                             [J-64-2019] [MO: Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                   :   No. 38 EAP 2018
                                                 :
                      Appellee                   :   Appeal from the Order of Superior
                                                 :   Court entered on 03/26/2018 at No.
                                                 :   730 EDA 2017 (reargument denied
               v.                                :   05/23/2018) reversing and
                                                 :   remanding the Order entered on
                                                 :   02/08/2017 in the Court of Common
 TIMOTHY TRAHEY,                                 :   Pleas, Philadelphia County, Criminal
                                                 :   Division, at No. CP-51-CR-
                      Appellant                  :   0000422-2016.
                                                 :
                                                 :   ARGUED: September 10, 2019


                                  CONCURRING OPINION


JUSTICE MUNDY                                                  DECIDED: April 22, 2020
       Because I would not decide the validity of the exigent circumstances to the warrant

requirement for a blood alcohol concentration test, based on the alternative availability of

a breathalyzer test, I concur in the result only. In my view, the two tests are separate and

distinct, and access to a breath test does not necessarily affect a warrant application or

the applicability of an exception to the warrant requirement for obtaining a blood test. As

the Majority notes, in Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160 (2016), the

Supreme Court held that the reasonableness of a blood test “must be judged in light of

the availability of the less invasive alternative of a breath test.” Majority Op. at 4, 24

(quoting Birchfield). Based on this, the Court rationalized that the less invasive breath

test did not require a warrant, while a blood test did. The Court did not hold that when a

breath test is available, exigent circumstances permitting a warrantless blood test cannot

occur. In fact, the Court stated, “[n]othing prevents the police from seeking a warrant for
a blood test when there is sufficient time to do so in the particular circumstances or from

relying on the exigent circumstances exception to the warrant requirement when there is

not.” Id. (citing McNeely, 569 U.S., at __, 133 S.Ct., at 1568). Thus, contrary to the

majority’s pronouncement that the United States Supreme Court “has signaled its

preference for breath testing”, it is clear that the Court did not intend for the availability of

a breath test to create a prerequisite to the exigent circumstances doctrine application to

warrantless blood tests.      See Majority Op. at 21.         The two tests remain distinct

alternatives, and as the Supreme Court held in McNeely, “consistent with general Fourth

Amendment principles, . . . exigency in [DUI cases] must be determined case by case

based on the totality of the circumstances.” Id. at 145.

       Accordingly, I concur in the result.1

       Chief Justice Saylor joins this concurring opinion.




1 While the initial circumstances of this matter had the indicia of exigent circumstances,
at the point in time that Appellant consented to a warrantless blood draw, under the now
unconstitutional implied consent law, the circumstances ceased to exist. We cannot in
hindsight determine how the officers would have proceeded absent Appellant’s consent.
Thus, we question the value of an analysis of exigency in this case when in fact the
officers at the time proceeded on a theory of consent.


                               [J-64-2019] [MO: Wecht, J.] - 2
