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 877-78.12 “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.”

Last Shore Ride of the Summer Season

 

Summer is almost gone.  Almost is a relative word.  Summer is gone.  Ok, I understand it better now.  This is why I am getting up at the same time, but the sun has yet to rise.  As seasons change, so should we.

My clients and friends alike know I email, text, and get much worthy work done before or at sunrise.  This is regardless of when such occurs.  When riding my bike at these early times, I learned – almost the hard way – to make sure the light leading the way – sun or man made – was bright enough.

The weekend before 2017 Labor Day found me up early with a  fellow early riser enjoying the sunrise from a concrete perch between Longport, Ocean City, and Somer’s Point, NJ.  The majesty that happens each day, clear or cloudy, brings awe and surprise.  Views and scenery are what get me up on the bike so early.

Sunrise over Longport, NJ

Golden Sky over Longport, NJ

Three clear, sunny, and increasingly windy mornings made each ride different.  Alternate and longer long routes also mixed it up.  Each day’s returning home trek brought me to the 9th Street Bridge entering Ocean City, NJ.  Gazing upon Ferris’ wheel, the mere slivers of land between the water ways, and 360 degree views takes my breadth away.

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As with life, the important things are the small ones.  Smell the coffee, take that break or picture, and soak up life.  Throughout these long 40-60 mile rides we always stop when coming across nature’s wonders. (Not for the road kill.  It smells so bad.)  Appreciate daily the bikers, joggers, landscapes, or just family that are around you.

See them. Understand them. Embrace them.  They are always orbiting your existence.  Don’t always change their trajectory to mirror yours. Let them continue on their course with you a follower of them.  The Boy Scout principle “Leave No Trace” comes to mind. Appreciate what is there, but do not disturb.  Evaluate, investigate, and gain knowledge.  But, leave it undisturbed for others to do the same.

Ending my ride brings me back towards Longport, NJ with the sun streaking towards its daily zenith. Tired, worn out, but loving each pedal stroke, I am ready for the remainder of the day.  But mostly, I just need a cup of coffee.

Medical Marijuana and the Physician Practitioner

In Pennsylvania medical marijuana is almost here.  Business licenses have been issued, dispensaries are being built, and physicians are getting approved as “Practitioners”.  Who will be their patients and how will dispensaries attract patients are unanswered questions as of yet.

The new regulations do set forth very specific proscriptions about who can certify a patient, which patients can be certified to receive a medical marijuana card, and the extent to which certifying practitioners are allowed to participate in this new business space.  This blog will discuss some of these issues.

Firstly, only physicians registered and approved by the Department of Health (“DOH”) as “Practitioners” may certify a patient to receive medical marijuana.   To qualify, a Practitioner must have an active, unrestricted medical or osteopathic license in the Commonwealth of Pennsylvania issued pursuant to the Medical Practices Act or the Osteopathic Medical Practice Act.  Only the DOH determines if Practitioners are qualified to treat patients with one or more serious medical conditions. These conditioners are not listed in the regulations.

To become a DOH Practitioner pursuant to medical marijuana regulations the physician must take a four hour training course. The training course shall include important responsibilities of Practitioners under the Medical Marijuana Act, general information regarding medical marijuana under federal and state law, the scientific research regarding the risks and benefits of medical marijuana, and recommendations for medical marijuana as it relates to the continuing care of pain management, risk management opiate addiction, palliative care, overdosing on medical marijuana, informed consent, and other areas to be determined by the DOH.  1181.32.  All Practitioners must be familiar and compliant with the Prescription Drug Monitoring Program.  A physician must possess knowledge of best practices regarding medical marijuana dosage based upon a patient’s serious medical condition and the medical professional’s medical training and specialty.  These provisions, while very vague and ambiguous, are extremely extensive.

Once, a physician is approved as a Practitioner (which has not yet happened), what is the process they must follow to issue patient certifications (the medical marijuana card)? The physician patient initial or follow up consultation must be complete, in person, and documented in the patient’s healthcare records contemporaneous to the issuance of a patient certification.  Any medical marijuana certification can only be issued consistent with (AFTER REVIEWING) the patient’s Prescription Drug Monitoring controlled substance use history. That law is found at 35 P. S. 872.1-872.40. A violation of the monitoring law is a Drug Act violation.

These initial evaluations could become the lynch pin of future disciplinary action against rouge physician Practitioners.  Practitioners can not simply meet a patient claiming to suffer from “cancer”  or a “serious” medical condition and issue a patient certification.  The doctor patient consultation must be complete and extensive.  These patients must already have a “serious” medical condition.  Practitioners must secure documentation of such prior to or contemporaneous with the patient certification.  Up to date X-rays, MRI’s, biopsy results, specialist’s reports, prescription drug histories, and/or copies of a complete medical history file should be secured before issuing the patient certification.  The Practitioner who does not initiate a best practices for these initial patient consultations will expose themselves to unhappy patients (who expect their certification at the first consultation) and disciplinary action for practicing below the standard of care and in violation of DOH medical marijuana regulations.

Patient certifications require complete patient identifiers, along with the diagnosis, assumption of continuing care for the patient, and the length of time (not exceeding one year) that the marijuana treatment would be palliative or therapeutic.  1181.27.  The Practitioner must also recommend either a specific dosage or consultation with the dispensary employee to recommend dosage.   Importantly, Practitioners may not receive or provide medical marijuana product samples — suggesting their patients “try this” to “see how it works”.

Patient certifications are easily revoked.  Practitioners SHALL notify the DOH in writing if they know or have reason to know that one of their certified patient has recovered from their “serious” medical condition, the patient has died, or the medical marijuana use would no longer be therapeutic or palliative. 1181.28-29. The regulations allow a Practitioner to withdraw the issuance of a patient certification at any time, without any reason,  upon written to notification to both the patient and DOH. 1181.29.   This will be  interesting in practice how these provisions play out.  Cancelling a certification could generate patient complaints to DOH and subsequent DOH disciplinary action.  Hence, full compliance with all patient contact and documentation requirements to properly answer  a DOH – and possible Medical Board – investigation is paramount and prophylactic.  DOH will be vigilant against any medical Practitioner violating these regulations.

Once a patient receives DOH revocation notification, the same is entered in the electronic tracking system. Any subsequent distribution of medical marijuana to an uncertified patient shall be a violation of the Prescription Drug Monitoring program protocols and, potentially, the criminal laws of the Commonwealth of Pennsylvania.  Here is where the trouble for Practitioners lie.  Any improper certification will become a violation of the Drug Act, possibly a felony, thereby creating automatic license suspension issues.

Department of Health regulations allow for a Practitioner to be removed from the medical marijuana practitioner registry if a Practitioner’s medical license is inactive, expired, suspended, revoked, limited or otherwise restricted by the Pennsylvania appropriate medical board. 1181.26. Any physician subject to professional disciplinary action is subject to immediate or temporary suspension of their medical marijuana participation.  A physician subject to any professional disciplinary action (Pennsylvania of other state) may be removed for the Practitioner list.  Importantly, these provisions only require the initiation of disciplinary action, not any formal conclusion to a disciplinary action.  This is a huge provision allowing for emergent and possible automatic suspension from the program and medical license problems.   Stay ahead of the investigatory curve; document everything, practice with extreme ethical limitations, assume any patient in your medical practice is not really sick or is an undercover DOH officer recording your every word.

There is an anti-kickback provision in the medical marijuana regulations. 1181.31(a). The only fee for service a practitioner can receive is from an actual or prospective patient consultation.  Practitioners cannot accept, solicit or offer any form of remuneration from anybody associated with the dispensary in any manner. (No baseball tickets, diners, college tuition, cars, lunch, Christmas baskets.)  All fee for services must be properly schedule and posted.  As there is no insurance coverage for these medical services, receipt for payment in cash must provided and properly documented. Accepting credit card payments for these services could expose the Practitioner to federal banking violations. Revenues must be reported to avoid any state or federal tax evasion investigations.  Depositing this cash in the bank is a separate issue for a separate blog.

Practitioners are extremely limited to whom they can issue certifications.    Practitioners can not be a designated caregiver for a their own patient to whom the Practitioner issues a certification, may not issue a patient certification for themselves or a family or non family household member.  Practitioners may not advertise their services as a Practitioner who can certify a patient to receive medical marijuana. 1181.31(b)-(f). Practitioners will require continuing, aggressive management of their qualifications to ensure continued compliance with DOH medical marijuana regulations. A Practitioner under the Act cannot hold a direct or economic interest in a medical marijuana organization.

Any physician removed from the practitioner registry may not have asked electronic access to patient certifications, issue or modify a patient certification, or provide a copy of existing patient certifications to any person parentheses including a patient caregiver, or other medical professional, except in accordance with applicable law.

Call me to discuss setting up your practice or any potential disciplinary issues associated with your practice as a practitioner certifying patients to receive medical marijuana.

Riding the Bridges of South Jersey And Valley Forge

My administrative law blog followers are eagerly awaiting a new blog. The summer months have been slow with regard to new legal decisions or laws and/or regulations that substantially change my practice.

The various health related professional board’s summer meetings have kept me very busy.  After a licensing board meeting, clients’ matters that are on the agendas – accepting the decision of a hearing officer, approving an consent agreement, or ordering a Mental and Physical Evaluation – generate a lot of work.

Great weather affords me the opportunity to ride my bike a little bit more.  Averaging 125 miles a week takes me across many bridges, rivers, and bike trails, while traversing local county roads. My escapade to the Lancaster County Courthouse via West Chester and the Brandywine Valley was well documented.

Down the Shore, calm winds and little rain allows me to ride throughout the Garden State Parkway’s mainland beach communities. Leaving Margate, Atlantic County, I ride through Somers Point, along the Great Egg Harbor River up to Mays Landing. Turning left on Route 50 (The Pine Barrens Byway), I have had the pleasure of being joined or joining other riders into Cape May County.  We ride to Marmora, or across to Milmay, Estell Manor,  Tuckahoe, Corbin City, Ocean City, and back through Longport New Jersey.

The pictures reveal the geographic flatness of these rides. The hills are man-made and provide a reasonable perch through which one can take in mother nature’s wonders. The artificial elevations are gentle, well paved, and are really fun way to end the ride.

Looking East at Ocean City’s North End Bridge

Look Back To Somers Point

Ocean City, NJ Back Bay

Looking North To Longport

The South Jersey Pine Lands provide a wonderful misty fog, with a crispy pine flavor, in the early morning cool air. This differs from the Schuylkill River Trail, the new pedestrian bridge at Route 422, and riding through Valley Forge Park at sunrise.  It’s a hard choice as to which is a better ride; 50 to 60 miles of flats in just over two hours, or 25 miles of hills and the history of the Valley Forge and Brandywine valley in the same amount of time.

Rt 422 Bridge, Valley Forge Park Facing East Sun Rise

Rt 422 Bridge Facing West

The one constant in all of these rides are the bridges. Large or small, tall or short, long or brief, they allow walkers and riders to go from one place to another without which the rides could not take place. It’s just great to be out there, getting energized and ready for each day.

 Call me to discuss you licensing matter.