J-A15010-17

                                  2017 PA Super 252



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JUSTIN MITCHELL HAINES

                            Appellant                  No. 1760 MDA 2016


               Appeal from the Order Entered October 17, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0005514-2015


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

OPINION BY MOULTON, J.:                               FILED AUGUST 02, 2017

       The Commonwealth appeals from the October 17, 2016 order entered

in the York County Court of Common Pleas granting the motion to suppress

filed by Justin Mitchell Haines.1 Because the trial court did not make factual

findings regarding whether Haines consented to the blood draw before or

after being improperly warned about the consequences of refusal, we are




____________________________________________


       1
        In its notice of appeal, the Commonwealth certified that the trial
court’s order granting Haines’ motion to suppress terminates or substantially
handicaps the prosecution. See Pa.R.A.P. 311(d) (permitting interlocutory
appeal where Commonwealth certifies with its notice of appeal that order
terminates or substantially handicaps prosecution). Thus, the appeal is
properly before us. See Commonwealth v. Ivy, 146 A.3d 241, 244 n.2
(Pa.Super. 2016).
J-A15010-17



unable to determine whether the court erred in finding Haines’ consent was

involuntary. We therefore reverse and remand with instructions.

     The trial court set forth the following factual history:

           [Haines] is charged with the following offenses; (1)
        Murder of the Third Degree, 18 Pa.C.S.A. § 2502(c); (2)
        Aggravated Assault, 18 Pa.C.S.A. § 2702(a)(1); (3)
        Homicide by Vehicle While Under the Influence of Alcohol
        or Controlled Substance, 75 Pa.C.S.A. § 3735; (4)
        Aggravated Assault by Vehicle While Under the Influence
        of Alcohol or Controlled Substance, 74 Pa.C.S.A. § 3735.1;
        (5) Homicide by Vehicle, 75 Pa.C.S.A. § 3732; (6)
        Aggravated Assault by Vehicle, 75 Pa.C.S.A. § 3732. 1; (7)
        two counts of DUI, 75 Pa.C.S.A. § 3802(a)(1), (c); (8)
        Reckless Driving, 75 Pa.C.S.A. § 3736; (9) Careless
        Driving, 75 Pa.C.S.A. § 3714(a); (10) Careless Driving-
        Unintentional Death, 75 Pa.C.S.A. § 3714(b); (11)
        Careless Driving- Serious Bodily Injury, 75 Pa.C.S.A.
        3714(c); and (12) Driving Vehicle at Safe Speed, 75
        Pa.C.S.A. § 3361.

           The incident that gave rise to these charges occurred in
        the early evening hours of February 8, 2015, in New
        Cumberland, York County, Pennsylvania at the intersection
        of Lewisberry and Poplar Road.           According to the
        Commonwealth’s testimony, this incident occurred as
        [Haines] was traveling west on Lewisberry Road in his
        black Honda Pilot. The victims, Kyle Richard Quigley and
        his wife, Amy L. Marburger, were entering Lewisberry Road
        from Poplar Road in Mr. Quigley’s White Honda Civic, when
        they were hit by [Haines’] vehicle. Mr. Quigley, who was
        driving at the time of the incident, was ejected from his
        vehicle and later pronounced dead.          Ms. Marburger
        sustained severe injuries, including, but not limited to, a
        brain injury, a shoulder injury, and internal injuries.
        Immediately following the incident, she was transported to
        Hershey Medical Center for treatment.




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               When [Sergeant] Timothy Dehoff and Sergeant
            Holland[2] arrived on scene, they began the investigation of
            their reports. It was concluded that there were no adverse
            weather conditions and the roadway was dry at the time of
            the crash. Further, [Haines] did not have any visual
            obstructions as he was traveling west on Lewisberry Road
            approaching Poplar Road.

               [Sergeant] Dehoff spoke with [Haines] on the scene
            after he was placed in the ambulance. [Haines] advised
            [Sergeant] Dehoff he was heading home at the time of the
            incident after picking up food for his family. At that time,
            the officer smelled a strong o[]der of alcohol coming from
            [Haines’] breath and when asked [Haines] stated he had
            consumed one beer earlier that day.

               [Haines] was transported to Harrisburg Hospital for
            medical observation.     [Sergeant] Dehoff drove to the
            hospital to determine if personnel were going to perform a
            medical blood draw on [Haines].         Medical personnel
            informed [Sergeant] Dehoff that the hospital was not going
            to draw blood due to the lack of [Haines’] significant
            injury. At that time, [Sergeant] Dehoff requested [Haines]
            to submit to a blood chemical test to determine his blood
            alcohol concentration (“BAC”) based on the smell of
            intoxicants emanating from [Haines’] breath. After being
            verbally advised of the warnings set forth on Penn-DOT’s
            “DL-26” form [Haines] submitted to the test. The blood
            sample was sent to Quest Diagnostics for testing. [Haines]
            BAC was measured at 0.250%. As a result of these facts,
            the aforementioned charges were filed.

Opinion in Support of Order Granting Defendant’s Motion to Suppress

Evidence of Blood Results, 10/17/16, at 1-4 (“Suppression Op.”).

       Haines filed a motion to suppress the blood test results.       On August

24, 2016, the trial court held a hearing on the motion.           On October 17,


____________________________________________


       2
           Sergeant Holland’s first name is not in the certified record on appeal.



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2016, the trial court granted Haines’ motion and suppressed the evidence.

The Commonwealth filed a timely notice of appeal.

     The Commonwealth raises the following issues on appeal:

        1. The trial court erred in granting [Haines’] motion to
        suppress his blood alcohol results as [Haines] voluntarily
        consented to having his blood drawn for purposes of blood
        alcohol toxicological testing.

           a. The trial court failed to consider the uncontested
           facts of record and controlling case law regarding the
           voluntary consent exception to the search warrant
           requirement, which allows for a warrantless blood
           draw where a defendant voluntarily consents to a
           blood draw.

           b. The trial court misapplied Birchfield v. North
           Dakota, [136 S.Ct. 2160] (2016) by performing an
           inapplicable exigent circumstances analysis rather
           than considering the voluntary consent exception to
           the search warrant requirement.

        2. The trial court erred in granting [Haines’] motion to
        suppress his blood alcohol results, as [Haines’] blood draw
        is admissible pursuant to 75 Pa.C.S. § 3755.

           a. The trial court erred in determining that 75
           Pa.C.S. § 3755 was inapplicable despite [Haines]
           being transported by EMS to Harrisburg Hospital
           emergency room for medical treatment following a
           fatal vehicle crash, and where police officers
           possessed probable cause to believe that [Haines]
           committed a violation of 75 Pa.C.S. §3802 and
           communicated said probable cause to hospital
           personnel.

           b. The trial court erred in determining that 75
           Pa.C.S. § 3755 was inapplicable based upon medical
           personnel’s failure to comply with the mandates of
           §3755, which required medical personnel to
           promptly take a blood sample from [Haines] based
           upon probable cause for violating 75 Pa.C.S. §3802,
           as medical personnel’s failure to comply with the

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J-A15010-17


              mandatory dictates of §3755 did not negate the
              admissibility of [Haines’] blood draw and blood
              alcohol results.

Cmwlth’s Br. at 4-5.

       When reviewing the grant of a suppression motion, we must determine

whether the record supports the trial court’s factual findings and “whether

the legal conclusions drawn from those facts are correct.” Commonwealth

v. Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013) (quoting Commonwealth

v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010)).             We may only consider

evidence presented at the suppression hearing. In re L.J., 79 A.3d 1073,

1085-87 (Pa. 2013). In addition, because the defendant prevailed on this

issue before the suppression court, we consider only the defendant’s

evidence and so much of the Commonwealth’s evidence “as remains

uncontradicted when read in the context of the record as a whole.” Brown,

64 A.3d at 1104 (quoting Cauley, 10 A.3d at 325). We may reverse only if

the legal conclusions drawn from the facts are in error. Id.

       The United States Supreme Court has held that because “the taking of

a blood sample” is a search within the meaning of the Fourth Amendment to

the United States Constitution, police officers may not compel the taking of a

blood sample without a search warrant, absent an applicable exception.

Birchfield, 136 S.Ct. at 2173, 2185.3            After concluding that “the search
____________________________________________


       3
        In contrast, the Supreme Court also held that police officers may
administer a breath test without a warrant as a search incident to arrest.
Birchfield, 136 S.Ct. at 2185.



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J-A15010-17



incident to arrest doctrine does not justify the warrantless taking of a blood

sample,” id. at 2185, the Birchfield Court considered whether implied-

consent laws, which require cooperation with blood-alcohol testing as “a

condition of the privilege of driving on state roads,” could provide an

exception      to   the   warrant    requirement       consistent       with   the   federal

constitution. Id. at 2169, 2185-86. The Court held that, although implied-

consent laws that impose civil penalties and evidentiary consequences for

refusing to consent are constitutional,4 implied-consent laws that “impose

criminal     penalties”   for   refusing       to   consent   to    a    blood   test   are

unconstitutional because “motorists cannot be deemed to have consented to

submit to a blood test on pain of committing a criminal offense.”                    Id. at

2185-86.




____________________________________________


       4
           The Court in Birchfield stated:

            Our prior opinions have referred approvingly to the general
            concept of implied-consent laws that impose civil penalties
            and evidentiary consequences on motorists who refuse to
            comply. See, e.g., [Missouri v.] McNeely, []133 S.Ct.
            [1552,] 1565–1566 [(2013)] (plurality opinion); [South
            Dakota v. Neville, 459 U.S. 553, 560, (1983)].
            Petitioners do not question the constitutionality of those
            laws, and nothing we say here should be read to cast
            doubt on them.

136 S.Ct. at 2185.




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       In Commonwealth v. Evans, this Court reviewed Pennsylvania’s

implied-consent law5 and found that “the law undoubtedly ‘impose[s]

criminal penalties on the refusal to submit to’” a blood test. 153 A.3d 323,

331 (Pa.Super. 2016) (quoting Birchfield, 136 S.Ct. at 2185-86).          In

Evans, a police officer told the defendant that:

           It is my duty as a police officer to inform you that if you
           refuse to submit to a chemical test, your operating
           privilege will be suspended for at least 12 months and up
           to 18 months. If you have prior refusals or have been
           previously sentenced to driving under the influence, in
           addition, if you refuse to submit to chemical test and
           you are convicted or plead to violating §
           3802(a)(1)[,] related to impaired driving under the
           vehicle code, because of your refusal, you will be
           subject to more severe penalties set forth in §
           3804(c)[,] relating to penalties, the same as if you
           were—if you would be convicted at the highest rate of
           alcohol, which can include a minimum of 72 consecutive
           hours in jail and a minimum fine of $1,000, to a maximum
           of [five] years in jail and a maximum fine of $10,000.

Id. at 325 (emphasis added).6 This Court vacated the judgment of sentence

and remanded to the trial court to “reevaluate [Appellant’s] consent . . . [,

based on] the totality of all the circumstances.”        Id. at 331 (quoting
____________________________________________


       5
        Pennsylvania’s implied-consent law states that a person’s license
may be suspended if a person refuses a requested blood test, 75 Pa.C.S §
1547(b), and that a person faces increased criminal penalties if he or she
refuses a blood test and is later convicted of DUI (general impairment), see
id. § 1547(b)(2)(ii); id. § 3804(c) (providing sentencing ranges for “[a]n
individual who violates section 3802(a)(1) and refused testing of blood or
breath or an individual who violates section 3802(c) or (d)”).
       6
       This is the same warning contained on the DL-26 form read to and
signed by Haines.



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J-A15010-17



Birchfield, 136 S.Ct. at 2185-86) (alterations in original).      We reasoned

that the implied-consent warnings given to the defendant were “partially

inaccurate” because they referenced enhanced criminal penalties that could

not be constitutionally imposed, arguably vitiating the defendant’s consent.

Id.

      Our Supreme Court has applied the following standard to determine

whether an individual has validly consented to a chemical test:

           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, 77 A.3d 562, 573 (Pa. 2013) (internal citations

and quotation marks omitted).

I.    The Timing of Haines’ Consent

      The Commonwealth first argues that Haines’ consent was voluntary

and unaffected by the decision in Birchfield.     Specifically, it makes the

factual claim that Haines consented to the blood draw prior to being read the


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DL-26 form, which contained the warning that he would face enhanced

penalties if he refused consent and later was convicted of DUI general

impairment. As a result, the argument continues, Haines’ consent could not

have been tainted by the later-delivered, “partially inaccurate” DL-26

warning, thus rendering his consent valid and the results of the blood draw

admissible.

      We agree that if Haines validly consented before being informed that

he faced enhanced criminal penalties for failure to do so, then his consent

would not be tainted by the warning and the blood test results would be

admissible. See Birchfield, 136 S.Ct. at 2185-86. If, however, he did not

consent until after Sergeant Dehoff informed him that he would face

enhanced criminal penalties if he refused to consent, then the trial court did

not necessarily err in granting his motion to suppress the test results. Id.

      Here, the trial court’s opinion does not address this important temporal

distinction, instead simply stating that “[a]fter being verbally advised of the

warnings set forth on Penn-DOT’s ‘DL-26’ form [Haines] submitted to the

test.” Suppression Op. at 3-4 (emphasis added). The trial court concluded

that “the Commonwealth failed to present evidence that the impermissible

enhanced criminal penalty that would have applied if [Haines] failed to

submit to the blood test, was in fact not the factor that caused [Haines] to

consent to the blood test.”    Id. at 8.   This conclusion, however, did not

account for Sergeant Dehoff’s testimony at the suppression hearing, relied

on by the Commonwealth. Sergeant Dehoff testified as follows:

                                     -9-
J-A15010-17


       A. . . . I explained to him that I was going to ask him to
       submit to a blood test to determine his blood alcohol level.
       He said he understood.

          I then read to him the DL-26 (3-12) version, chemical
       test warnings. I read that to him aloud and requested that
       he sign it that he had in fact been read those, and he did
       do that.

       Q. Now, before we go into the DL-26 form at that time,
       when you were speaking to [Haines] about that you were
       going to request a blood alcohol test and request a blood
       draw to perform such test, had you placed [Haines] under
       arrest at that point?

       A. No.

       Q. When you mentioned to him that you were going to
       make such a request, what was the -- did [Haines] agree
       to have his blood drawn at that point?

       A. He did.

       Q. And was that prior to you reading the DL-26 form?

       A. That’s correct.

       Q. Now, you said then, after he had agreed, you then read
       the DL-26 form ; is that correct?

       A. Correct.

       [Assistant District Attorney (“ADA”)]: May I approach, Your
       Honor?

       THE COURT: You may.

       BY [ADA]:

       Q. Officer, I want to show you the DL-26 form.

       This is Commonwealth’s Exhibit 3. I ask if you would
       review that and if you recognize what this exhibit is.

       A. This would be the DL - this is a copy of the DL-26 that I
       would have read to Mr. Haines indicating that I was
       requesting a chemical test of blood, my signature that I
       read it to him, and his signature that it had been read to
       him.

                                  - 10 -
J-A15010-17


       Q. And did you actually see Mr. Haines sign this form?

       A. I did. He used my pen and my clipboard.

       Q. And you saw him date this form; is that correct?

       A. Correct.

       Q. Now concerning this particular DL-26 form as part of
       this form, do you see a Number 3 listed under, “It is my
       duty as a police officer to inform you of the following”? Do
       you see that?

       A. Number 3?

       Q. Yes.

       A. Yes.

       Q. Concerning Point Number 3, do you see any discussion
       there regarding enhanced criminal penalties if [Haines]
       were to refuse?

       A. Yes.

       Q. And did you in fact also read that paragraph as it was
       on the form to [Haines]?

       A. Verbatim.

       Q. Now, in reading this particular form verbatim to
       [Haines], following that, he did sign it, correct?

       A. Correct.

       Q. And following the signature and execution of the DL-26
       form, was any blood drawn from [Haines]?

       A. It was.

       ...

       Q. And at that point, did [Haines] agree, prior to the
       reading of the DL-26 form, to having his blood drawn?

       A. He did.




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J-A15010-17



N.T., 8/24/16, at 19-23.       Sergeant Dehoff further testified on cross

examination that:

        A. I basically told Mr. Haines, “Because the nature of the
        crash, there were severe injuries,” he asked me if Mr.
        Quigley was deceased. I said, “I can’t tell you that. I
        don’t know.” I said, “But because of what has occurred
        here today, you admitted to drinking, I can smell it on you,
        I’m going to ask you to take a blood test to determine how
        much alcohol is in your blood.” He said, “Okay.”

        Q. You then read him the DL-26 form?

        A. Yes.

        Q. After you read him the DL-26 form, you requested him
        to submit to a blood test?

        A. That’s correct.

        Q. He then agreed after hearing that form, correct?

        A. That’s correct.

        Q. You never informed him prior to the first consent that
        he would go to jail, correct?

        A. No.

        Q. You never told him he had the right to refuse before
        that?

        A. Refuse the test?

        Q. To submit to a test before that?

        A. No, I didn’t tell him that.

        Q. You never told him he was under arrest before that?

        A. That’s correct.

        Q. So to cover your bases, you read him the form, and
        then you asked him to submit to a blood test?

        A. That is correct.

        Q. And at that point he agreed to submit to a blood test?

                                     - 12 -
J-A15010-17


        A. He did again.

Id. at 27-28

      This testimony would support a finding that Haines consented before

the DL-26 warnings or a finding that he consented after the warnings.

Because the trial court did not make a factual finding addressing that issue,

we must remand for a determination as to whether, under the totality of the

circumstances, including the issue of timing, Haines’ consent to the blood

draw was valid. See Evans, 153 A.3d at 331.

II.   Authorization under 75 Pa.C.S. § 3755

      In the alternative, the Commonwealth contends that “the trial court

erred in granting [Haines’] suppression motion because [Haines] did not

have a right to refuse a blood draw pursuant to 75 Pa.C.S. § 3755.”

Cmwlth’s Br. at 20.

      The Vehicle Code provides:

        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. This section shall be applicable to all injured
        occupants who were capable of motor vehicle operation if
        the operator or person in actual physical control of the
        movement of the motor vehicle cannot be determined.
        Test results shall be released upon request of the person

                                   - 13 -
J-A15010-17


           tested, his attorney, his physician or governmental officials
           or agencies.

75 Pa.C.S. § 3755(a).

       The Commonwealth argues that the requirements of section 3755

were all met – Haines, as a result of a motor vehicle accident, required

emergency room treatment and Sergeant Dehoff had probable cause to

believe Haines had been driving under the influence of alcohol. Accordingly,

relying in part on our recent decision in Commonwealth v. March, 154

A.3d 803 (Pa.Super. 2016), it contends that medical personnel at the

hospital should not have refused Sergeant Dehoff’s request that they take a

blood sample from Haines and submit the sample for testing.

       While we do not necessarily disagree with the Commonwealth’s

reading of section 3755, the fact remains that hospital personnel, for

whatever reason, declined to draw Haines’ blood pursuant to that provision.7

That they might or even should have done so does not provide an

independent basis for denying Haines’ motion to suppress. Accordingly, the




____________________________________________


       7
        The question whether they could or should have done so, as a matter
of statutory or constitutional law, is not properly before us. Accordingly, we
need not address the question whether, in light of Birchfield, the implied
consent envisioned by the combination of sections 1547 and 3755 provides
an independent, constitutionally valid exception to the warrant requirement.
Cf. Commonwealth v. Myers, ---A.3d.---, 2017 WL 3045867, at *8-*13
(Pa. July 19, 2017).(opinion for three justices concluding that implied
consent scheme, without more, is insufficient to establish the voluntariness
of consent necessary to serve as exception to the warrant requirement).



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J-A15010-17



admissibility of the test results turns wholly on the validity of Haines’

consent.

      Order vacated.      Case remanded, with instructions.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2017




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