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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State Trooper Highway Automobile Dog Searches After the End of Traffic Investigation

This week the United States Supreme Court decided Rodriguez v.United States, 575 U.S. ___ (2015). The decision affirms a significant portion of Pennsylvania law in the area of extension of traffic stops beyond the initial motor vehicle code investigation. I have handled these cases in Cumberland, Lancaster, Montgomery, Bucks and Philadelphia Counties.

These cases routinely involve state troopers illegally extending basic traffic stop investigations into motor vehicle searches. These extended traffic stops discover illegal contraband leading to broader criminal charges. However, it is that extended search, based only upon a guess, hunch, or a simple illegal request to search, that is illegal.

Rodriguez v. United States rules illegal the extension of a traffic stop by calling in a dog sniff team without reasonable suspicion of criminal activity. The US Supreme Court previously stated that a dog sniff conducted during a lawful traffic stop does not violate the fourth amendment proscription unreasonable seizures. Rodriguez presents the question of whether the Fourth Amendment tolerates EXTERIOR dog sniffs after completion of a traffic stop, not during, when the time needed to handle the matter for such violation exceeds a reasonable time.

The Pennsylvania trial courts have addressed this scenario many times, leading a Chester County Judge to state, “there is a distasteful convergence of facts and circumstances … that test the bounds of credulity and requires the court’s candor in distinguishing between lawful police investigatory conduct and conduct proscribed by our Constitutions.” Commonwealth v. Parker, 2009 Pa. Dist. & Cnty. Dec. LEXIS 132 (2009)(Honorable Ronald C. Nagle, Chester County Court of Common Pleas). The Pennsylvania Supreme Court has consistently stated, “Where the purpose of an initial traffic stop has ended and a reasonable person would not have believed that he was free to leave, the law characterizes a subsequent round of questioning by the police as an investigative detention or arrest. In the absence of either reasonable suspicion to support the investigative detention or probable cause to support the arrest, the citizen is considered unlawfully detained.”

After police finish processing a traffic infraction, the determination of whether a continuing interdiction constitutes a mere encounter or a constitutional seizure centers upon whether an individual would objectively believe that he was free to end the encounter and refuse a request to answer questions. Commonwealth v. Kemp, 2008 PA Super 274, 961 A.2d 1247, 1253 (Pa. Super. 2008) citing Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000).

To determine whether interaction following a legal detention is a “mere encounter” or a detention, Pennsylvania courts analyze the totality of the circumstances including:

1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen’s movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, . . . thus suggesting to a citizen that his movements may remain subject to police restraint; 9) the presence of an express admonition to the effect that the citizen-subject is free to depart is a potent, objective factor; and 10) whether the citizen has been informed that he is not required to consent to the search.

Commonwealth v. Moyer. Conferral of the ‘free-to-go’ advice is itself not a reason to forego a totality assessment’ and therefore does not constitute a controlling factor in assessing whether a person would actually credit a police indication that he was free to leave.”

In many of these cases, the police fabricate the basis for the late night car stop, picking some specious motor vehicle code violation. Allegations of traveling too closely, lane change without a blinker, a license plate lights out, obstructions from a rear view mirror, or illegal under car lights are typical deminimus traffic violations. Sometimes tickets are issued. More often than not, no warnings or violation is recorded.

After the individual is removed from the vehicle, basic cursory flashlight investigation and driver’s information computer checks are made. In many cases all is legal.  There is no evidence of criminal activity presented to justify either a consensual search or a request for a non-consensual search. Maybe two cell phones, a rental car, and a careful driver from out-of-state is present. Troopers routinely claim under oath that the person, wherever they are coming from, was traveling from a high drug area.

At this juncture, state troopers threaten dogs ripping apart vehicles. If this does not work, suggestions of long delays and “we will just get a warrant” followed by “we will then rip your car apart” are employed. These tactics are deployed to secure consent to search. It is when the search requests are denied, as in Rodriguez, that state troopers call in backup canine officers. Here the motorist must wait and is thus detained.

When the dogs arrive and conduct the exterior sniff, alerting to “contraband”,Troopers now claim reasonable suspicion to then enter the car for further searching. Rodriguez addresses the legality of this police tactic; extending an otherwise legal traffic stop that did not present reasonable suspicion of criminal activity, by requiring a motorist to wait for the canine sniff team for the exterior search which creates the only reasonable suspicion to then enter the car without consent.

It is now the law of the land that this is illegal. Rodriquez rules that the traffic stops become unlawful when prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket. The seizure remains lawful only so long is unrelated inquiries do not measurably extend the duration of the traffic stop. The court ruled that a dog sniff, a measure aimed at detecting evidence of ordinary criminal wrongdoing, with out reasonable suspicion to do so extends illegally the duration of the traffic stop.

The Court squarely rejected the argument that an officer may incrementally prolonged a stop to conduct dog sniffs so long as the officer is reasonably diligent in pursuing the traffic related purpose of the stop. (The Court equated this to the officer earning bonus time to pursue an unrelated criminal investigation.) The magistrate’s finding that the detention for the dog sniff, which itself prolongs the traffic stop, was not independently supported by individualize suspicion, rendered illegal the extension of the traffic stop.

Call me to discuss your car investigation.

Summer 2013 DUI Update

So far this summer, Pennsylvania’s Superior Court issued two very significant DUI decisions. The first ruling was handed down the case of Commonwealth v. Musau. The second decision was presented in Commonwealth v. Barker.

In Musau the trial court found Musau guilty of driving under the influence of alcohol in violation of 75 Pa. C.S.A. §3802(a) (general impairment), his a second offense, and graded the conviction as a first-degree misdemeanor pursuant to 75 Pa C.S.A. §3803(b) (4). The trial court sentenced Musau to ninety days to five years in jail.

On appeal Musau argued there was a conflict between § 3802(a) (which carries a maximum of six months supervision) and §3803(b) (4) (that identifies a violation of § 3802(a), 2nd offense, as a first-degree misdemeanor which carries a potential five years supervision). In light of the statutory conflict, Musau argued his supervision could only be ninety days and not five years. Superior Court agreed.

After reviewing the sentencing provisions of the specific DUI statute, 75 Pa. C.S.A. §3802, et seq., and the general sentencing parameters of the criminal code under 18 Pa. C.S.A. §106(b) (6), (e), the court concluded that if an individual is only found guilty of the “general impairment” provision of §3802(a) and not §3802(c) or (d), the maximum potential supervisory sentence is six-months and not five years. The important part of this case is just that: if a court finds a person who may have refused the blood or breath test guilty under § 3802(a) only, as a second offense, and not § 3802(c) or (d), the sentencing maximum is six months, not five years.

The lesson here is to specifically ensure any refusal charges §3802(d) are either dismissed or withdrawn at a preliminary hearing in the counties or a finding of not guilty in Philadelphia Municipal Court. Thereafter, the trial court may only, if the evidence is sufficient, find guilt under §3802(a), a general impairment conviction. Sentencing will then be governed by the DUI statute and ninety days, not the Crimes Code.

The second case is Commonwealth v. William Barker. The case began as a garden-variety motor vehicle infraction, typical traffic stop, and suspicion of DUI.  However, competent counsel convert the case into a discussion of motorists’ right to an alternative blood tests under 75 Pa. C.S.A. §1547(i) and a police officer’s violation of the refusal statute, not the motorist’s.

For those unaware, 75 Pa. C.S.A. §1547 is the Pennsylvania implied consent provision of the Pa motor vehicle code allowing for the police to request the operator of a motor vehicle suspected of DUI to submit to a breathalyzer test or have their blood drawn at an appropriate medical facility.  If they refusal the criminal sentence may be worse and at least a 1 year license suspension separate from the DUI may follow.

The appeals court addressed §1547 in the context of a §3802(d) refusal case. §3802 (d) is the DUI refusal statute law enforcement may charge individuals who have “refused” to submit to any chemical test requested pursuant to §1547. 75 Pa.C.S.A. §3802(d) (2) defines driving under the influence as follows: An individual may not drive, operator, or be in actual physical control of the movement of the vehicle under the influence of drugs or a combination of drugs to a degree to which impairs the ability to drive safely, operate or be an actual physical control of the movement of the vehicle.

Barker testified that he advised the investigating officer he would take any blood test that would establish his innocence, including paying for any test. Barker testified that he suffered a prior medical infection from the hospital to which he was taken, spending seven days there. At trial Barker was found guilty of violating §3802(d) (2) and was sentenced as a refusal.
Barker appealed the guilty finding under the refusal statute arguing that 75 Pa.C.S.A. §1547(i) specifically states: Request by driver for test: Any person involved in an accident or placed under arrest for violation of section… 3802… may request a chemical test of his breath, blood or your peers such request shall be honored when it is reasonably practical to do so.

At trial, the arresting officer did not testify that it was not reasonably practical to take Barker to a different location for the blood draw. Superior Court found this important. “Although section §1547 delineates the tests that may be used and the manners within which the tests must be conducted, §1547(i) does not indicate what constitutes ‘reasonably practical’ for an alternative test and an officer’s ability to reject a motorist’s request for an alternative means of testing at the time of arrest.” Stated another way, the court concluded that an investigating officer “shall honor a motorist’s request when it is ‘reasonably practical’ to do so”.

The court emphasized that the statute “presumes the validity of the motorist’s request and vests the officer with the discretion to decline the request for alternative testing only if the circumstances render the testing incapable of being put into practice with the available means”. The court went on to state that the statutory language does not continence an officer’s “arbitrary refusal” to decline an alternative test request.

The officer may decline the alternative test only if the test requested is not within the means available at the time the testing is sought. While the statute protects the arbitrary whims of motorists who might demand alternate forms of testing, the statute does not allow arbitrary conduct of the police officer in denying motorist’s requests when practical.

Consequently, the court stated that when an arresting officer arbitrarily refuses to allow alternative testing a motorist requests he deprives that motorist evidence admissible in any subsequent prosecution under § 3802, not just those prosecutions under 3802(c) or (d). This is significant in that in any DUI prosecution, an officer must comply with a request for an alternative testing at a different hospital or in a different manner, based upon an appropriate objection, medical condition, or phobia, if such alternate testing is practical under the circumstances.

The court found that when the arresting officer arbitrarily refused Barker’s request for an alternate test which would have produced evidence that may have proven his innocent, the officer substantially impeded Barker’s due process rights. Having found the police, not Barker, violated  § 1547, the appeals court concluded that the arresting officer’s “refusal to honor the statute’s provisions yields a resolution that deprived Barker of admission of evidence that, had it been available, would have been relevant to the charges at issue.” Such violation undermined Barker’s ability to counter the Commonwealth’s allegations and, therefore, warranted granting Barker’s appeal and dismissal of all charges.

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