                             [J-29-2019] [MO: Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                  :    No. 26 WAP 2018
                                                :
                      Appellee                  :    Appeal from the Order of the Superior
                                                :    Court entered February 14, 2018 at
                                                :    No. 158 WDA 2017, affirming the
               v.                               :    Order of the Court of Common Pleas
                                                :    of Somerset County entered
                                                :    December 22, 2016, at No. CP-56-
 JEFFREY ALAN OLSON,                            :    CR-0000544-2015.
                                                :
                      Appellant                 :    ARGUED: April 10, 2019


                                  CONCURRING OPINION


JUSTICE MUNDY                                       DECIDED: OCTOBER 31, 2019


       I join the majority’s holding that Birchfield v. North Dakota, __ U.S. __, 136 S.Ct.

2160 (2016), announced a new procedural rule that does not apply retroactively to

matters on collateral review. I write to distance myself from the majority’s discussion

casting doubt on what it has indicated is the “potential applicability” of the exigent

circumstances exception to the warrant requirement in the DUI arena. Majority Op. at 14-

15.

       As the majority notes, the Birchfield Court explicitly acknowledged the exigent

circumstances exception was a viable exception to the Fourth Amendment warrant

requirement when it noted the validity of a search “may be established by a demonstration

of exigent circumstances.” Id. at 15 (citing Birchfield, 136 S.Ct. at 2186 (noting “North

Dakota has not presented any case-specific information to suggest that the exigent

circumstances exception would have justified a warrantless test of Birchfield’s blood[.]”)).
The Birchfield Court did not question the continuing validity of applying exigent

circumstances analysis to Fourth Amendment warrant requirements in DUI cases, noting

that Schmerber v. California, 384 U.S. 757 (1966), “adopted a case-specific analysis

depending on ‘all of the facts and circumstances of the particular case.’” Birchfield, 136

S.Ct. at 2173. The Court further reasoned, this approach was reaffirmed in Missouri v.

McNeely, 569 U.S. 141 (2013), when the Court opted not to adopt a rule of per se

exigency based solely on the dissipation of alcohol in the blood, and rather “refused to

‘depart from careful case-by-case assessment of exigency[.]’”          Id. at 2174 (citing

McNeely, 569 U.S. 142). Further, in Mitchell v. Wisconsin, __ U.S. __, 139 S.Ct. 2525

(2019) (plurality), the Supreme Court reiterated that “an officer may conduct a BAC test if

the facts of a particular case bring it within the exigent-circumstances exception to the

Fourth Amendment’s general requirement of a warrant.” Id. at 2531.

       Despite the concerns raised in this matter, the validity of the exigent circumstances

exception to the warrant requirement and the interplay of the amendment to Section 3804

which criminalizes “refusing . . . testing of blood pursuant to a valid search warrant[,]”

would be better left to a future discussion in an appropriate case. See Majority Op. at 15;

Dissenting Op. (Saylor, C.J.) at 2 (citing 75 Pa.C.S. § 3804(c)). Accordingly, I distance

myself from any analysis of the viability of the exigent circumstances exception. I join the

majority in all other respects.




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