J-A06018-15


                                  2015 PA Super 140

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

DARRELL MYERS

                            Appellee                  No. 2774 EDA 2013


                     Appeal from the Order August 27, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0052681-2012


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

OPINION BY OTT, J.:                                     FILED JUNE 15, 2015

       The Commonwealth appeals from the order entered August 27, 2013,

in the Philadelphia Court of Common Pleas, denying relief from an order of

the Philadelphia Municipal Court that suppressed test results from a

warrantless blood draw of appellee, Darrell Myers, who was charged with

driving under the influence of alcohol, in violation of 75 Pa.C.S. § 3802(a)(1)

(general impairment/incapable of driving safely).1 Based upon the following,

we affirm.

       From the trial court’s opinion, we quote:


____________________________________________


1
  Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in good
faith that the trial court’s order will terminate or substantially handicap the
prosecution of this case, even though Myers was charged with general
impairment.
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     Based upon the record kept in this matter, this Court makes the
     following findings of fact:

           1.    On December 29, 2012, at approximately 3:30 p.m.,
     Officer James Bragg was on patrol in the city and county of
     Philadelphia. Motion to Suppress, Notes of Testimony, May 21,
     201[3], p. 7. His tour of duty took him to the location of 64 West
     Penn Street. Id.

           2.    Officer Bragg received a radio call for a person
     screaming in the area of 100 West Penn Street. Id. at 7. The
     flash was for a maroon SUV. Id. at 8.

           3.    As Officer Bragg came down Penn Street, he
     observed a maroon SUV which had its engine running. Id. The
     vehicle was observed with its brake lights repeatedly going on
     and off and [Myers] was observed seated in the driver’s seat. Id.
     at 8.

            4.   Officer Bragg witnessed [Myers] maneuvering the
     brake pedal himself -- which is to say, he did not have his
     hazards on and he was the one causing his lights to go [on] and
     off repeatedly. Id. at 8.

          5.   The vehicle was in the running lane [i]n front of 64
     West Penn Street. Id.

          6.     Officer Bragg pulled up behind the vehicle with his
     overhead lights and sirens on. Id. at 8, 9. He watched as the
     male driver exited the vehicle and immediately began staggering
     towards the officer’s car. Id. at 9. Officer Bragg had not ordered
     [Myers] out of the vehicle. Id. at 8.

           7.     [Myers] tried to say something at that time -- he had
     very slurred speech, however. The officer could not understand
     him. Id. at 9. The officer convinced him to have a seat on the
     steps in front of a nearby building. Id. at 9.

         8.     [Myers] had a moderate smell of alcoholic beverages
     emanating from his person. Id. at 9.

            9.   Officer Bragg testified that he has been on the force
     for five years and come directly into contact with people under
     the influence of alcohol on a number of occasions. Id. at 14, 15.

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     Based upon his experience and contact with people under the
     influence, he believed that [Myers] was intoxicated. See id. at
     12.

           10. Further, Officer Bragg saw a brandy bottle on the
     front seat of the vehicle. Id. at 12. He saw the item in plain
     view. Id. [Myers] left his vehicle door open as he stumbled
     outside during the initial stop. Id.

          11. On the basis of the foregoing observations, Officer
     Bragg indicated that he did not believe [Myers] could then safely
     operate a vehicle. Id.

          12. Officer Bragg then called a wagon and placed
     [Myers] under arrest for DUI. Id. at 23.

           13. Officer Bragg then had [Myers] transported to the
     hospital to have him medically cleared -- the officer was of the
     opinion that [Myers] was intoxicated to the point where he
     needed medical attention and that the PDU would not be able to
     handle the matter. Id. at 23, 24.

           14. Later that same day, around 4:45 p.m. on duty
     Officer [Matthew] Domenic arrived at Einstein Hospital. Id. at 25.
     He had received information that an individual arrested for DUI
     was at that hospital. Id. There, he observed [Myers] in a room in
     the emergency ward. Id.          [Myers] was unconscious and
     unresponsive. Id.

            15. [Myers] had been given four milligrams of Haldol by
     medical staff just a few minutes before the officer had arrived.
     Id. at 27.

          16. Officer Domenic attempted to make contact with the
     unconscious [Myers]. Id. at 27. He spoke his name several times
     to no avail. Id. at 27, 28. He then proceeded to rea[d] the
     standard informed consent warnings to [Myers]. Id. at 28.
     [Myers] did not respond. Id. at 28.

          17. Officer Domenic then requested that RN Kral perform
     a warrantless blood draw. Id. at 28.

          18. That blood draw took place at 5:01 p.m. Id. at 28.
     [Two] tubes of blood were provided to the officer. Id. They were

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        placed into a drug scan blood kit and transported back to AID
        headquarters where they were placed into a secure refrigerator.
        Id.

             19. The blood samples were placed on property receipt
        number 3078494. Id. They received a drug scan ID number and
        were submitted for testing. Id.

             20. [Myers] never signed the informed                  consent
        warnings, as he was unconscious and unresponsive. Id.

              21. The record is devoid of any evidence that the officers
        ever requested (or attempted to secure) a warrant prior to the
        blood draw being carried out.

Trial Court Opinion, 1/17/2014, at 2–4.

        On May 21, 2013, Myers proceeded to a hearing before the Municipal

Court on his suppression motion.               Myers argued that (1) the physical

evidence should be suppressed because Officer Bragg lacked probable cause

to arrest him for DUI, and (2) the blood draw should be suppressed because

there were no “exigent circumstances that would support a warrantless

draw,”2 making it illegal under the United States Supreme Court’s holding in

Missouri v. McNeely, 133 S. Ct. 1552 (2013).

        The Municipal Court judge granted the suppression motion in part,

with respect to the blood draw. The Municipal Court judge concluded that the

officers should have obtained a warrant because Myers was unconscious,

could not consent, and it “was [not] unreasonable for the Commonwealth to



____________________________________________


2
    N.T., 5/21/2013, at 35.



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go get a warrant in this situation.” N.T., 5/21/2013, at 43–44. In support,

the Municipal Court judge cited McNeely.

       On June 17, 2013, the Commonwealth appealed the Municipal Court’s

ruling to the Philadelphia Court of Common Pleas. On August 27, 2013,

following a hearing, the Honorable Paula Patrick denied the Commonwealth’s

appeal, and affirmed the decision of the Municipal Court.           This appeal

followed.3

       The Commonwealth raises the following question for our review:

       Did the lower court, sitting as an appellate court, err in holding
       that a warrant was required to obtain blood for a chemical test
       where the officer had probable cause to believe that [Myers] was
       driving under the influence of alcohol or a controlled substance?

Commonwealth Brief, at 4.

       Our standard of review is well settled:

       When the Commonwealth appeals from a suppression order, this
       Court may consider only the evidence from the defendant’s
       witnesses together with the evidence of the prosecution that,
       when read in the context of the record as a whole, remains
       uncontradicted. In our review, we are not bound by the
       suppression court’s conclusions of law, and we must determine if
       the suppression court properly applied the law to the facts. We
       defer to the suppression court’s findings of fact because, as the
       finder of fact, it is the suppression court’s prerogative to pass on
____________________________________________


3
    At the same time that the notice of appeal was filed, the Commonwealth
filed a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), even though the trial court had not yet ordered it to do
so. On January 17, 2014, Judge Patrick issued an opinion in support of her
decision.




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     the credibility of the witnesses and the weight to be given to
     their testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)

(citations omitted), appeal denied __ A.3d ___ (Pa. December 30, 2014).

     At issue in this appeal is application of the recent United States

Supreme Court decision in Missouri v. McNeely, supra. In McNeely,

     at approximately 2:08 a.m., a Missouri police officer stopped
     McNeely’s truck after observing it exceed the posted speed limit
     and repeatedly cross the centerline. The officer noticed several
     signs that McNeely was intoxicated, including McNeely’s
     bloodshot eyes, his slurred speech, and the smell of alcohol on
     his breath. McNeely acknowledged to the officer that he had
     consumed “a couple of beers” at a bar, App. 20, and he
     appeared unsteady on his feet when he exited the truck. After
     McNeely performed poorly on a battery of field-sobriety tests and
     declined to use a portable breath-test device to measure his
     blood alcohol concentration (BAC), the officer placed him under
     arrest.

     The officer began to transport McNeely to the station house. But
     when McNeely indicated that he would again refuse to provide a
     breath sample, the officer changed course and took McNeely to a
     nearby hospital for blood testing. The officer did not attempt to
     secure a warrant. Upon arrival at the hospital, the officer asked
     McNeely whether he would consent to a blood test. Reading from
     a standard implied consent form, the officer explained to
     McNeely that under state law refusal to submit voluntarily to the
     test would lead to the immediate revocation of his driver’s
     license for one year and could be used against him in a future
     prosecution. See Mo. Ann. Stat. §§ 577.020.1, 577.041 (West
     2011). McNeely nonetheless refused. The officer then directed a
     hospital lab technician to take a blood sample, and the sample
     was secured at approximately 2:35 a.m. Subsequent laboratory
     testing measured McNeely’s BAC at 0.154 percent, which was
     well above the legal limit of 0.08 percent. See § 577.012.1.

133 S. Ct. 1556–1557.




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       McNeely sought to suppress the results, arguing that the warrantless

blood draw violated his Fourth Amendment rights.4          The United States

Supreme Court granted certiorari to resolve the issue “whether the natural

dissipation of alcohol in the bloodstream establishes a per se exigency that

suffices on its own to justify an exception to the warrant requirement for

nonconsensual blood testing in drunk-driving investigations.” Id. at 1558.

The Court held that “in drunk-driving investigations, the natural dissipation

of alcohol in the bloodstream does not constitute an exigency in every case

sufficient to justify conducting a blood test without a warrant.” Id. at 1568.

       The McNeely Court ruled that “[i]n those driving situations where

police officers can reasonably obtain a warrant before a blood sample can be

drawn without significantly undermining the efficacy of the search, the

Fourth Amendment mandates that they do so.”         Id. at 1561.    The Court

continued:

       We do not doubt that some circumstances will make obtaining a
       warrant impractical such that the dissipation of alcohol from the
       bloodstream will support an exigency justifying a properly
       conducted warrantless blood test. That, however, is a reason to
       decide each case on its facts, as we did in Schmerber [v. State
       of California, 384 U.S. 757 (1966)], not to accept the

____________________________________________


4
  The Fourth Amendment provides: “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”
U.S. Constitution, Amend. IV.



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      “considerable overgeneralization” that a per se rule would
      reflect.

      The context of blood testing is different in critical respects from
      other destruction-of-evidence cases in which the police are truly
      confronted with a “‘now or never’” situation. In contrast to, for
      example, circumstances in which the suspect has control over
      easily disposable evidence, BAC evidence from a drunk-driving
      suspect naturally dissipates over time in a gradual and relatively
      predictable manner. Moreover, because a police officer must
      typically transport a drunk-driving suspect to a medical facility
      and obtain the assistance of someone with appropriate medical
      training before conducting a blood test, some delay between the
      time of the arrest or accident and the time of the test is
      inevitable regardless of whether police officers are required to
      obtain a warrant. … Consider, for example, a situation in which
      the warrant process will not significantly increase the delay
      before the blood test is conducted because an officer can take
      steps to secure a warrant while the suspect is being transported
      to a medical facility by another officer. In such a circumstance,
      there would be no plausible justification for an exception to the
      warrant requirement.

Id. at 1561 (internal citations omitted).

      The   Court   recognized   that    “exigent   circumstances   justifying   a

warrantless blood sample may arise in the regular course of law enforcement

due to delays from the warrant application process.” Id. at 1563. However,

the Court concluded that adopting a per se approach “would improperly

ignore the current and future technological developments in warrant

procedures.” Id. The Court opined that in a drunk-driving case, whether a

warrantless blood draw is reasonable must be determined on a case-by-case

basis, considering the totality of the circumstances. Id.

      In the present case, the trial court, relying on McNeely, concluded

“the Commonwealth failed to present competent evidence that there was an


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exigency which would have justified the officer’s decision to order a

warrantless blood draw.” Trial Court Opinion, 1/17/2014, at 7.       The trial

court explained:

      The record below is devoid of any evidence indicating that it
      would have been impracticable or infeasible for the arresting
      officer (or, for that matter, the officer who ordered the blood
      sample test at the medical facility) to obtain a warrant in the
      circumstances. Further, [Myers] was actually unconscious when
      the blood draw at issue was performed. As such, he did not have
      the opportunity to decline or refuse to have his blood sample
      taken on the date in question. [Myers] was unconscious because
      he was given Haldol upon arriving at the hospital. The arresting
      officer did not testify that he could not secure a warrant in the
      time it took to transport [Myers] to the hospital to obtain
      medical assistance. The arrest took place at approximately 3:30
      p.m. — this was not a late-night drunk driving situation where
      securing a timely warrant might have proven extremely difficult
      or even impossible. Moreover, [Myers] was given the drugs
      which rendered him unconscious at approximately 4:40 p.m.
      The blood test at issue was not performed until 5:01 p.m. The
      record is devoid of any evidence that the officers did not have
      sufficient time to seek out and secure a warrant before
      conducting this blood draw --- both prior to [Myers’] arrival at
      the hospital and to his becoming unconscious.

Trial Court Opinion, 1/17/2014, at 7–8.

      The Commonwealth argues that the trial court’s reliance on McNeely

is misplaced, because the McNeely Court did not consider the issue of

whether an implied consent law is an exception to the warrant requirement.

Relevant to this argument, the Pennsylvania implied consent statute reads,

in pertinent part:

      Any person who drives, operates, or is in actual physical control of
      the movement of a vehicle in this Commonwealth shall be
      deemed to have given consent to one or more chemical tests of
      breath, blood or urine for the purpose of determining the alcoholic

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       content of blood … if a police officer has reasonable grounds to
       believe the person to have been driving, operating or in actual
       physical control of the movement of a vehicle: … in violation of
       section … 3802 (relating to driving under the influence of alcohol
       or controlled substance) ….

75 Pa.C.S. § 1547(a)(1). Section 1547(b)(1) further provides, “if a person

placed under arrest for a violation of Section 3802 is requested to submit to

chemical testing and refuses to do so, the testing shall not be conducted, but

upon notice by the police officer, the department shall suspend the operating

privilege of the person ….” 75 Pa.C.S. § 1547(b)(1).5
____________________________________________


5
   In Commonwealth v. Eisenhart, 611 A.2d 681, 684 (Pa. 1992), the
Pennsylvania Supreme Court held that a conscious driver has the explicit
right under Section 1547(b) to refuse a blood draw. The Court explained:

       [U]nder the Implied Consent provision, Section 1547(a), testing
       is allowed absent an affirmative showing of the subject’s refusal
       to consent to the test at the time that the testing is
       administered. Moreover, his initial consent does not preclude him
       from revoking his consent to the test. The statute grants an
       explicit right to a driver who is under arrest for driving under the
       influence to refuse to consent to chemical testing. The
       relationship between the Implied Consent provision of Section
       1547(a) and the suspension for refusal under Section 1547(b) is
       such that a driver may revoke his Implied Consent under
       Subsection (a) by refusing. The sanction of the one year
       suspension for refusing to consent to the chemical testing is
       used as an incentive to induce a driver to submit to the test,
       provided the probable cause requirements of subsection (a) are
       met.

Id. at 683–684. The Eisenhart Court held that the blood test results
acquired in contravention of a driver’s right to refuse consent to blood
alcohol testing under the Motor Vehicle Code must be suppressed. The Court
specifically noted that the issue of an unconscious driver was not before it.
Id. at 684.




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       The Commonwealth maintains that under Section 1547(a)(1), where

an officer has probable cause to arrest a defendant for DUI, and an

unresponsive defendant has not affirmatively refused consent, the officer

may conduct a warrantless blood draw.              Commonwealth’s Brief at 11.   In

support, the Commonwealth cites Commonwealth v. Kohl, 615 A.2d 308

(Pa. 1992), and Commonwealth v. Keller, 823 A.2d 1004 (Pa. Super.

2003).

       In Kohl, where the unconscious defendant had his blood drawn for

DUI investigative purposes pursuant to then-existing Section 1547(a)(2),

the Pennsylvania Supreme Court held that the provision was unconstitutional

because it lacked a probable cause requirement.                The Commonwealth

argues:

       [T]he officers in Kohl did not have probable cause to believe the
       individuals were intoxicated.     The Supreme Court affirmed
       suppression. Notably, the Supreme Court clarified that implied
       consent is constitutional so long as the officer has probable
       cause, hypothesizing:      “Indeed, if the police officers had
       observed any signs of intoxication, the blood tests would have
       been authorized.” Kohl, 615 at 31[6].

Commonwealth’s Brief at 13.6



____________________________________________


6
  We are aware that the Kohl Court added to its discussion that “if the police
officers had observed any signs of intoxication, the blood tests would have
been authorized by 75 Pa.C.S.A. § 1547(a)(1).” However, as will be
discussed, the issue of Section 1547(a)(1) was not before the Kohl Court,
which addressed the constitutionality of Section 1547(a)(2).



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       The Commonwealth also relies on Keller, wherein the defendant was

involved in a one-vehicle accident. A state trooper on the scene noticed the

defendant had an odor of alcohol, as well as glassy and bloodshot eyes. Due

to his injuries, the defendant was transported to the hospital. He was read

his O’Connell7 warnings, but the trooper could not remember the

defendant’s response. State police requested a blood draw, which indicated

a BAC well in excess of the legal limit.           Under these circumstances, this

Court concluded that the implied consent provision, 75 Pa.C.S. § 1547(a)(1),

did not violate the defendant’s rights against unreasonable search and

seizure under the Pennsylvania Constitution.

       Myers relies on McNeely, and argues that because the Commonwealth

failed to show exigency or an effort to get a warrant, this Court should affirm

the trial court.       See Myers’ Brief at 6–7.           Myers argues that the

Commonwealth’s reliance on the implied consent law as a per se rule that

permits the involuntary taking of a person’s blood when there is probable

cause to believe the person committed a drunk driving offense, is

inconsistent with McNeely, which rejected a per se rule. See id. at 8.

       Moreover, Myers contends “he was deprived of his statutory right to

refuse the taking of his blood[,]” and police cannot “then use his inability to

verbally refuse as the basis to involuntarily take his blood.” Id. at 9. Myers

____________________________________________


7
 See Com., Dept. of Transp., Bureau of Traffic Safety v. O'Connell,
555 A.2d 873 (Pa. 1989).



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further argues “[Pennsylvania’s implied consent law] penalizes the refusal to

consent to a blood draw.         It does not permit the involuntary seizure of a

blood sample.” Myers’ Brief at 11–12.

        Upon review, we agree with Myers that the trial court properly denied

relief to the Commonwealth. Our reasons are as follows.

        First, in Kohl, the only issue before the Court was the constitutionality

of then-existing Section 1547(a)(2).           In addition, Keller is distinguishable

on its facts, in that the arresting officer could not remember defendant’s

response when he was advised of his right to refuse blood testing.

Furthermore, Keller discussed the interplay between the implied consent

statute and 75 Pa.C.S. § 3755,8 which is not at issue herein. Although the

Commonwealth argues that Keller applies with “full force” to the present

case “[b]ecause the officer here had probable cause to arrest for DUI and

[Myers] did not affirmatively refuse his consent,”9 the Commonwealth
____________________________________________


8
    Section 3755 provides, in pertinent part:

        If, as a result of a motor vehicle accident, the person who drove
        … 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 ….

75 Pa.C.S. § 3755.
9
    Commonwealth’s Brief at 14.




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J-A06018-15



ignores the fact that under the unique circumstances of this case, Myers

could not be warned or respond because medication administered by

hospital staff had rendered him unconscious. This fact brings us to the next

point.

         Pennsylvania’s implied consent statute provides a driver under arrest

with the statutory right of refusal to blood testing, see 75 Pa.C.S. §

1547(b)(1) (“If any person placed under arrest for a violation of section

3802 is requested to submit to chemical testing and refuses to do so, the

testing shall not be conducted ….”). As discussed, Section 1547 provides for

chemical testing when consent is not withdrawn pursuant to subsection

(b)(1), and precludes a blood draw when consent is withdrawn and imposes

penalties.10    Here, Myers was arrested for DUI and transported to the

hospital, but was not given the applicable warnings until a later time, at

which point he could not claim the statutory protection of Section

1547(b)(1).

         The facts of record show that Officer James Bragg encountered Myers

at approximately 3:30 P.M. This encounter did not result from a vehicular

accident, but rather from Officer Bragg responding to a report of a person

screaming in the area of 100 West Penn Street. Officer Bragg observed a


____________________________________________


10
   See 75 Pa.C.S. § 1547(b) (“Suspension for refusal”), and § 1547(e)
(“Refusal admissible in evidence”).




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maroon SUV in the running lane, and saw Myers exit the vehicle and stagger

toward the police vehicle. N.T., 5/21/2013, at 7–8.                   Based on Officer

Bragg’s observations, he arrested Myers for DUI, and called for a police

wagon to transport him to the hospital “because he appeared to be

intoxicated to a point where he needed medical attention.” Id. at 24. Later,

at 4:45 p.m., Officer Matthew Domenic, who was the chemical testing

officer, appeared at the hospital.11 Id. at 25.

       Officer    Domenic      observed        that   Myers    was    unconscious        and

unresponsive, and learned that Myers’ unconsciousness was due to Haldol

that   hospital     staff   had   administered        to   Myers   minutes    earlier,    at

approximately 4:40 p.m.           Id. at 27.     Officer Domenic attempted to make

contact with Myers by speaking his name and tapping him on the shoulder,

but there was no response. Officer Dominic then proceeded to give Myers

the O’Connell warnings and still receiving no response, ordered the blood

draw. The blood draw did not occur until 5:01 P.M. Id. at 27–28.

       Finally, we consider the import of McNeely. As discussed above, in

McNeely,      the    United   States    Supreme        Court   held   “in   drunk-driving

investigations, the natural dissipation of alcohol in the bloodstream



____________________________________________


11
   As we have noted, this is not a case where the hospital was required to
withdraw blood. See 75 Pa.C.S. § 3755. The Commonwealth relies solely on
the implied consent statute for the blood draw.




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does not constitute an exigency in every case sufficient to justify

conducting a blood test without a warrant.” Id. at 1568 (emphasis added).

      We recognize this case differs from McNeely where the blood draw

was nonconsensual.      Nevertheless, 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, we conclude McNeely controls here.

Further, we agree with the trial court that the Commonwealth failed to

justify the failure to obtain a warrant prior to the 5:01 p.m. blood draw.

Therefore, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2015




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