                         [J-103-2018] [MO: Dougherty, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                :   No. 11 MAP 2018
                                              :
                     Appellee                 :   Appeal from the Order of the Superior
                                              :   Court at No. 1490 MDA 2016, dated
                                              :   July 19, 2017, Reconsideration
              v.                              :   Denied September 26, 2017,
                                              :   Reversing the Order of the Court of
                                              :   Common Pleas of Lycoming County,
 THOMAS S. BELL,                              :   Criminal Division, at No. CP-41-CR-
                                              :   0001098-2015, dated August 19, 2016
                     Appellant                :   and Remanding for Sentencing.
                                              :
                                              :   SUBMITTED: November 30, 2018


                                 DISSENTING OPINION


JUSTICE WECHT                                                 DECIDED: July 17, 2019
      In Missouri v. McNeely, 569 U.S. 141 (2013), and Birchfield v. North Dakota, __

U.S. __, 136 S.Ct. 2160 (2016), the Supreme Court of the United States altered the Fourth

Amendment paradigm in DUI investigations. The conclusions that the Court reached,

particularly in Birchfield, have a substantial ripple effect upon numerous other questions

of constitutional dimension.

      Although Birchfield answers quite clearly the question upon which the Court

granted certiorari, the Court’s discussion regarding the concept of “implied consent” is

puzzling. The Birchfield Court’s opacity on this point prompted substantial disagreement

among the members of this Court in Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017),

and we at that time were unable to reach a consensus regarding the impact of the

Birchfield decision upon Pennsylvania law. This Court has resolved certain unanswered

questions relating to matters such as the legality of a criminal sentence that implicates
Birchfield. See Commonwealth v. Monarch, 200 A.3d 51 (Pa. 2019). However, since

Myers, this Court has not had an opportunity to address several other legal questions that

remain unresolved in Birchfield’s wake. These questions relate to the voluntariness of

consent, driver’s license suspension, and admissibility of evidence. In this case, we

address the “evidentiary consequence,” Birchfield, 136 S.Ct. at 2185, set forth in 75

Pa.C.S. § 1547(e), which allows the Commonwealth to introduce evidence at trial of a

motorist’s refusal to consent to a warrantless blood draw, thus suggesting consciousness

of guilt.

        It is evident to me that all of these unanswered questions, including the question

at bar, have the same answer. The answer is that a blood test, unlike a breath test, is an

intrusive manner of Fourth Amendment search, for which there is no readily available

exception to the Fourth Amendment’s warrant requirement. As such, under established

constitutional doctrine, an individual has a right to refuse such a warrantless search, and

the exercise of that right may not be penalized, coerced, burdened, manipulated, or

involuntarily bargained away by the State. The Fourth Amendment need not be strained

to reach a contrary conclusion, because the evidence that is sought remains available,

and the legislative measures designed to secure that evidence all remain permissible.

Police officers merely must obtain search warrants for blood tests, or resort to the exigent

circumstances exception when they cannot. Because, in this case, the failure to obtain a

search warrant rendered the blood test unconstitutional, Thomas Bell had a constitutional

right to refuse to consent to that search, and the use of his refusal as evidence of his guilt

placed an impermissible burden upon the exercise of Bell’s Fourth Amendment rights.

        My reasoning follows.




                           [J-103-2018] [MO: Dougherty, J.] - 2
       I.     Constitutional Right to Refuse Consent to an Invalid Search

       The instant case implicates constitutional issues that were not before the Court in

McNeely or Birchfield. These decisions nonetheless impact the question presented here,

so we must survey the legal landscape as it now stands in light of the Court’s analyses in

these cases. When a motorist is suspected of DUI, testing of the motorist’s blood alcohol

concentration (“BAC”) is the primary means by which police officers obtain evidence of

the motorist’s crime. Such testing typically requires a sample of the motorist’s breath or

blood. Breath tests and blood tests both indisputably constitute searches under the

Fourth Amendment. See Birchfield, 136 S.Ct. at 2173 (citing Skinner v. Ry. Labor Execs.’

Ass’n., 489 U.S. 602, 616-17 (1989); Schmerber v. California, 384 U.S. 757, 767-68

(1966)).

       Even in the absence of a search warrant, such tests once were viewed as

constitutional pursuant to Schmerber, wherein the Court held that a warrantless blood

test was permissible because, in light of the constant dissipation of alcohol from the

bloodstream, the officer who arrested a motorist suspected of DUI “might reasonably have

believed that he was confronted with an emergency, in which the delay necessary to

obtain a warrant, under the circumstances, threatened the destruction of evidence.”

Schmerber, 384 U.S. at 770 (citation and quotation marks omitted).             Generalized

acceptance of this theory was particularly understandable following the Court’s dictum in

South Dakota v. Neville, 459 U.S. 553 (1983), wherein the Court—addressing whether

evidence of a motorist’s refusal to comply is “testimonial” for purposes of the Fifth

Amendment right against self-incrimination—stated broadly that “Schmerber . . . clearly

allows a State to force a person suspected of driving while intoxicated to submit to a blood

alcohol test.” Neville, 459 U.S. at 559.




                           [J-103-2018] [MO: Dougherty, J.] - 3
       However, in McNeely, the Court clarified Schmerber, holding that “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.” McNeely, 569 U.S. at 165.

Crucial to the McNeely Court’s reasoning were the “advances in the 47 years since

Schmerber was decided that allow for the more expeditious processing of warrant

applications” such as the remote communication with a magistrate by telephone, radio,

e-mail, and video-conference, as well as “other ways to streamline the warrant process,

such as by using standard-form warrant applications for drunk-driving investigations.”

McNeely, 569 U.S. at 154-55. In other words, when Schmerber was decided, time

constraints created a greater need for an exception from the warrant requirement than

exists today, with the advent of technology that makes the acquisition of a search warrant

easier and more expeditious than ever before.

       Following McNeely, although the dissipation of BAC evidence “may support a

finding of exigency in a specific case, as it did in Schmerber, it does not do so

categorically.” Id. at 156.1 Rather, “[w]hether a warrantless blood test of a drunk-driving

suspect is reasonable must be determined case by case based on the totality of the

circumstances.” Id. A question arose: whether warrantless BAC testing may be justified

categorically upon the basis of a different exception to the warrant requirement, such as

consent or the search-incident-to-arrest doctrine? Enter Birchfield.


1       As discussed further below, infra n.9, a plurality of the Supreme Court of the United
States now has concluded that, in the particular circumstance in which a motorist
suspected of DUI is unconscious, the exigent circumstances exception to the warrant
requirement generally will apply. Mitchell v. Wisconsin, __ U.S. __, 139 S.Ct. 2525 (2019)
(plurality). This ruling, however, does not alter McNeely’s application to conscious
motorists, nor does it provide any clarity with regard to the question presently at bar.
Further, because we do not here consider a blood draw conducted upon an unconscious
motorist, Mitchell does not inform the analysis with regard to the threshold question of
whether the search compelled in this case was permissible under the Fourth Amendment
or Article I, Section 8 of the Pennsylvania Constitution.


                           [J-103-2018] [MO: Dougherty, J.] - 4
       The Birchfield decision began with a discussion of the history, purpose, and

operation of “implied consent” laws, which are designed to encourage a motorist’s

cooperation with BAC testing. “Because the cooperation of the test subject is necessary

when a breath test is administered and highly preferable when a blood sample is taken,

the enactment of laws defining intoxication based on BAC made it necessary for States

to find a way of securing such cooperation. So-called ‘implied consent’ laws were enacted

to achieve this result.” Birchfield, 136 S.Ct. at 2168-69.

       Although the typical consequences of refusal include suspension or revocation of

a motorist’s driver’s license and the admission of evidence of the motorist’s refusal in a

subsequent prosecution, the Court observed that “some States have begun to enact laws

making it a crime to refuse to undergo testing.” Id. at 2169. Importantly, it was the

question of the constitutionality of criminal punishment for refusal to submit to a

warrantless BAC test—and not the other consequences imposed under implied consent

schemes—upon which the Court granted certiorari.             See id. at 2172 (“We granted

certiorari . . . in order to decide whether motorists lawfully arrested for drunk driving may

be convicted of a crime or otherwise penalized for refusing to take a warrantless test

measuring the alcohol in their bloodstream.”).

       After observing the differences between the facts of the three petitioners’ cases—

Birchfield refused a blood test and was convicted of a crime; Bernard refused a breath

test and was convicted of a crime; and Beylund submitted to a blood test and his driver’s

license was suspended based upon his BAC—the Court articulated the framework for

resolving the constitutional question at issue. The Court premised its ratio decidendi upon

the following inquiry:

       Despite these differences, success for all three petitioners depends on the
       proposition that the criminal law ordinarily may not compel a motorist to
       submit to the taking of a blood sample or to a breath test unless a warrant
       authorizing such testing is issued by a magistrate. If, on the other hand,


                           [J-103-2018] [MO: Dougherty, J.] - 5
        such warrantless searches comport with the Fourth Amendment, it follows
        that a State may criminalize the refusal to comply with a demand to submit
        to the required testing, just as a State may make it a crime for a person to
        obstruct the execution of a valid search warrant.


Id.   “And by the same token,” the Court added, “if such warrantless searches are

constitutional, there is no obstacle under federal law to the admission of the results that

they yield in either a criminal prosecution or a civil or administrative proceeding.” Id. at

2173.

        Under Birchfield, the validity of the search is dispositive of the lawfulness of the

penalty. Accordingly, the Court began its analysis “by considering whether the searches

demanded in these cases were consistent with the Fourth Amendment.” Id. The Court

spent the vast majority of its analysis upon the search-incident-to-arrest doctrine as an

exception to the Fourth Amendment’s warrant requirement, ultimately arriving at the

critical distinction for which the Birchfield decision is now known: “Because breath tests

are significantly less intrusive than blood tests and in most cases amply serve law

enforcement interests, . . . a breath test, but not a blood test, may be administered as a

search incident to a lawful arrest for drunk driving.” Id. at 2185. Because a breath test

falls within the search-incident-to-arrest doctrine, it is a valid search, and a state “may

criminalize the refusal to comply . . . just as a State may make it a crime for a person to

obstruct the execution of a valid search warrant.” Id. at 2172. Thus, Bernard lawfully

could be punished for his refusal to comply with a warrantless breath test. “That test was

a permissible search incident to Bernard’s arrest for drunk driving . . . . Accordingly, the

Fourth Amendment did not require officers to obtain a warrant prior to demanding the test,

and Bernard had no right to refuse it.” Id. at 2186 (emphasis in original).

        “Blood tests are a different matter.” Id. at 2178. The Court reasoned that, due to

the necessity of piercing the skin to extract a vital bodily fluid, due to the increased

expectation of privacy in blood as compared to breath, and due to the quantum of


                           [J-103-2018] [MO: Dougherty, J.] - 6
information that may be gleaned from a blood sample beyond a mere BAC reading, a

blood test is qualitatively different from a breath test. Id. “Blood tests are significantly

more intrusive, and their reasonableness must be judged in light of the availability of the

less invasive alternative of a breath test.”    Id. at 2184.    The Court added that the

government had “offered no satisfactory justification for demanding the more intrusive

alternative without a warrant.” Id. Thus, the Court held that blood tests do not qualify for

categorical exception from the warrant requirement under the search-incident-to-arrest

doctrine.

       After concluding that blood tests are too invasive to fall within the search-incident-

to-arrest exception to the warrant requirement, the Birchfield Court turned to the viability

of “implied consent” laws as an alternative justification for warrantless blood draws. The

Court’s comparatively terse rejection of the proposition has engendered substantial

confusion. The Court reasoned:

       Having concluded that the search incident to arrest doctrine does not justify
       the warrantless taking of a blood sample, we must address respondents’
       alternative argument that such tests are justified based on the driver’s
       legally implied consent to submit to them. It is well established that a search
       is reasonable when the subject consents, e.g., Schneckloth v. Bustamonte,
       412 U.S. 218, 219 (1973), and that sometimes consent to a search need
       not be express but may be fairly inferred from context, cf. Florida v.
       Jardines, 569 U.S. 1, 133 S.Ct. 1409, 1415-16 (2013); Marshall v. Barlow’s,
       Inc., 436 U.S. 307, 313 (1978). 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., McNeely, 133 S.Ct. 1552, 1565-66 (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.

       It is another matter, however, for a State not only to insist upon an intrusive
       blood test, but also to impose criminal penalties on the refusal to submit to
       such a test. There must be a limit to the consequences to which motorists
       may be deemed to have consented by virtue of a decision to drive on public
       roads.



                           [J-103-2018] [MO: Dougherty, J.] - 7
Id. at 2185 (citations modified). Applying the Fourth Amendment’s governing standard of

“reasonableness,” the Court held “that motorists cannot be deemed to have consented to

submit to a blood test on pain of committing a criminal offense.” Id. at 2186.

       An important observation must be made at this juncture. Post-Birchfield, this Court

and many others have considered arguments suggesting that, pursuant to this passage

of Birchfield, warrantless blood tests conducted under implied consent schemes do not

violate the Fourth Amendment, so long as refusal does not trigger the imposition of

criminal punishment. Such is the view of the Supreme Court of Vermont, upon which

today’s Majority relies. See Majority Opinion at 21 (quoting State v. Rajda, 196 A.3d

1108, 1121 (Vt. 2018) (“In Birchfield, the U.S. Supreme Court has ruled, with respect to

the more invasive blood test, that only criminalizing the revocation of implied consent

crosses the line in terms of impermissibly burdening the Fourth Amendment.”)); see also

Fitzgerald v. People, 394 P.3d 671, 676 (Colo. 2017) (“[T]he Supreme Court has all but

said that anything short of criminalizing refusal does not impermissibly burden or penalize

a defendant’s Fourth Amendment right to be free from an unreasonable warrantless

search.”).

       Accepting this position requires us to foist upon Birchfield an untenable reading of

the Court’s reasoning.      Recall the Birchfield Court’s heuristic for resolving the

constitutional question upon which it granted certiorari: “that the criminal law ordinarily

may not compel a motorist to submit to the taking of a blood sample or to a breath test”

without a warrant, unless “such warrantless searches comport with the Fourth

Amendment,” in which case, “a State may criminalize the refusal to comply with a demand

to submit to the required testing, just as a State may make it a crime for a person to

obstruct the execution of a valid search warrant.” Birchfield, 136 S.Ct. at 2172. That is,

the validity of the search is dispositive of the lawfulness of the penalty for refusal to




                          [J-103-2018] [MO: Dougherty, J.] - 8
cooperate—not the other way around. A State may penalize the obstruction of a valid

search, but it may not penalize an individual for refusing to acquiesce to an

unconstitutional search or seizure.

       If we understand Birchfield as holding that warrantless blood draws “comport with

the Fourth Amendment,” id., provided that no criminal penalties attend refusal, then

Birchfield cannot be reconciled with itself. If such a search is valid, then its obstruction

may be penalized, “just as a State may make it a crime for a person to obstruct the

execution of a valid search warrant.” Id. But those penalties, under this constricted

understanding of Birchfield’s holding, would render the search invalid. Strike out the

penalties, and the search again would be valid. But as a valid search, it would be

permissible to penalize its obstruction. This circular exercise continues ad infinitum,

rendering Birchfield incoherent by its own terms.2

       Avoiding the Birchfield paradox requires only that we recognize what is implicit in

Birchfield’s reasoning: absent exigent circumstances, a warrantless blood test generally

does not “comport with the Fourth Amendment.” Id. A breath test is categorically valid

without a warrant, but a blood test is not. This was the “compromise” that the Court

reached. See id. at 2198 (Thomas, J., dissenting). The Court’s thoroughly reasoned

distinctions between breath and blood were all in service of that compromise. At least



2       With respect to this observation, the Majority asserts that I have “manufacture[d]
an illusory circularity problem where one does not exist.” Majority Opinion at 22 n.14.
The problem is not of my making. Quite simply, the Birchfield Court determined that
criminal penalties lawfully may attach to the refusal to submit to a valid search. See
Birchfield, 136 S.Ct. at 2172. The Court then concluded (within its discussion of the
government’s alternative “implied consent” argument) that criminal penalties cannot
attach to the refusal to submit to a warrantless blood test. Id. at 2186. It follows that a
warrantless blood test cannot be deemed categorically valid because, otherwise, the
criminal penalties that the Court forbade would be permissible by its own rationale. What
the Majority characterizes as “an illusory circularity problem where one does not exist,” I
would call Birchfield’s ratio decidendi.


                           [J-103-2018] [MO: Dougherty, J.] - 9
some consequences of that compromise are straightforward. Upon lawful arrest of a DUI

suspect, police officers may demand submission to a breath test—without a search

warrant—in every case. Birchfield holds that this manner of search “in most cases amply

serve[s] law enforcement interests.” Id. at 2185. Because a breath test is a valid search,

refusal to submit may be criminally punished. Id. at 2186. As for blood testing, we are

left with a warrantless Fourth Amendment search wanting for an exception.

       Although statutorily “implied consent” may appear facially to be a viable path to a

warrant exception, for all the reasons discussed in our plurality opinion in Commonwealth

v. Myers, 164 A.3d 1162 (Pa. 2017) (plurality), and others, this theory is incompatible with

the Fourth Amendment. It bears mention that the Supreme Court of the United States

has never held that a motorist may be subjected to a warrantless blood draw solely upon

the basis that he or she “consented” to such an intrusion by obtaining a driver’s license

or by driving on public roads. Birchfield certainly does not stand for such a proposition.

Indeed, the suggestion that the mere omission of criminal penalties renders a blood draw

constitutional under “implied consent” results in the aforementioned paradox—that

obstruction of a valid search may be penalized but imposing those penalties renders the

search invalid.

       Birchfield further undermines the “implied consent” suggestion. In discussing the

different benefits that each manner of testing may provide, the Court noted that, unlike a

breath test, a blood test can detect substances other than alcohol that may impair the

motorist’s ability to operate a vehicle safely. The Court reasoned that “[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.” Birchfield, 136 S.Ct. at 2184 (emphasis

added).   Similarly, the Court noted that, unlike a breath test, a blood test may be




                          [J-103-2018] [MO: Dougherty, J.] - 10
administered to a person who is unconscious. The Court stated that it had “no reason to

believe that such situations are common in drunk-driving arrests, and when they arise,

the police may apply for a warrant if need be.” Id. at 2185 (emphasis added). Finally, a

blood test may be necessary where a motorist foils a breath test by failing to provide a

sufficient sample. The Court noted that such conduct may constitute a refusal to comply

with breath testing and may be prosecuted as such. “And again, a warrant for a blood

test may be sought.” Id.3 The Court did not suggest at any point that warrantless blood

testing may be permissible upon the basis of a statutory implied consent provision alone.

No decision of the High Court ever has so held.

       It is incongruous to conclude that a blood test is too intrusive, and compromises

privacy interests too much, to qualify for categorical treatment under the search-incident-

to-arrest exception to the warrant requirement, yet may be given categorical treatment


3        The Majority characterizes Birchfield’s discussions of the distinctions between
breath testing and blood testing as “dicta” that I have found “useful.” Majority Opinion at
22 n.14. I must respectfully disagree with this characterization. Dictum is a “judicial
comment made while delivering a judicial opinion, but one that is unnecessary to the
decision in the case and therefore not precedential (although it may be considered
persuasive).” Obiter dictum, BLACK’S LAW DICTIONARY (10th ed. 2014). The distinctions
between breath testing and blood testing, and the relative benefits of each manner of
search, were directed toward the Court’s dispositive conclusions that breath tests “in most
cases amply serve law enforcement interests,” Birchfield, 136 S.Ct. at 2185; that the
necessity of a blood draw “must be judged in light of the availability of the less invasive
alternative of a breath test,” id. at 2184; that the government had “offered no satisfactory
justification for demanding the more intrusive alternative without a warrant,” id.; and,
ultimately, the Court’s conclusion that blood tests do not qualify for categorical exception
from the warrant requirement under the search-incident-to-arrest doctrine. Id. at 2185.
Indeed, the drawing of a constitutionally significant distinction between breath testing and
blood testing was the very core of Birchfield’s holding. If these passages are “dicta,” it is
difficult to discern what is not.
       By contrast, and by way of illustration, any suggestion in Birchfield regarding the
continued constitutional validity of “civil penalties and evidentiary consequences”
imposed upon motorists for refusal to consent to a warrantless blood test—issues that
were not before the Court and not essential to its holding—is more properly characterized
as dictum. Id.


                          [J-103-2018] [MO: Dougherty, J.] - 11
under the consent exception. Indeed, comparing the search-incident-to-arrest doctrine

to the exception for exigent circumstances, the Birchfield Court noted that the exigent

circumstances exception “has always been understood to involve an evaluation of the

particular facts of each case.” Id. at 2183. By contrast, the Court noted, under the search-

incident-to-arrest exception, the “authority is categorical.”      Id.   Like the exigent

circumstances exception, the consent exception always has been understood to require

an evaluation of the particular facts of each case, under the totality of the circumstances.

See Schneckloth, 412 U.S. at 248-49 (“Voluntariness is a question of fact to be

determined from all the circumstances.”); Birchfield, 136 S.Ct. at 2186 (“voluntariness of

consent to a search must be ‘determined from the totality of all the circumstances’”)

(quoting Schneckloth, 412 U.S. at 227). It would seem that insulating the more intrusive

blood test from such categorical treatment was the very purpose of the Birchfield Court’s

distinction between breath testing and blood testing and its decision to exclude blood

testing from the search-incident-to-arrest doctrine. If every motorist categorically may be

deemed to have consented to this more intrusive form of search, then the Court’s

distinction serves little purpose indeed.

       One might construe statutory “implied consent” to require that a motorist’s Fourth

Amendment rights be curtailed as a condition of exercising the privilege of driving, or that

the decision to exercise that privilege establishes a motorist’s consent to blood testing.

See Myers, 164 A.3d at 1182 (Saylor, C.J., concurring) (“[I]t seems to me that the

voluntary act of operating a vehicle suffices to establish the initial consent to chemical

testing.”)   However, this understanding of “implied consent” is in tension with the

unconstitutional conditions doctrine. As the Supreme Court of the United States recently

explained, the unconstitutional conditions doctrine “vindicates the Constitution’s

enumerated rights by preventing the government from coercing people into giving them




                          [J-103-2018] [MO: Dougherty, J.] - 12
up.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013). “[T]he

government may not deny a benefit to a person because he exercises a constitutional

right.” Id. (quoting Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545

(1983)). The Supreme Court has applied the doctrine “in a variety of contexts” and to

constitutional rights as varied as land ownership, freedom of speech, and the right to

travel. Id. (citing Perry v. Sindermann, 408 U.S. 593 (1972) (speech); Mem’l Hosp. v.

Maricopa Cty., 415 U.S. 250 (1974) (travel)).

      Under the unconstitutional conditions doctrine, it is immaterial that driving an

automobile is a privilege rather than a fundamental right. See Majority Opinion at 12-13

(citing PennDOT v. Scott, 684 A.2d 539, 544 (Pa. 1996)). As the Supreme Court of the

United States has explained:

      Virtually all of our unconstitutional conditions cases involve a gratuitous
      governmental benefit of some kind. See, e.g., Regan, 461 U.S. 540 (tax
      benefits); Mem’l Hosp., 415 U.S. 250 (healthcare); Perry, 408 U.S. 593
      (public employment); United States v. Butler, 297 U.S. 1, 71 (1936) (crop
      payments); Frost & Frost Trucking Co. v. R.R. Comm’n of Cal., 271 U.S.
      583 (1926) (business license). Yet we have repeatedly rejected the
      argument that if the government need not confer a benefit at all, it can
      withhold the benefit because someone refuses to give up constitutional
      rights. E.g., United States v. Am. Library Assn., Inc., 539 U.S. 194, 210
      (2003) (“[T]he government may not deny a benefit to a person on a basis
      that infringes his constitutionally protected . . . freedom of speech even if he
      has no entitlement to that benefit” (emphasis added and internal quotation
      marks omitted)); Wieman v. Updegraff, 344 U.S. 183, 191 (1952)
      (explaining in unconstitutional conditions case that to focus on “the facile
      generalization that there is no constitutionally protected right to public
      employment is to obscure the issue”).


Koontz, 570 U.S. at 608 (citations modified). Under this doctrine, and notwithstanding

that driving an automobile is a privilege or a “gratuitous government benefit,” id., the

government cannot condition the exercise of this privilege upon motorists’ relinquishment

of their Fourth Amendment rights. The High Court in Frost long ago reasoned:




                         [J-103-2018] [MO: Dougherty, J.] - 13
       It would be a palpable incongruity to strike down an act of state legislation
       which, by words of express divestment, seeks to strip the citizen of rights
       guaranteed by the federal Constitution, but to uphold an act by which the
       same result is accomplished under the guise of a surrender of a right in
       exchange for a valuable privilege which the state threatens otherwise to
       withhold. It is not necessary to challenge the proposition that, as a general
       rule, the state, having power to deny a privilege altogether, may grant it
       upon such conditions as it sees fit to impose. But the power of the state in
       that respect is not unlimited, and one of the limitations is that it may not
       impose conditions which require the relinquishment of constitutional rights.
       If the state may compel the surrender of one constitutional right as a
       condition of its favor, it may, in like manner, compel a surrender of all. It is
       inconceivable that guaranties embedded in the Constitution of the United
       States may thus be manipulated out of existence.


Frost, 271 U.S. at 593-94.

       For all these reasons, implied consent does not pass muster as a basis for

dispensing with the warrant requirement for blood tests, or for demanding that a motorist

relinquish his or her Fourth Amendment rights upon occupying the driver’s seat of an

automobile.4 Absent exigent circumstances, we are left with actual, voluntary consent as

4       Bell placed the unconstitutional conditions doctrine at issue from the inception of
this case. Although the Majority quotes from Bell’s pre-trial motion to dismiss, it excises
Bell’s citation to the unconstitutional conditions doctrine. Compare Majority Opinion at 11
(quoting Motion to Dismiss, 3/8/2016, at 2) (“Pennsylvania’s Implied Consent Law violates
Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the
United States Constitution[,]”) with Motion to Dismiss, 3/8/2016, at 2 (“Pennsylvania’s
Implied Consent Law violates Article 1, Section 8 of the Pennsylvania Constitution and
the Fourth Amendment to the United States Constitution under the Unconstitutional
Conditions Doctrine.”) (emphasis added). Regardless, I do not discuss the doctrine as a
separate issue or independent basis for granting relief, but, rather, merely for the purpose
of articulating fully my conclusion on the threshold issue that underlies the question at
bar: that there is no categorical basis upon which to dispense with the warrant
requirement for blood testing and, thus, no valid Fourth Amendment search as to which
a motorist’s cooperation lawfully may be compelled.
The Majority opines that the unconstitutional conditions doctrine is “inapplicable”
because, due to the statutory right to refuse chemical testing under 75 Pa.C.S. § 1547(b),
the “implied consent law does not condition the privilege of driving upon a motorist’s
submission to future warrantless blood testing.” Majority Opinion at 20 n.12. To the
contrary, this is precisely what the implied consent law does. The statute indeed provides
a right of refusal, which allows a motorist to avoid the circumstance in which a blood



                          [J-103-2018] [MO: Dougherty, J.] - 14
the only possible justification for the failure to obtain a search warrant prior to conducting

a blood draw. This is precisely the inquiry that Birchfield left open when remanding

petitioner Beylund’s case:

       The North Dakota Supreme Court held that Beylund’s consent was
       voluntary on the erroneous assumption that the State could permissibly
       compel both blood and breath tests. Because voluntariness of consent to
       a search must be ‘determined from the totality of all the circumstances,’
       Schneckloth, 412 U.S. at 227, we leave it to the state court on remand to
       reevaluate Beylund’s consent given the partial inaccuracy of the officer’s
       advisory.


Birchfield, 136 S.Ct. at 2186 (citation modified).

       One observation is obvious: an individual has a constitutional right to refuse to

consent to a search that is not authorized by a warrant or a valid exception to the warrant

requirement. Although “the subject’s knowledge of a right to refuse” is not “a prerequisite

to establishing a voluntary consent,” Schneckloth, 412 U.S. at 249, it is nonetheless

inherent in the request for consent that the individual retains a right to decline. For this

reason, the Superior Court in the instant case patently erred in concluding that Bell “had

no constitutional right to refuse a [warrantless] blood test upon his lawful arrest for DUI.”

Commonwealth v. Bell, 167 A.3d 744, 749 (Pa. Super. 2017).

       For this conclusion, the Superior Court relied principally upon a statement to that

effect in Neville. See Neville, 459 U.S. at 560 n.10 (“[A] person suspected of drunk driving

has no constitutional right to refuse to take a blood-alcohol test.”). However, as noted

above, Neville addressed only whether evidence of refusal is “testimonial” for purposes


sample is taken forcibly and against the motorist’s will. Nonetheless, the statutory
scheme, as written, unequivocally demands that a motorist submit to warrantless blood
testing. Upon the motorist’s invocation of the statutory right of refusal, the Commonwealth
will “suspend the operating privilege” of the motorist. 75 Pa.C.S. § 1547(b)(1). In other
words, the statute unambiguously conditions the privilege of operating a motor vehicle
upon the motorist’s submission to warrantless blood testing.


                           [J-103-2018] [MO: Dougherty, J.] - 15
of the Fifth Amendment’s right against self-incrimination.           Neville had no Fourth

Amendment component. Accordingly, any comment in Neville regarding the validity of a

warrantless blood test under the Fourth Amendment is dictum. Moreover, Neville’s

commentary on this matter was premised upon the notion that “Schmerber . . . clearly

allows a State to force a person suspected of driving while intoxicated to submit to a blood

alcohol test.” Id. at 559. As noted above, McNeely squarely rejected this categorical

understanding of Schmerber. Accordingly, the Superior Court not only relied upon dicta

for its essential legal conclusion, but outdated dicta that is irreconcilable with McNeely

and Birchfield.    Here, there was no search warrant, no demonstration of exigent

circumstances, and no other valid exception to the warrant requirement. Accordingly, Bell

had a constitutional right to refuse to consent to the unconstitutional search.

       II.     Penalization of the Exercise of a Constitutional Right

       Notwithstanding the fact that the blood test requested of Bell was unconstitutional,

authorized by neither a search warrant nor a valid exception to the warrant requirement,

was it permissible to introduce evidence of Bell’s refusal at trial to prove his

consciousness of guilt? To answer this question in the affirmative is to disregard the

Supreme Court of the United States’ repeated proclamations that a State may not

penalize the exercise of individual constitutional rights.

       “It has long been established that a State may not impose a penalty upon those

who exercise a right guaranteed by the Constitution.” Harman v. Forssenius, 380 U.S.

528, 540 (1965) (citing Frost, 271 U.S. 583). “‘Constitutional rights would be of little value

if they could be . . . indirectly denied’ or ‘manipulated out of existence.’” Id. (quoting Smith

v. Allwright, 321 U.S. 649, 664 (1944), and Gomillion v. Lightfoot, 364 U.S. 339, 345

(1960)).     Thus, in Griffin v. California, 380 U.S. 609 (1965), the Court held that

prosecutorial commentary and trial court instructions that raise an inference of guilt based




                           [J-103-2018] [MO: Dougherty, J.] - 16
upon a defendant’s exercise of his constitutional right not to testify violate the Fifth

Amendment’s right against self-incrimination. The Griffin Court reasoned that the use of

a defendant’s silence in this manner “is a penalty imposed by courts for exercising a

constitutional privilege.” Id. at 614. “It cuts down on the privilege by making its assertion

costly.” Id. The Court held that so burdening the exercise of a right is repugnant to the

Constitution.

       It is true that Griffin, like Neville, was a Fifth Amendment decision, not premised

upon the Fourth Amendment.          However, the Supreme Court has extended Griffin’s

reasoning beyond the self-incrimination context to a wholly distinct constitutional right—

the Sixth Amendment right to a jury trial. In United States v. Jackson, 390 U.S. 570

(1968), the Court addressed the constitutionality of a provision of the then-applicable

Federal Kidnaping Act, which authorized the death penalty “if the verdict of the jury shall

so recommend,” but contained “no procedure for imposing the death penalty upon a

defendant who waives the right to jury trial or upon one who pleads guilty.” Id. at 571.

The Court reasoned that the statutory language unconstitutionally disincentivized the

defendant’s exercise of the right to a jury trial:

       Whatever might be said of Congress’ objectives, they cannot be pursued by
       means that needlessly chill the exercise of basic constitutional rights. The
       question is not whether the chilling effect is ‘incidental’ rather than
       intentional; the question is whether that effect is unnecessary and therefore
       excessive.


Id. at 582. Citing Griffin, the Jackson Court held that, “[w]hatever the power of Congress

to impose a death penalty for violation of the Federal Kidnaping Act, Congress cannot

impose such a penalty in a manner that needlessly penalizes the assertion of a

constitutional right.” Id. at 583. Accordingly, the Court has not limited the rule of Griffin

to the right against self-incrimination, but, rather, has signaled that Griffin embodies the




                           [J-103-2018] [MO: Dougherty, J.] - 17
High Court’s broad disapproval of State action that “impose[s] a penalty upon those who

exercise a right guaranteed by the Constitution.” Harman, 380 U.S. at 540.

       Both this Court and our Superior Court, as well as numerous courts of our sister

states, have applied similar reasoning in the Fourth Amendment context, and have held

that the use of an individual’s refusal to consent to a warrantless, unjustified search

cannot be used as evidence of consciousness of guilt at trial. In Commonwealth v. Welch,

585 A.2d 517 (Pa. Super. 1991), our Superior Court held that trial testimony regarding a

defendant’s refusal to consent to a search of her bedroom unduly burdened her Fourth

Amendment rights. The court reasoned:

       As we read the various comments made by the courts regarding the
       assertion of one’s Fifth Amendment right, the overriding tone is that it is
       philosophically repugnant to the extension of constitutional rights that
       assertion of that right be somehow used against the individual asserting it.
       Although the cases have discussed the Fifth Amendment right we see no
       reason to treat one’s assertion of a Fourth Amendment right any differently.
       It would seem just as illogical to extend protections against unreasonable
       searches and seizures, including the obtaining of a warrant prior to
       implementing a search, and to also recognize an individual’s right to refuse
       a warrantless search, yet allow testimony regarding such an assertion of
       that right at trial in a manner suggesting that it is indicative of one’s guilt.


Id. at 519.

       This Court recently reached the same conclusion in Commonwealth v. Chapman,

136 A.3d 126 (Pa. 2016). In Chapman, a capital direct appeal, this Court addressed the

defendant’s claim that “his constitutionally protected refusal to voluntarily surrender a

DNA sample to investigators was wrongfully used against him at trial.” Id. at 129. We

rejected the defendant’s assertion that commentary upon his failure to consent to a

search violated his Fifth Amendment right against self-incrimination, but noted that “the

circumstances presented implicate a broader due process concern.” Id. at 131.




                          [J-103-2018] [MO: Dougherty, J.] - 18
       “In this regard,” we reasoned, “the admission of evidence of a refusal to consent

to a warrantless search to demonstrate consciousness of guilt is problematic, as most

jurisdictions hold (outside the context of implied-consent scenarios) that such admission

unacceptably burdens an accused’s right to refuse consent.” Id. We noted that federal

appellate courts unanimously accept this proposition, as do numerous state courts. See

id. at 131 n.4 (citing, inter alia, United States v. Runyan, 290 F.3d 223, 249 (5th Cir. 2002)

(“[T]he circuit courts that have directly addressed this question have unanimously held

that a defendant’s refusal to consent to a warrantless search may not be presented as

evidence of guilt.”); Bargas v. State, 489 P.2d 130, 132 (Alaska 1971) (“It would make

meaningless the constitutional protection against unreasonable searches and seizures if

the exercise of that right were allowed to become a badge of guilt.”)). We further noted,

“[a]s an aside,” that “such treatment contrasts with the response in scenarios in which a

defendant resists providing a sample during the execution of a duly authorized search

warrant.” Id. (citing United States v. Ashburn, 76 F.Supp.3d 401, 444-46 (E.D.N.Y.

2014)).

       Today’s Majority declines to address the High Court’s precedents regarding the

penalization of the exercise of constitutional rights.5 To justify this omission, the Majority

5      The Majority’s insistence to the contrary notwithstanding, I do not “criticize” the
Majority for declining to address the unconstitutional conditions doctrine. Majority Opinion
at 19 n.12. As I explained above, supra n.4, I have discussed that doctrine for the purpose
of addressing the important threshold question of whether a warrantless blood test may
be justified under any of the exceptions to the Fourth Amendment’s warrant
requirement—here, consent. The unconstitutional conditions doctrine is one among
several reasons that construing “implied consent” as a categorical exception to the
warrant requirement is a legal fiction that cannot withstand constitutional scrutiny. See
supra Part I. The doctrine does not control the narrower derivative question before us, at
least not directly.
By contrast, the decisions of The Supreme Court of the United States disfavoring
penalization of constitutional rights are directly relevant to the precise issue presented
here. In considering this issue, it is indeed incumbent upon this Court to consult the limits



                           [J-103-2018] [MO: Dougherty, J.] - 19
states that Bell does not “cite to any of the High Court’s cases discussing the penalization

of constitutional rights, but instead cites solely to the distinguishable cases of Chapman

and Welch.” Majority Opinion at 19 n.12. As I discuss below, Chapman and Welch are

not so easily distinguished in light of McNeely and Birchfield. Even more problematic,

however, is the Majority’s perspective with regard to the scope of this Court’s ability to

survey applicable and controlling law. Rather than testing its reasoning against the

holdings of The Supreme Court of the United States, the Majority prefers to set a

dangerous and unfounded precedent suggesting that the universe of applicable law is

limited to the Table of Citations section of an appellant’s brief.

       Notably, the Majority recognizes that “[t]he United States Supreme Court’s

decisions in McNeely and Birchfield and this Court’s decision in Myers indicate a

warrantless blood test, which is conducted when no exceptions to the warrant

requirement apply, violates the Fourth Amendment rights of a motorist suspected of DUI.”

Majority Opinion at 18. The Majority also stops short of stating that a statutory implied

consent provision supplies such an exception to the warrant requirement. Faced thus

with an individual’s voluntary consent as the remaining potential justification for the failure

to obtain a search warrant for a blood draw, the Majority declines to recognize the

constitutional significance of the right not to consent, or the impermissibility of penalizing

an individual for exercising that right.6     Rather, the Majority avoids applying these

principles to the question at bar entirely through resort to dicta and nonbinding authority.

that the High Court has set in this arena in cases such as Griffin and Jackson. It is not
“spurious” to suggest that a court of last resort undertake such a review, Majority Opinion
at 19 n.12, nor would the endeavor mean that we would “act as advocates.” Id. at 20
n.12. Rather, addressing the High Court’s precedents that bear upon the question before
us is part of our duty as an appellate court to ensure conformity with governing law.
6     The Majority offers only a conclusory citation to Jenkins v. Anderson, 447 U.S. 231
(1980), for the proposition that “the Constitution does not forbid ‘every government-
imposed choice in the criminal process that has the effect of discouraging the exercise of



                           [J-103-2018] [MO: Dougherty, J.] - 20
       The Majority places substantial weight upon our parenthetical caveat in Chapman,

that “the admission of evidence of a refusal to consent to a warrantless search to

demonstrate consciousness of guilt is problematic, as most jurisdictions hold (outside



constitutional rights.’” Id. at 236 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 30
(1973)); see Majority Opinion at 18-19. The very next sentence in Jenkins, however,
clarifies that the “threshold question is whether compelling the election impairs to an
appreciable extent any of the policies behind the rights involved.” Jenkins, 447 U.S. at
236 (quoting Chaffin, 412 U.S. at 32). Chaffin, further, noted that the jury sentencing
procedure at issue therein was “utilized for legitimate purposes and not as a means of
punishing or penalizing the assertion of protected rights.” Chaffin, 412 U.S. at 32 n.20.
That is distinct, Chaffin reasoned, from a practice designed to discourage the exercise of
constitutional rights. Id. (“[I]f the only objective of a state practice is to discourage the
assertion of constitutional rights it is ‘patently unconstitutional.’”) (quoting Shapiro v.
Thompson, 394 U.S. 618, 631 (1969)).
The sole purpose of the implied consent law’s consequences of refusal is to induce a
motorist’s compliance with chemical testing. Where the motorist has a constitutional right
to refuse to consent—as for a blood test, but not a breath test—the “only objective” of the
evidentiary consequence at issue in this case is to “discourage the assertion” of that right.
Id. In Chaffin’s parlance, such a practice is “patently unconstitutional.” Id. The practice
is designed to persuade motorists into relinquishing their Fourth Amendment rights
through the promise of future punishment, so that evidence which otherwise requires a
search warrant may be obtained in the absence of a warrant. This is a circumvention of
the warrant requirement which, thus, “impairs to an appreciable extent . . . the policies
behind” the Fourth Amendment. Jenkins, 447 U.S. at 236; Chaffin, 412 U.S. at 32.
Accordingly, although the Majority is correct that not every choice in the criminal process
that discourages the exercise of a right is unconstitutional, the choice compelled in this
circumstance bears all of the hallmarks of an unconstitutional practice.
The Majority posits that the evidentiary consequence at issue “does not solely punish a
defendant” but also has a legitimate purpose of allowing jurors to “understand why the
State is not submitting an evidentiary test in a DUI prosecution.” Majority Opinion at 19
n.11 (quoting Rajda, 196 A.3d at 1120) (emphasis added). Satisfaction of the potential
curiosity of a hypothetical future juror is no justification whatsoever for demanding the
relinquishment of a fundamental constitutional right. Moreover, no such confusion ever
is necessary. Police officers simply can request breath tests—which remain categorically
valid under Birchfield even absent a warrant—and/or they can obtain search warrants for
blood tests. In either circumstance, if the motorist complies, the desired evidence is
obtained and may be placed before the jury. If the motorist refuses, then refusal evidence
constitutionally may be introduced, and no juror will wonder about its absence. There
remains no satisfactory justification for compromising the Fourth Amendment simply to
make available evidence easier to obtain.


                          [J-103-2018] [MO: Dougherty, J.] - 21
the context of implied-consent scenarios) that such admission unacceptably burdens

an accused’s right to refuse consent.” Majority Opinion at 18 (quoting Chapman, 136

A.3d at 131) (Majority’s emphasis).      Because Chapman involved no such “implied-

consent scenario,” this parenthetical was dictum, and, as such, has no precedential value.

Even more importantly, the Chapman dictum pre-dates Birchfield. As discussed above,

Birchfield necessarily has altered our understanding of the consequences that may attach

under statutory implied consent schemes.         Put simply, after Birchfield, there is no

categorical exception to the warrant requirement for blood tests. Consequently, we must

treat a request for consent to submit to a blood test no differently than a request for

consent to search a bedroom, as in Welch, or a request for consent to a DNA test, as in

Chapman. As with those other types of warrantless searches, admission into evidence

of one’s refusal to consent to a warrantless blood test to demonstrate consciousness of

guilt is similarly “problematic.”   Chapman, 136 A.3d at 131. Stated otherwise, it is

unconstitutional.

       In addition to the Chapman dictum, the other central pillar of the Majority’s analysis

is the following passage from Birchfield:

       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. Petitioners do not
       question the constitutionality of those laws, and nothing we say here should
       be read to cast doubt on them.


Majority Opinion at 21 (quoting Birchfield, 136 S.Ct. at 2185) (internal citations omitted).

The Majority elevates this passage to the same level as the Court’s holdings on the issue

granted for review, reading the Court’s reservation of these questions as approval of the

practice of penalizing individuals for their refusal to consent to unconstitutional searches.

See id. (reasoning that the Birchfield Court “did not back away from its prior approval of

other kinds of consequences for refusal, such as ‘evidentiary consequences’”).


                          [J-103-2018] [MO: Dougherty, J.] - 22
       As I read Birchfield’s caveat, the Court merely declined to opine concerning

matters outside the scope of the issue upon which certiorari was granted, which was

limited to the constitutionality of criminal punishment for refusal to submit to warrantless

BAC testing. To be sure, the Court’s statement that its decision should not be “read to

cast doubt on” such “civil penalties and evidentiary consequences” facially appears to

exclude those consequences from the reach of the Court’s holding. Birchfield, 136 S.Ct.

at 2185. However, because the Birchfield Court resolved the question before it upon the

basis of the validity of the underlying search, other constitutional doctrines discussed

herein are implicated, and certain consequences of the Court’s reasoning are

inescapable.

       Professor Wayne LaFave has addressed the incongruity that results from reading

Birchfield’s caveat in the manner that the Majority does today:

       While it has been established as a Fifth Amendment matter that a defendant
       being prosecuted for driving under the influence may not object to the
       admission in evidence against him his refusal to submit to a sobriety test at
       the time of arrest, what of the claim that such evidence is inadmissible as a
       Fourth Amendment matter? The Court in Birchfield noted in passing (just
       as it did earlier in McNeely) that “evidence of the motorist’s refusal is
       admitted as evidence of likely intoxication in a drunk-driving prosecution,”
       and later cautioned that “nothing we say here should be read to cast doubt”
       on such “evidentiary consequences on motorists who refuse to comply.”
       But that assertion is misleading at best, for Birchfield’s emphasis on the
       distinction between when a defendant’s refusal to submit is constitutionally
       significant (i.e., for a blood test absent exigent circumstances) and when it
       is not (i.e., for all breath tests and for other blood tests) is, by well-
       established pre-existing authority, also relevant to the question of whether
       refusal may be admitted into evidence to show defendant’s guilt. What the
       cases indicate is that when defendant’s refusal was within the context of a
       recognized search-warrant-required category, then the Fourth Amendment
       prohibits admission of that refusal into evidence. . . . But on the other hand,
       when it is first determined that no warrant was required in any event (e.g.,
       taking a breath sample), comment on the refusal is permissible.




                          [J-103-2018] [MO: Dougherty, J.] - 23
4 W AYNE R. LAFAVE & DAVID C. BAUM, SEARCH & SEIZURE § 8.2(l), at 27 (5th ed. Supp.

2018) (hereinafter, “LAFAVE”) (footnotes and emphasis omitted).

      Either the Birchfield Court simultaneously, and sub silentio, curtailed several

distinct constitutional doctrines—including the principle that an individual may not be

penalized for exercising a constitutional right, the bedrock rule that consent to a search

may not be coerced, and the prohibition upon conditioning the exercise of a privilege upon

the relinquishment of a constitutional right—or there is a simpler answer. I propose a rule

that makes sense of Birchfield and does not run afoul of these other important

constitutional principles. When it comes to blood testing, the rule is “simple—get a

warrant.” Riley v. California, 573 U.S. 373, 403 (2014). Once the officer has obtained a

warrant for a blood test—and not a moment before—all of the penalties set forth in the

implied consent law are available and constitutional.7

      Perhaps the most conceptually challenging consequence of the Birchfield decision

is recognizing that “implied consent” has nothing to do with consent in the Fourth

Amendment sense, as it has been defined in Schneckloth and a legion of other decisions.8

7      Although the consequence of driver’s license suspension is not at issue herein, I
note that Professor LaFave suggests that the “issue should be resolved in the same
fashion” that the Birchfield Court resolved the issue of criminal penalties, reasoning:
      While the Birchfield Court stated only that the “limit to the consequences to
      which a motorist may be deemed to have consented by virtue of a decision
      to drive on public roads” is passed when “criminal penalties” of any
      magnitude are imposed, surely the driver who is thus constitutionally
      protected from a $10 criminal fine must likewise be protected from the more
      serious penalty of revocation of driving privileges.
LAFAVE, § 8.2(l), at 27 (emphasis in original). As with all of the other consequences set
forth in the implied consent law, validation of this penalty is as simple as obtaining a
search warrant for a blood test.
8       Indeed, in one of the only mentions of “implied consent” in the High Court’s recent
plurality decision in Mitchell v. Wisconsin, the Court noted that its previous decisions
“have not rested on the idea that these laws do what their popular name might seem to



                          [J-103-2018] [MO: Dougherty, J.] - 24
BAC testing generally requires a motorist’s cooperation, and implied consent laws are

statutory schemes intended “to find a way of securing such cooperation.” Birchfield, 136

S.Ct. at 2168. They do so by imposing consequences—or penalties—upon the failure to

cooperate. Id. at 2166 (“These laws impose penalties on motorists who refuse to undergo

testing.”) But BAC tests are searches for purposes of the Fourth Amendment, and

Birchfield requires that, in order to serve as a constitutional basis for the imposition of

such consequences, those searches must “comport with the Fourth Amendment.” Id. at

2172. Indeed, every time that the Birchfield Court spoke of “implied consent,” it referred

to these statutory consequences of refusal, not to an exception to the Fourth

Amendment’s warrant requirement. In this regard, statutory implied consent provisions

should be regarded as mandates that a motorist cooperate with a valid search, not as

mechanisms to allow circumvention of the requirements of the Fourth Amendment.

       Importantly, where the Majority makes no attempt to recognize or resolve the

manifest tension between its holding and the established constitutional doctrines that its

holding compromises, my analysis of the question at bar not only is consistent with the

reasoning of Birchfield, but provides a constitutionally permissible and jurisprudentially

consistent path to the imposition of all of the consequences set forth in the implied consent

law. Civil, criminal, and evidentiary consequences of refusal all remain constitutional.

They have only one prerequisite—a valid search under the Fourth Amendment.

       It is perhaps helpful to summarize the application of these principles in practice.

Upon conducting a lawful arrest of a motorist suspected of DUI, a police officer may

demand the motorist’s submission to a breath test. As a valid search incident to arrest,



suggest—that is, create actual consent to all the searches they authorize.” Mitchell, 139
S.Ct. at 2533 (plurality). Although the Court’s plurality ruled upon a different basis and
this statement accordingly is not controlling, it provides insight into the Court’s rationale
in Birchfield.


                          [J-103-2018] [MO: Dougherty, J.] - 25
no search warrant is required. The police officer may warn the motorist that the failure to

cooperate with the breath test will result in criminal punishment, civil penalties, and

evidentiary consequences. If the motorist complies, then BAC evidence is obtained. If

the motorist refuses, then the full complement of consequences set forth in the implied

consent law may constitutionally be imposed.

       If the police officer wishes to conduct a search of the motorist’s blood, and the

circumstances do not give rise to an exigency, then a search warrant is required. Under

McNeely, there is no per se exigency.            The search-incident-to-arrest doctrine is

inapplicable pursuant to Birchfield.       Threats of increased criminal penalties, the

suspension of the motorist’s driver’s license, and the use of the motorist’s refusal to

consent as evidence of his guilt should all be regarded as coercive, and inconsistent with

a conclusion “that the consent was in fact voluntarily given, and not the result of duress

or coercion, express or implied.” Schneckloth, 412 U.S. at 248. “For, no matter how

subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext

for the unjustified police intrusion against which the Fourth Amendment is directed.” Id.

at 228. At the very least, to ultimately impose any of these consequences, including the

one at issue in the case at bar, is to penalize the exercise of a constitutional right. Such

penalization is impermissible under the well-settled precedents of the Supreme Court of

the United States. See, e.g., Harman, 380 U.S. at 540; Griffin, 380 U.S. at 614.

       However, once the police officer obtains a search warrant for a blood test (or

establishes a true exigency), the search is valid, and the motorist has no right to refuse

it. At that point, the blood test is equivalent to a breath test. If the motorist complies, the

desired evidence is obtained.       If the motorist refuses, then the full complement of

consequences set forth in the implied consent law may constitutionally be imposed. The

only distinction between these scenarios is that a blood test, but not a breath test, requires




                           [J-103-2018] [MO: Dougherty, J.] - 26
compliance with the Fourth Amendment’s warrant requirement. Such was the reason that

the Birchfield Court drew a constitutionally significant distinction between the types of

testing at issue.

       Things play out very differently under the Majority’s approach. Under today’s

holding, the police officer not only may demand the motorist’s submission to a warrantless

blood test—an unconstitutional search—but later may testify regarding the motorist’s

refusal to consent to that search, so as to suggest the motorist’s guilt to a fact-finder. The

result is nearly absurd. The police officer is not authorized to perform the search, and the

motorist is therefore constitutionally entitled to refuse consent to that search. But the

motorist, by doing what he is allowed to do, suffers adverse consequences for refusing to

allow the police officer to do what the officer is not allowed to do.

       To take one further step into the illogical, suppose that the motorist agrees to

submit to a breath test, but not to a blood test. The motorist notes that, per the Birchfield

decision, the breath test may be compelled, but an officer must get a search warrant for

a blood test. By all appearances, the motorist is correct, inasmuch as excusing the

warrant requirement for the blood test as well would defeat the purpose of the Birchfield

Court’s distinction between breath and blood. Well, replies the officer, although the

motorist is correct with regard to the lawfulness of criminal penalties that later may attach

to a conviction, and although the officer indeed would need to obtain a search warrant in

order for that consequence to be permissible, the motorist nonetheless must “consent” to

the warrantless blood search, or else face both a lengthy driver’s license suspension and

a prosecutor who will tell the judge or jury that the motorist was behaving as a guilty

person would.

       The Majority allows that the warrant requirement applies to blood tests, and that

such a test, “which is conducted when no exceptions to the warrant requirement apply,




                           [J-103-2018] [MO: Dougherty, J.] - 27
violates the Fourth Amendment rights of a motorist suspected of DUI.” Majority Opinion

at 18. Yet, the Majority contrarily holds that the blood test nonetheless must be conducted

even without a warrant, lest the motorist face the penalty at issue in this case. This can

be regarded as nothing other than an end-run around the warrant requirement—a means

of permitting the impermissible under the dubious fiction of “consent,” where such

“consent” plainly is compelled by the threat of sanctions and thus is “no more than a

pretext for the unjustified police intrusion against which the Fourth Amendment is

directed.” Schneckloth, 412 U.S. at 248. At no point does the Majority offer any reason

as to why police officers cannot simply obtain search warrants for blood tests as a general

matter.

       With regard to a motorist’s breath, the search-incident-to-arrest doctrine tethers

the statutory implied consent consequences to a valid warrantless search.             For a

warrantless search of a motorist’s blood, there is a missing link. To maintain the Birchfield

Court’s distinction between breath and blood, and to avoid compromising the bedrock

constitutional doctrines discussed above, we must conclude that using a motorist’s refusal

to consent to a warrantless and otherwise-unjustified blood test as evidence of his

consciousness of guilt unacceptably burdens the motorist’s Fourth Amendment rights.

Because there is no categorical basis for dispensing with the warrant requirement for

blood tests, and because there is a concomitant constitutional right to refuse to consent

to such a warrantless search, the introduction of a motorist’s refusal to consent to a

warrantless blood test as evidence of his guilt is “a penalty imposed by courts for

exercising a constitutional privilege.” Griffin, 380 U.S. at 614. “It cuts down on the

privilege by making its assertion costly.” Id. Because the “only objective” of this practice

is to “discourage the assertion” of that constitutional right so as to avoid the warrant




                          [J-103-2018] [MO: Dougherty, J.] - 28
requirement, it is “patently unconstitutional” as applied to warrantless blood testing.

Chaffin, 412 U.S. at 32 n.20.

       Moreover, because the search warrant process provides a simple, routine, and

well-understood mechanism to validate a blood test, and therefore to establish a

constitutional prerequisite to the imposition of penalties for refusal to comply, the

admission of evidence of refusal to consent to a warrantless blood test not only penalizes

the exercise of a constitutional right, but it does so “needlessly.” Jackson, 390 U.S. at

583 (“Congress cannot impose such a penalty in a manner that needlessly penalizes the

assertion of a constitutional right.”).

       Sometimes, Fourth Amendment decisions have difficult consequences, in that they

can result in the unavailability of evidence necessary to prosecute a guilty person. This

is not one of those cases. The evidence that the Commonwealth seeks remains available

in every circumstance, either through a categorically valid warrantless breath test or by

“seeking a warrant for a blood test when there is sufficient time to do so” or “relying on

the exigent circumstances exception to the warrant requirement when there is not.”

Birchfield, 136 S.Ct. at 2184. We need not and should not strain the Fourth Amendment

in order to find ways for the Commonwealth to obtain blood evidence without a search

warrant. Rather, for blood tests, we should simply enforce the Fourth Amendment’s

warrant requirement.

       III.    Article I, Section 8 of the Pennsylvania Constitution

       For all of the foregoing, I have relied exclusively upon federal constitutional

jurisprudence, which I believe clearly establishes Bell’s entitlement to relief in this matter.

However, as I noted at the outset, Birchfield and McNeely have left significant

unanswered questions in their wake, questions that have placed the governing federal

law “in a state of flux” for the past several years. Pap’s A.M. v. City of Erie, 812 A.2d 591,




                            [J-103-2018] [MO: Dougherty, J.] - 29
607 (Pa. 2002). Under such circumstances, “this Court has not hesitated to render its

independent judgment as a matter of distinct and enforceable Pennsylvania constitutional

law.” Id. If today’s Majority is unwilling to take the short step necessary to fill in the gaps

left by Birchfield as a matter of federal constitutional law, we should do so under our own

Constitution.9

       The Majority concludes that Bell’s substantive claim under the Pennsylvania

Constitution is waived because Bell failed to “develop an argument that the Pennsylvania

Constitution provided any independent grounds for relief” in his pre-trial motion or in his

motion for reconsideration. Majority Opinion at 11. A litigant who already has placed an

issue before the trial court is not required to reassert that issue in a motion for

reconsideration on pain of waiver. The Majority cites no authority for such a conclusion.

Cf. Pa.R.Crim.P. 720(B)(1)(c) (“Issues raised before or during trial shall be deemed

preserved for appeal whether or not the defendant elects to file a post-sentence motion

on those issues.”).

       As for the contents of Bell’s pre-trial motion, the Majority cites to the inapposite

case of Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011). Chamberlain, however,

did not involve a Pennsylvania constitutional claim that was underdeveloped below, but,

rather, one that was not raised at all in the trial court. See Chamberlain, 30 A.3d at 404-

9       As noted above, since this Court undertook consideration of this appeal, the
Supreme Court of the United States decided Mitchell v. Wisconsin. See supra n.1.
Although the Court granted certiorari to decide “[w]hether a statute authorizing a blood
draw from an unconscious motorist provides an exception to the Fourth Amendment
warrant requirement,” Mitchell, 139 S.Ct. at 2532, a plurality of the Court ultimately ruled
upon the basis of the general applicability of the exigent circumstances exception where
a motorist suspected of DUI is “unconscious and therefore cannot be given a breath test.”
Id. at 2531. Mitchell, thus, does not offer any clarity as to the important questions left
open in Birchfield with regard to the contours of “implied consent” or the validity of the
consequences imposed under “implied consent” statutes. Because the High Court again
has left these important questions unresolved, the need for independent consideration
under our own Constitution is all the more acute.


                           [J-103-2018] [MO: Dougherty, J.] - 30
05 (noting Commonwealth’s argument that claim was waived because “Appellant did not

raise a state due process claim . . . before the trial court”).     Because the claim in

Chamberlain was raised for the first time on appeal, we naturally found it waived under

Pa.R.A.P. 302(a). But Bell expressly raised an Article I, Section 8 claim before the trial

court. See Motion to Dismiss, 3/8/2016, at 2 (“Pennsylvania’s Implied Consent Law

violates Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment

to the United States Constitution under the Unconstitutional Conditions Doctrine.”). As

such, both Rule 302 and the reasoning of Chamberlain are inapplicable here.

       All that remains, then, is the Majority’s contention that Bell’s claim was “general”

and thus insufficient under Commonwealth v. Lagenella, 83 A.3d 94, 99 n.3 (Pa. 2013),

Commonwealth v. Galvin, 985 A.2d 783, 793 n.15 (Pa. 2009), and Commonwealth v.

Starr, 664 A.2d 1326, 1334 n.6 (Pa. 1995). See Majority Opinion at 11-12 n.8. The

referenced footnotes contained in Laganella, Galvin, and Starr, however, all merely note

that the respective appellants did not advance the argument in their briefs to this Court,

such that this Court would not embark upon an independent analysis of the Pennsylvania

Constitution sua sponte, and instead would deem the applicable constitutional provisions

to be coterminous for purposes of the decision. Neither Laganella, Galvin, nor Starr found

waiver under Rule 302 for the appellants’ failure to “develop” a Pennsylvania

constitutional claim before the lower court, as the Majority does today. 10

       Bell raised his claim before the trial court under the Fourth Amendment and Article

I, Section 8 of the Pennsylvania Constitution. He was the appellee in the Superior Court,

10     To the extent that the Majority’s opinion may be read to suggest that such
“development” necessitates that a challenger present to the trial court an analysis under
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991)—the form of development that this
Court prefers—I emphasize that we never have required such on pain of waiver. See,
e.g., Commonwealth v. Arroyo, 723 A.2d 162, 166 n.6 (Pa. 1999) (failure to engage in an
Edmunds analysis in lower court “does not result in waiver of a state constitutional claim”).



                          [J-103-2018] [MO: Dougherty, J.] - 31
and thus bore no issue-preservation burden. Bell’s Article I, Section 8 claim was included

expressly within our grant of allocatur.11 Bell develops his claim further before this Court,

and engages in an Edmunds analysis. Under such circumstances, a retrospective finding

of waiver based upon the absence of preferred language in a pre-trial motion is

exceedingly harsh, and leaves future litigants with little guidance regarding the steps that

they must take in the trial court so that this Court will not deem their claims waived.

       I would hold simply that blood tests require compliance with the warrant

requirement under Article I, Section 8 of the Pennsylvania Constitution. Resolution of the

remaining questions left open in Birchfield then falls into place.

       I respectfully dissent.

       Justice Donohue joins this dissenting opinion.




11     We granted allowance of appeal in order to consider:
       Whether § 1547(e) of the Vehicle Code, 75 Pa.C.S. § 1547(e), is violative
       of Article 1 Section 8 of the Pennsylvania Constitution and the Fourth
       Amendment to the United States Constitution to the extent that it permits
       evidence of an arrestee’s refusal to submit a sample of blood for testing
       without a search warrant as proof of consciousness of guilt at the arrestee’s
       trial on a charge of DUI?
Commonwealth v. Bell, 183 A.3d 978 (Pa. 2018) (per curiam) (emphasis added).


                           [J-103-2018] [MO: Dougherty, J.] - 32
