

Since Birchfield v. N. Dakota, 136 S.Ct. 2160, 2173, 2185, 195 L. Ed. 2d 560 (2016), the Pennsylvania Supreme court has swiftly moved to invigorate and buttress Pennsylvania civil liberties and motor vehicle drivers’ privacy rights.  On July 19, 2017, in Commonwealth v. Myers, 2017 Pa. LEXIS 1689, 2017 WL 3045867, the Court upheld lower court rulings granting suppression of blood evidence seized from a drunk, unconscious motorist.

The facts are simple. Myers was visibly drunk, operated the motor vehicle, was arrested by one police officer, and taken to the hospital for a blood draw. A second officer arrived at the hospital, did not observe Myers or ask his consent to take his blood before hospital staff administered medication rendering Myers unconscious.  Unable to respond to his commands, the 2nd police officer instructed the nurse to draw Myers’ blood for testing.  The police did not secure a warrant to draw or search drunk, unconscious Myers’ blood.

The Court granted the appeal to consider the lawfulness of a warrantless blood draw conducted upon a motorist who, having been arrested for DUI, had then been rendered unconscious by medical personnel before a police officer provided O’Connell warnings and before the officer requested the motorist’s submission to a chemical test. The Philadelphia Municipal Court, the Court of Common Pleas, and Superior Court all held that a blood draw conducted under these circumstances is impermissible, and that the results of the derivative blood test are accordingly inadmissible at trial. Because the seizure of Myers‘ blood violated Pennsylvania’s implied consent statute, 75 Pa.C.S. § 1547, and because no other circumstances justified the failure to obtain a search warrant, the Court affirmed all of the lower courts’ decisions suppressing the blood evidence.

At the intermediate appellate level, in Commonwealth v. Myers, 2015 PA Super 140, 118 A.3d 1122 (Pa. Super. 2015), the court stated that Subsection 1547(b)(1) “provides a driver under arrest with [a] statutory right of refusal to blood testing.” (quoting 75 Pa.C.S. § 1547(b)(1)).  Because Myers was unconscious at the time that Officer Domenic requested the blood draw, the court observed that Myers “could not claim the statutory protection” of Subsection 1547(b)(1). 

Superior Court also relies upon Missouri v. McNeely,     U.S.    , 133 S.Ct. 1552, 185 L. Ed. 2d 696 (2013), holding that, “because police did not act pursuant to the implied consent law until 4:45 p.m., after Myers had been rendered unconscious by an intervening cause that occurred subsequent to his DUI arrest and transport to the hospital, … McNeely controls here.”  Like the trial court, Superior Court determines the Commonwealth failed to demonstrate the impracticability of obtaining a warrant prior to the blood draw. Therefore, the panel held that the trial court correctly affirmed the Municipal Court’s order granting Myers‘ motion to suppress.

On appeal to the Supreme Court, the Commonwealth argues that the implied consent statute establishes a valid exception to the warrant requirement of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, and that the statutory right to refuse chemical testing does not apply to unconscious arrestees. The Commonwealth’s central premise is that, under 75 Pa.C.S. § 1547(a), “any individual who exercises the privilege of driving in Pennsylvania has consented to a blood draw.” 

Although a conscious individual may refuse to submit to a chemical test, the Commonwealth asserts that “[t]here is no law in Pennsylvania that treats an unconscious defendant as having revoked his already-provided consent.”  The Commonwealth faults the Superior Court for “distinguish[ing] between conscious and unconscious drivers without any analysis.” (emphasis omitted). In the Commonwealth’s view, an arrestee’s state of consciousness matters only to the extent that “[u]nconsciousness . . . prevents the suspect from refusing the blood draw,” but it “does not somehow negate his existing consent.”  The Supreme Court categorically rejects this argument.

 

A review of the DUI informed consent issue is a good place to start.  Consistent with 75 Pa. C.S.A. §1547(c) the Pennsylvania’s Motor Vehicle code imposes evidentiary admissibility standards for blood tests consensually drawn without a warrant. Pennsylvania’s Motor Vehicle code addressing driving under the influence (“DUI”) of alcohol or controlled substances, 75 Pa. C.S.A. § 3802 (b)(c) & (d) each contain as an essential element of the criminal offense a defendant’s blood alcohol concentration level.

The grading provisions of the Pennsylvania Motor Vehicle code, 75 Pa. C.S.A. §3803(d), as they relate to DUI charges, identify in subsections 1 through 4 that any individual who is under investigation for violating 75 Pa.C.S.A. § 3802, et seq., (accusing an individual of operating a motor vehicle under the influence of drugs or alcohol such that they are incapable of safely driving) and refuses to voluntary submit to a warrant-less blood test, is to receive enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.

Pennsylvania’s implied consent law requires motorist who drive on our roads to automatically consent to a blood draw if under police investigation for alleged DUI.  75 Pa.C.S. § 1547(b)(2) (prescribing the “duty of the police officer” to inform a DUI arrestee of the consequences of refusal); Pa. Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873, 877 (Pa. 1989) (“The law has always required that the police must tell the arrestee of the consequences of a refusal to take [a chemical] test so that he can make a knowing and conscious choice.”)  If the operator refuses, no blood draw can take place.  Now after, Birchfield, the motorist can not be criminally penalized for refusing the blood draw.

By operation of the implied consent statute, once a police officer establishes reasonable grounds to suspect that a motorist has committed a DUI offense, that motorist “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.” 75 Pa.C.S. § 1547(a). Notwithstanding this provision, Subsection 1547(b)(1) confers upon all individuals under arrest for DUI an explicit statutory right to refuse chemical testing, the invocation of which triggers specified consequences. See 75 Pa.C.S. § 1547(b)(1) (“If any person placed under arrest for [DUI] is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted”); Eisenhart, 611 A.2d at 683 (“The statute grants an explicit right to a driver who is under arrest for [DUI] to refuse to consent to chemical testing.”).

The Court rules that under this statutory scheme, a motorist placed under arrest for DUI has a critical decision to make. The arrestee may submit to a chemical test and provide the police with evidence that may be used in a subsequent criminal prosecution, or the arrestee may invoke the statutory right to refuse testing, which: (i) results in a mandatory driver’s license suspension under 75 Pa.C.S. § 1547(b)(1); (ii) renders the fact of refusal admissible as evidence in a subsequent DUI prosecution pursuant to 75 Pa.C.S. § 1547(e); and (iii) authorizes heightened criminal penalties under 75 Pa.C.S. § 3804(c) if the arrestee later is convicted of DUI.

Previously, in very certain terms, Pennsylvania’s Supreme Court has held that, in requesting a chemical test, the police officer must inform the arrestee of the consequences of refusal and notify the arrestee that there is no right to consult with an attorney before making a decision. See O’Connell, 555 A.2d at 877-78.12Link to the text of the note “An arrestee is entitled to this information so that his choice to take a [chemical] test can be knowing and conscious.” Id. at 878. The choice belongs to the arrestee, not the police officer.

In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances. The standard for measuring the scope of a person’s consent is based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent. Such evaluation includes an objective examination of the maturity, sophistication and mental or emotional state of the defendant. Gauging the scope of a defendant’s consent is an inherent and necessary part of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the product of coercion, deceit, or misrepresentation.  Commonwealth v. Smith, 621 Pa. 218, 77 A.3d 562, 573 (Pa. 2013).

The case of Commonwealth v. Evans, 2016 PA Super 293  (December 20, 2016), is the first major Pennsylvania Appellate Court decision discussing Pennsylvania’s DUI statute, the Implied Consent Law (“O’Connell Warnings”), and the prosecutor’s burden of proof at the suppression hearing.  Evans holds that a defendant does not have to prove they gave consent only based upon the threat of a more severe criminal penalty (jail and further license suspension).  Rather, the statute itself establishes this burden and the Prosecutor must rebut that legal presumption.  Because there is no ability to rebut a presumption of illegitimate consent when threatened with enhanced jail penalties, all motions to suppress must be granted.

Myers takes Evans one step further, finding that “Subsection 1547(b)(1) does not distinguish in any way between conscious and unconscious individuals, but, rather, provides the statutory right of refusal to “any person placed under arrest” for DUI. 75 Pa.C.S. § 1547(b)(1) (emphasis added). By its plain meaning, “any person” necessarily includes an unconscious person. Accordingly, we hold that Myers had an absolute right to refuse chemical testing pursuant to the implied consent statute, that his unconscious state prevented him from making a knowing and conscious choice as to whether to exercise that right, and that the implied consent statute does not authorize a blood test conducted under such circumstances.”

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