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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                        Appellant       :
                                        :
                   v.                   :         No. 2329 EDA 2015
                                        :
RISHAD WILLIAMS                         :


                    Appeal from the Order, July 13, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. MC-51-CR-0038600-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 28, 2016

      The Commonwealth appeals from the July 13, 2015 order granting

defendant/appellee, Rishad Williams’ petition for writ of certiorari to the

Court of Common Pleas and reversing his conviction. We affirm.

      The trial court has summarized the procedural and factual background

of this matter as follows:

                   On November 12, 2014, Appellee Rishad
            Williams was arrested and charged with Driving
            Under the Influence pursuant to 75 Pa.C.S. § 3802.
            On February 3, 2015, in the Municipal Court,
            Appellee argued a motion to suppress blood test
            results pursuant to the Fourth and Fourteenth
            Amendments of the United States Constitution and
            Article 1, Section 8 of the Pennsylvania Constitution.
            On March 23, 2015, Municipal Court Judge Francis
            Shields denied the motion and found Appellee guilty
            after a bench trial. On that date, Judge Shields
            sentenced Appellee to 72 hours to six months of
            confinement. On May 19, 2015, Appellee filed a Writ


* Former Justice specially assigned to the Superior Court.
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            of Certiorari to Common Pleas Court. On July 13,
            2015, this Court issued an Order granting Appellee’s
            Writ of Certiorari, thereby reversing the denial of the
            suppression motion, vacating Appellee’s sentence,
            and reversing his conviction. This Commonwealth
            appeal followed.[1]

Trial court opinion, 1/4/16 at 1.

                   At around 4:30 a.m. on November 12, 2014,
            James Brown was asleep in his home on
            Loretto Avenue in Philadelphia. Mr. Brown heard a
            loud noise and went to his window. He saw a motor
            vehicle and went outside.      There, he saw three
            damaged vehicles; two were parked and one was in
            the street. Mr. Brown also saw Appellee standing
            next to the vehicle in the street. The two parked
            vehicles were not occupied. Mr. Brown watched
            Appellee get into the vehicle in the street and try to
            start it.

                  Police officers arrived at the scene fifteen
            minutes after Mr. Brown initially went outside.
            Officer Panarello spoke to Mr. Brown and Appellee at
            the scene. The officer observed that Appellee had
            watery, bloodshot eyes, slurred speech, and a
            moderate odor of alcohol on his breath, and that
            there were signs of a motor vehicle accident from
            debris in the road and damage to three vehicles.
            Officer Panarello took Appellee into custody because
            he believed Appellee was intoxicated and not able to
            operate a motor vehicle safely.

                  Appellee was transported to Frankford Hospital
            for chemical testing. There, at around 5:07 a.m.,
            Lieutenant Jamil Taylor encountered Appellee.
            Appellee was handcuffed on a gurney and wearing a
            neck brace. He was sleeping and snoring loudly.
            When Lieutenant Taylor called Appellee’s name,
            Appellee opened his eyes and immediately fell back

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.


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            to sleep. Thereafter, Lieutenant Taylor administered
            O’Connell warnings.[2] Appellee was asleep at this
            time. Lieutenant Taylor then instructed a nurse to
            take Appellee’s blood. The nurse took Appellee’s
            blood and gave it to Lieutenant Taylor. There was
            no search warrant prepared or executed prior to the
            blood draw. There is no evidence that Appellee ever
            consented to or refused the blood test.

Id. at 1-2 (citations to the transcript omitted).

      The Commonwealth has raised the following issue for this court’s

review:

            Did the lower court, sitting as an appellate court, err
            in reversing the denial of suppression of blood test
            evidence based on defendant’s lack of affirmative
            consent notwithstanding the implied consent statute?

Commonwealth’s brief at 4.3

      The trial court relied on this court’s decision in Commonwealth v.

Myers, 118 A.3d 1122 (Pa.Super. 2015), appeal granted, 131 A.3d 480

(Pa. 2016), in which we held that the police were required to obtain a

warrant   before   drawing    blood   from   an     unconscious    DUI   suspect,

notwithstanding Pennsylvania’s implied consent law.               The trial court

explained the rationale for its decision as follows:



2
 See Com., Dept. of Transp., Bureau of Traffic Safety v. O’Connell,
555 A.2d 873 (Pa. 1989).
3
  At the same time that the notice of appeal was filed, July 29, 2015, 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 4, 2016, the trial court issued an opinion in
support of its decision.


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                    Here, like Myers, Appellee was arrested for DUI
              pursuant to 75 Pa.C.S. § 3802. Lieutenant Taylor
              gave Appellee O’Connell warnings after he observed
              Appellee fall back to sleep.      Similar to Myers,
              Appellee did not respond to the standard informed
              consent warnings.       Although Appellee was not
              unconscious like Myers, he was sleeping and
              unresponsive at the time of the warnings and
              subsequent blood draw.       Thus, Appellee did not
              consent to the blood test, nor was he able to refuse
              his consent to the test under Pennsylvania’s implied
              consent statute, 75 Pa.C.S. § 1547.[4] Further, and

4
    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 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.A. § 1547(a)(1).

              (b)   Suspension for refusal.--

              (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 but upon notice
                    by the police officer, the department shall
                    suspend the operating privilege of the person
                    as follows. . . .

75 Pa.C.S.A. § 1547(b)(1).

              (2)   It shall be the duty of the police officer to
                    inform the person that:



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           similar to the facts of Myers, Lieutenant Taylor did
           not obtain a warrant before requesting the blood
           draw.    Instead, Lieutenant Taylor had the nurse
           perform a warrantless blood draw.        Finally, no
           exigency appears on the record in the instant case
           that would justify a warrantless blood draw. Thus,
           based on Myers and the facts presented here,
           Appellee’s blood was improperly obtained by the
           Commonwealth because Appellee was sleeping and
           did not consent to the test.

Trial court opinion, 1/4/16 at 5 (footnote omitted).      See also Bailey v.

State,     S.E.2d       , 2016 WL 3751822 at *5 (Ga.Ct.App. July 13, 2016)

(“Bailey’s implied consent was insufficient to satisfy the Fourth Amendment,

and he could not have given actual consent to the search and seizure of his

blood and urine, as he was unconscious”) (footnote omitted); State v.

Romano, 785 S.E.2d 168 (N.C.Ct.App. April 19, 2016) (warrantless blood




                 (i)     the person’s operating privilege will
                         be suspended upon refusal to
                         submit to chemical testing; and

                 (ii)    if the person refuses to submit to
                         chemical testing, upon conviction
                         or plea for violating section
                         3802(a)(1), the person will be
                         subject to the penalties provided in
                         section    3804(c)    (relating   to
                         penalties).

75 Pa.C.S.A. § 1547(b)(2).


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draw of unconscious DWI defendant was unconstitutional despite North

Carolina’s implied consent law).5

      The Commonwealth argues that Myers was wrongly decided and notes

that the Pennsylvania Supreme Court has granted allowance of appeal in

that case.   (Commonwealth’s brief at 17-18.)     However, unless and until

Myers is overturned by our supreme court, we remain bound by it.            See

Commonwealth v. Reed, 107 A.3d 137, 143 (Pa.Super. 2014) (“This Court

is bound by existing precedent under the doctrine of stare decisis and

continues to follow controlling precedent as long as the decision has not

been overturned by our Supreme Court.” (citations omitted; footnote

omitted)). We agree with the trial court that Myers is controlling here.6

      The Commonwealth also argues that the good-faith exception to the

exclusionary rule should apply, where appellee was arrested prior to this

court’s decision in Myers. However, the basis for our holding in Myers was

the United States Supreme Court’s decision in Missouri v. McNeely,



5
 Although not binding precedent, out-of-state decisions may be relied upon
as persuasive authority. Trach v. Fellin, 817 A.2d 1102, 1115 (Pa.Super.
2003) (en banc), appeal denied, 847 A.2d 1288 (Pa. 2004) (citations
omitted).
6
  We recognize that in Myers, the defendant was unconscious due to the
hospital’s administration of Haldol a few minutes before the officer arrived.
Myers, 118 A.3d at 1124. Here, appellee was asleep or passed out,
apparently due to intoxication. The Commonwealth does not dispute that
appellee was unresponsive. The bottom line is that neither the defendant in
Myers nor appellee in this case was able to exercise his statutory right of
refusal to blood testing under 75 Pa.C.S.A. § 1547(b)(1).


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U.S.      , 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), which predated

appellee’s arrest.    In McNeely, a blood sample had been taken from the

suspect, despite his refusal to submit to such testing. 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. McNeely rejected a per se rule allowing the

involuntary taking of a person’s blood when there is probable cause to

believe he committed a drunk driving offense.          Id.   Rather, whether a

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

basis, considering the totality of the circumstances. Id. at 1563. See also

Bailey, 2016 WL 3751822 at *4 (“courts from other jurisdictions generally

have found that, under McNeely, implied consent of an unconscious suspect

is insufficient to satisfy the Fourth Amendment.             Those states have

concluded that the State must either obtain a warrant or show exigent

circumstances   for    a   warrantless    search   under   the   totality   of   the

circumstances.”) (footnote omitted) (collecting cases); Romano, 785 S.E.2d

at 174-175 (holding that the officers could not reasonably rely on the good

faith exception to the exclusionary rule where they never attempted to

obtain a warrant).

       In its reply brief, the Commonwealth asserts that the recent case of

Birchfield v. North Dakota,         U.S.       , 136 S.Ct. 2160, 84 USLW 4493



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(June 23, 2016), dictates a contrary result. We disagree. Birchfield held

that a blood test, as opposed to a breath test, may not be administered as a

search incident to a lawful arrest for drunk driving:

            It is true that a blood test, unlike a breath test, may
            be administered to a person who is unconscious
            (perhaps as a result of a crash) or who is unable to
            do what is needed to take a breath test due to
            profound intoxication or injuries. But we have 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 2184-2185.        Birchfield rejected the respondents’ alternative

argument that such tests are justified based on the driver’s legally implied

consent to submit to them, stating that,

            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.

Id. at 2185.   It is true, as the Commonwealth points out, that the state

statutes at issue in Birchfield, unlike Pennsylvania’s implied consent law,

went further than imposing civil penalties and evidentiary consequences on

drivers who refused to comply and imposed criminal penalties:

            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.


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Id.   However, Birchfield did not address the issue presented here and in

Myers, the constitutionality of taking blood from an unconscious suspect

who is unable to refuse consent. North Dakota’s implied consent law made

refusal a misdemeanor.    Id. at 2186.   The Court in Birchfield concluded

that “motorists cannot be deemed to have consented to submit to a blood

test on pain of committing a criminal offense.”   Id.   The Commonwealth’s

argument that the United States Supreme Court would have reached a

different conclusion if North Dakota’s implied consent law had not imposed

criminal penalties for refusal is speculation. As such, the Commonwealth’s

reliance on Birchfield is misplaced. As discussed above, Myers dictates the

result here.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2016




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