                                    [J-90-2019]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                 WESTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,                  :   No. 19 WAP 2019
                                               :
                      Appellee                 :   Appeal from the Order of the Superior
                                               :   Court entered 9/24/18 at No. 1439 WDA
                                               :   2017, reversing the order of the Court of
                 v.                            :   Common Pleas of Westmoreland
                                               :   County entered on 9/28/17 at No. CP-
                                               :   65-CR-0001154-2014, and remanding
MICHELLE LEIGH STARRY,                         :
                                               :
                      Appellant                :   SUBMITTED: September 4, 2019




                                         OPINION


CHIEF JUSTICE SAYLOR                               DECIDED: JANUARY 22, 2020


       Under Section 3802(c) of the Vehicle Code, a person commits the offense of

driving under the influence -- highest rate of alcohol if he operates a vehicle:

              after imbibing a sufficient amount of alcohol such that the
              alcohol concentration in the individual’s blood or breath is
              0.16% or higher within two hours after the individual has
              driven, operated or been in actual physical control of the
              movement of the vehicle.
75 Pa.C.S. §3802(c).      This approach, sometimes referred as a per se crime, was

designed to ameliorate difficulties associated with attempting to relate post hoc blood

and breath test results back to the time of driving. See Commonwealth v. Duda, 592

Pa. 164, 173-74, 923 A.3d 1138, 1143 (2007) (discussing the derivation of the “illegal

per se” approach to driving-under-the-influence crimes, as contrasted with general
impairment offenses); see also Commonwealth v. Segida, 604 Pa. 103, 115, 985 A.2d

871, 879 (2009) (“The necessity for the two hour time limit . . . is grounded in the

practical impossibility either of measuring blood alcohol level precisely at the time of

driving or of calculating the exact blood alcohol level at the time of driving from a single

blood alcohol measurement taken at some point in time after driving.”).

       In the present case, Appellant was charged, inter alia, with the Section 3802(c)

offense. She claims that the Commonwealth failed, prior to trial, to establish a prima

facie case that her blood alcohol level was 0.16 percent or greater within two hours after

driving.

       Appellant’s arrest occurred after she was involved in a single-car accident.

Following a preliminary hearing, she filed a pretrial motion claiming that the prosecution

had failed to establish a prima facie case for the Section 3802(c) violation.1          The

common pleas court conducted a hearing on this motion, in which it permitted the

Commonwealth to supplement the preliminary hearing evidence.2

       In relevant part, an investigating state trooper testified that he was summoned to

the scene of the crash on a rural road at approximately 12:06 p.m. on Sunday, January

26, 2014, and he arrived at 12:36 p.m. See N.T., Mar. 10, 2014, at 15.3 According to

1 A previous appeal was litigated on a different theory, as chronicled in Commonwealth
v. Starry, 2028 WDA 2015, slip op., 2016 WL 5586603 (Pa. Super. Sept. 29, 2016).

2  There is no issue before this Court concerning the procedure employed for such
supplementation. Additionally, at both hearings the Commonwealth was permitted to
introduce substantial hearsay evidence, see Pa.R.Crim.P. 542(E), the propriety of which
is also not before this Court.

3 Since this case concerns evidentiary sufficiency in the context of the Commonwealth’s
burden to establish a prima facie case, the investigating officer’s creditable testimony is
taken as true and the facts are otherwise related in the light most favorable to the
Commonwealth. See, e.g., Commonwealth v. Huggins, 575 Pa. 395, 402, 836 A.2d
862, 866 (2003).


                                      [J-90-2019] - 2
the trooper, individuals had placed calls reporting having come upon the accident, one

between 11:49 and 11:50 a.m. and a second at 12:10 p.m. N.T., July 30, 2015, at 9-

10.4   Additionally, police had learned from a Mr. Teeter that Appellant had left his

residence at 11:00 a.m. See id. at 16. Thus, the trooper explained that the accident

occurred sometime between 11:00 a.m. and the first report of the accident, at 11:49

a.m. See id. at 19.5

       When the investigating trooper arrived at the crash scene, he found Appellant in

the rear of an ambulance. See N.T., March 10, 2014, at 5. She smelled of alcohol,

slurred her speech, and was incoherent. See id. at 5, 11. Emergency medical services

personnel reported that they had found Appellant sleeping in the vehicle when they

arrived, and she fell to the ground when they attempted to assist her to her feet. See id.

at 7-8. Aside from the medical personnel, no one else was present at the scene, and it

was reported that there were initially no footprints in the slush surrounding the vehicle,

except those of a passerby. See id. at 6. The trooper found a partially empty glass of

beer in Appellant’s vehicle. See id.

       Appellant was transported to the hospital, where her blood was drawn in the

course of medical treatment. See id. at 8. The parties stipulated that the blood draw

occurred at 1:40 p.m. See N.T., July 30, 2015, at 13. The investigating trooper secured

a search warrant for the blood test results, which revealed a blood alcohol content of

.304 percent. See N.T., March 10, 2014, at 8.


4 Defense counsel stipulated that the precise time that the first call was received was
eleven forty-nine and thirty-four seconds o’clock. See N.T., July 30, 2015, at 10. For
convenience, in our analysis, we refer to the time as 11:49 a.m.

5 Notably, the Commonwealth made no effort to establish the distance, and accordingly,
inferences as to the likely time of travel between Mr. Teeter’s residence and the scene
of the accident.


                                       [J-90-2019] - 3
       Upon cross-examination at the preliminary hearing, the trooper was questioned

concerning why he did not accompany Appellant to the hospital to attempt to obtain a

consensual blood sample. See id. at 13. The trooper responded:

              Common practice . . . involving the state police is if nothing .
              . . serious accidents you just . . . because of . . . financial
              constraints they just . . . you just seek a search warrant.
Id. (ellipsis adjusted). At the supplemental hearing, however, the trooper responded

that his main concern had been with Appellant’s timely treatment, and, in his

experience, blood is always taken in connection with hospital-based medical attention to

determine the appropriate course of treatment. See N.T., July 30, 2015, at 25. He also

said that he chose to use a search warrant for the result of the medical blood test

“because of the type of accident it was.” Id. at 26.

       The common pleas court granted Appellant’s motion and dismissed the Section

3802(c) charge with prejudice.      Initially, the court explained that the review of a

challenge to the sufficiency of the evidence presented by the Commonwealth at a

preliminary hearing centers upon whether the prosecution has established a prima facie

case, i.e., that a crime has been committed and that there is sufficient probable cause to

believe that the accused is the one who committed it. See, e.g., Commonwealth v.

Huggins, 575 Pa. 395, 402, 836 A.2d 862, 866 (2003). The court also indicated that the

Commonwealth is required to proffer evidence that, if presented at trial and accepted as

true, would warrant allowing the case to be determined by a jury.                See, e.g.,

Commonwealth v. Karetny, 583 Pa. 514, 529, 880 A.2d 505, 514 (2005).6


6  Consistent with our analysis that follows, this case does not concern nuances
associated with this Court’s alternative focus on probable cause versus sufficiency of
the evidence to warrant presentation to a jury. See generally Commonwealth v. Ricker,
642 Pa. 367, 381-82 & n.10, 170 A.3d 494, 503 & n.10 (2017) (Saylor, C.J., concurring)
(discussing such nuances).


                                      [J-90-2019] - 4
       In the common pleas court’s view, the Commonwealth could not establish a

prima facie case for a Section 3802(c) violation “simply because there are too many

variables.”   Commonwealth v. Starry, 1154 Crim. 2014, slip op. at 6 (C.P.

Westmoreland Sept. 27, 2017).        The court reasoned that the accident could have

occurred “as early as 11:05 [a].m., when Appellant left Mr. Teeter’s home.”7 In this

regard, the court deemed the time of the accident to be a material element of the

charge, see id. at 7,8 and it found that the Commonwealth’s inability to establish this

precise time was fatal to its effort to establish a prima facie case. According to the

court, “[t]he Commonwealth incorrectly argues that the jury can determine the time of

the accident based upon the time it was first brought to the attention of the police. This

is speculation and is not the law.” Id.

       The common pleas court proceeded to address Section 3802(g) of the Vehicle

Code, which is couched as an “[e]xception to [the] two-hour rule” provided in various

subsections of Section 3802, including Section 3802(c). Section 3802(g) provides:

              Notwithstanding the provisions of subsection (a), (b), (c), (e)
              or (f), where alcohol or controlled substance concentration in
              an individual's blood or breath is an element of the offense,
              evidence of such alcohol or controlled substance
              concentration more than two hours after the individual has
              driven, operated or been in actual physical control of the
              movement of the vehicle is sufficient to establish that
              element of the offense under the following circumstances:



7 In several respects, the common pleas court transposed morning and night. The
testimony was that Appellant left Mr. Teeter’s home at 11:00 a.m., and again, no
evidence was presented about the distance between this place of departure and the
accident site.

8 Since Section 3802(c) does not address accidents, the court obviously considered the
time of the crash as a proxy for the latest instance of Appellant’s driving.


                                      [J-90-2019] - 5
             (1) where the Commonwealth shows good cause explaining
             why the chemical test sample could not be obtained within
             two hours; and

             (2) where the Commonwealth establishes that the individual
             did not imbibe any alcohol or utilize a controlled substance
             between the time the individual was arrested and the time
             the sample was obtained.
75 Pa.C.S. §3802(g).

      Applying Section 3802(g)(1), the court opined that the prosecution offered no

good reason for failing to attempt to secure a more prompt blood test, other than stating

that law enforcement policy in cases of serious accidents was to obtain a search

warrant for the results of medical blood tests. See Starry, 1154 Crim. 2014, slip op. at

8. And the court suggested that there should have been some elevated concern about

the two-hour window, given that the time of the accident was unknown. See id. at 8-9.

      The common pleas court also reasoned that Section 3802(g)(2) was not

satisfied, because the investigating trooper could not discount the possibility that

Appellant might have consumed alcohol between the time of the accident and the time

the trooper arrived on the scene.    See id. at 9.     Unfortunately, however, the court

misread the statute, since it concerns only the time period between arrest and blood

testing. See 75 Pa.C.S. §3802(g)(2).9



9 Notwithstanding the common pleas court’s mistaken focus, the trooper’s testimony
only specifically addressed the time period between his arrival on the accident scene
and Appellant’s removal from the scene. See N.T., July 30, 2015, at 23-24.

We also observe that the trooper’s testimony, in this respect, was adduced on redirect
examination. No issue, however, has been presented at any stage raising a timing
issue relative to the production of the evidence. We make note of this point only
because it represents one of numerous manifestations of a pervasive looseness in the
development of the prosecution case that impacts upon our review here. See, e.g.,
supra notes 5 & 7.


                                     [J-90-2019] - 6
       On the Commonwealth’s interlocutory appeal, the Superior Court reversed. See

Commonwealth v. Starry, 196 A.3d 649 (Pa. Super. 2018). Citing extensively to this

Court’s decision in Segida, the panel reasoned that the severity, timing, and location of

the accident gave rise to a reasonable inference that it had occurred at or near the time

of the first report at 11:49 a.m. See id. at 659 (citing Segida, 604 Pa. at 117-18, 985

A.2d at 880). Additionally, the panel stressed Appellant’s “enormously elevated” blood

alcohol content, indicating that “[t]he fact-finder would not be required to suspend

common sense.” Id. (citing Segida, 604 Pa. at 117-18, 985 A.2d at 880).

       The Superior Court also rejected the common pleas court’s ruling concerning

Section 3802(g).    With respect to the first prong, namely good cause, the panel

endorsed a bright-line rule that “the removal of a defendant to a hospital so that she be

provided proper treatment constitutes good cause for the delay in obtaining a blood

sample within two hours.” Id. at 661. Relative to the “no imbibing” requirement of

Section 3802(g)(2), the Superior Court initially highlighted the common pleas court’s

misplaced focus on the time period before the investigating trooper arrived at the

accident scene.    See id.   Because the trooper had testified that Appellant had not

consumed alcohol from the time he arrived until she was removed from the accident

scene, the panel found this sufficient proof of abstinence prior to blood testing. See id.10

       Finally, the Superior Court related that the Commonwealth had presented an

additional argument that, even if it were conceded that a blood sample had been taken

more than two hours after driving, jurors should be permitted to draw inferences from

the test result about the defendant’s blood alcohol content during the two-hour period.



10The intermediate court’s reasoning, in this respect, subsumes an unstated inference
that alcohol would not be available to a person in the care of medical personnel. The
reasonableness of such an inference is discussed below.


                                      [J-90-2019] - 7
See id. Given its previous disposition, however, the panel found it unnecessary to

address this argument.11

      On the filing of Appellant’s petition for allowance of appeal, this Court accepted

review to consider the following questions:

             (1) Whether the rationale and holding in Commonwealth v.
             Segida, 604 Pa. 103, 985 A.2d 871 (2009), applies to a
             charge of driving under the influence brought pursuant to 75
             Pa.C.S. § 3802(c), which has a statutory requirement that
             the defendant have an alcohol concentration in his or her
             blood or breath of .16% or greater within two hours after
             driving, operating or being in actual physical control of the
             movement of a vehicle.

             (2) Whether the Superior Court erred by finding that the
             Commonwealth presented prima facie evidence that
             Petitioner's blood alcohol concentration was .16% or higher
             within two hours after she drove, operated or was in actual
             physical control of the movement of a vehicle.

             (3) Whether the Superior Court erred in finding that the
             Commonwealth presented prima facie evidence to satisfy 75
             Pa.C.S. § 3802(g)(1), which requires the Commonwealth to
             show “good cause explaining why the chemical test sample
             could not be obtained within two hours.”
Commonwealth v. Starry, ___ Pa. ___, ___, 204 A.3d 369, 369-70 (2019) (per curiam).

These are legal issues, over which this Court’s review is plenary. See, e.g., Yussen v.

MCARE Fund, 616 Pa. 108, 117, 46 A.3d 685, 691 (2012).




11  We note, however, that the intermediate court had previously stressed the
extraordinarily elevated level of Appellant’s blood alcohol content in discussing the
timing issue. See Starry, 196 A.3d at 659. It is difficult to apprehend the significance of
the outcome of a blood test result to the question of when the last instance of driving
has occurred, unless one is relying upon a relation back inference to lessen the
significance of the precise timing.


                                     [J-90-2019] - 8
      Presently, Appellant’s lead argument is that the Superior Court’s reliance on

Segida was misguided, since Segida concerned a general impairment offense and not a

statute, such as Section 3802(c), creating per se illegality based on blood alcohol

content within two hours after driving. In this regard, Appellant notes that the Superior

Court’s decision in Segida had specifically addressed the Section 3802(c) per se

offense; the intermediate court had overturned a Section 3802(c) conviction based on a

failure of sufficient proof; and such ruling was not challenged before this Court on

appeal. See Commonwealth v. Segida, 912 A.2d 841 (Pa. Super. 2006), vacated in

part on other grounds, 604 Pa. 103, 985 A.2d 871 (2009). Appellant faults the present

panel for failing to abide by its own precedent, i.e., that portion of Segida that was not

disapproved by this Court.

      Additionally, Appellant argues that, because her blood was drawn at 1:40 p.m.,

the Commonwealth was bound to present creditable evidence that she last operated her

vehicle after 11:40 a.m., or in other words, no more than nine minutes before the first

report of her accident at 11:49 a.m.     In this regard, she explains that has been no

account of her conduct and whereabouts between the time she left the Teeter residence

at 11:00 a.m. and the time the accident was first reported. To conclude that Appellant

was tested within two hours of driving, she asserts, would require a jury to engage in

“speculation, conjecture and assumption.” Brief for Appellant at 20. Appellant also

roundly criticizes reliance on the timing of the first report as evidence serving to

establish the time of the accident. See id.

      Initially, Appellant is correct that the Section 3802(c) issue was not before this

Court in Segida.     However, the main reason for this is significant, in that the

Commonwealth had failed, in Segida, to adduce evidence that would establish when

blood testing occurred. See Segida, 912 A.2d at 845. Given this failure of proof, the


                                     [J-90-2019] - 9
Commonwealth had conceded that it was unable to meet the requirements of Section

3802(c). See id. In the present case, however, the Commonwealth secured Appellant’s

stipulation that the blood draw occurred at a time certain. See N.T., July 30, 2015, at

13.

       In Segida, the Superior Court did proceed, in the context of its Section 3802(c)

analysis, to also analyze the lack of proof concerning the time at which the defendant in

the case had last driven. See Segida, 912 A.2d at 846-48. But that analysis was

blended with the court’s discussion of the general impairment crime, see Segida, 912

A.2d at 846 (positing that the Commonwealth’s failure to adduce last-time-of-driving

evidence was equally significant to the determinations under both Section 3802(a)(1)

and (c)), which is the analysis which this Court disapproved. See Segida, 604 Pa. at

117-18, 985 A.2d at 880-81. For this reason, we differ with Appellant’s position that the

panel was bound by the intermediate court’s previous analysis from Segida.

       Significantly, for present purposes, the intermediate court, in Segida, recognized

that the Commonwealth could conceivably prove its case, under Section 3802(c), even

if a blood test occurred more than two hours after Appellant had last driven by relating

the test result back to the time of driving. See Segida, 912 A.2d at 845. The panel

noted that such extrapolation may require expert testimony.             See id.   The panel

proceeded no further with this analysis, however, because the Commonwealth failed to

present evidence that would establish the time of the testing itself.

       The previous relation-back cases have involved relating a blood test result back

to the time of driving, and it is an issue of first impression whether the Commonwealth

may attempt to establish relation back to the two-hour window in the context of a per se

offense.   There is nothing in Section 3802(c) that prohibits this, however, and the




                                     [J-90-2019] - 10
ordinary rule is that the Commonwealth may prove its case by circumstantial evidence.

See, e.g., Commonwealth v. Cousar, 593 Pa. 204, 217, 928 A.2d 1025, 1032-33 (2007).

       In the context of relation back (or extrapolating) from the time of testing to the

time of driving, this Court has established a dichotomy between weak and strong

inferences. See, e.g., Commonwealth v. Modaffare, 529 Pa. 101, 105, 601 A.2d 1233,

1235 (1992). With regard to weak inferences, these ensue when a defendant’s blood

alcohol content is not significantly over the threshold for illegality and/or a substantial

period has elapsed between testing and the time of driving, and expert testimony is

generally required to support weak inferences. See id. By contrast, a strong inference

of guilt can be drawn where there is a substantially elevated test result and the sample

was taken relatively close to the time of driving, and expert testimony is not necessary

to support strong inferences. See id.; Segida, 604 Pa. at 118, 985 A.2d at 880. As the

Superior Court and the Commonwealth have presently highlighted, Segida serves as an

example of the application of a strong inference. See id. at 118, 985 A.2d at 880

(“Although precisely how much time had elapsed between the accident and [a]ppellee’s

blood alcohol measurement is unknown, the fact-finder is not required to suspend

common sense and ignore the fact that [a]ppellee’s blood alcohol concentration was not

just elevated, but enormously elevated -- four times the legal limit of 0.08 and twice the

highest rate of alcohol pursuant to subsection 3802(c).”).

       We find that there is no reason to distinguish between relation back to the time of

driving relative to general impairment offenses and relation back to the statutory two-

hour window for the per se offenses. In either instance, the post hoc test result serves

as circumstantial evidence of the defendant’s blood alcohol level in the relevant time

period. And given this material equivalence, we also conclude that the same regime of

weak and strong inferences applies to per se offense scenarios.


                                     [J-90-2019] - 11
       Accordingly, in response to Appellant’s first question -- i.e., whether the rationale

of Segida applies to Section 3802(c) -- we hold that it does. Particularly where there is

evidence of an extraordinarily elevated blood test result and the time between the

expiration of the two-hour window and testing is reasonably close, the Commonwealth

may proceed to a jury determination without the necessity to adduce expert testimony.

       In the present case, the prosecution’s evidence, if accepted, would establish that

Appellant drove at an outside maximum of two hours and forty minutes prior to testing,

or in other words, at most forty minutes after the ostensible expiration of the two-hour

window under Section 3802(c). Given her extraordinarily elevated test result of .304

percent, nearly twice the amount of the highest-rate-offense threshold of 0.16 percent,

we conclude that a strong inference may be drawn that Appellant’s blood alcohol level

exceeded 0.16 percent within this two-hour period.

       Although the Superior Court’s reliance on the “severity, timing, and location” of

the accident was fairly superficial -- particularly given the rural location and the rather

sparse testimony concerning traffic in the locale on a Sunday morning -- these

considerations do nonetheless tend to bolster the conclusion that the time period, if any,

between the expiration of two hours after driving and the testing, was significantly less

than forty minutes.

       Accordingly, we conclude that the Commonwealth established probable cause

that Appellant committed the Section 3802(c) offense and that a jury would be within its

province to determine that her blood alcohol content was at least 0.16 percent within

two hours after driving.

       In his responsive opinion, Justice Wecht opines that the Commonwealth has an

“undisputed obligation,” under Section 3802(g)(1) to show good cause for “tardiness” in

testing suspects’ blood alcohol concentrations. Concurring and Dissenting at 1. In


                                     [J-90-2019] - 12
point of fact, the government squarely disputes that it had any such obligation in this

case. Indeed, the Commonwealth’s lead argument advances the specific relation-back

theory that we have credited above. See, e.g., Brief for Appellee at 12 (“The BAC will

remain as circumstantial evidence of what the BAC was, back within the two-hour

period . . ., particularly if the Commonwealth at trial presents ‘relation back’ testimony.”);

see also id. at 19 (positing that, on account of Appellant’s “’enormously elevated’ . . .

[BAC] level of .304%,” that “it is eminently reasonable to conclude that any expert or jury

(with or without the benefit of expert testimony) could come to a conclusion that the

defendant’s BAC was greater than .16% within two hours” (emphasis in original)).

Along these lines, the Commonwealth expressly couches its contentions about good

cause as arguments in the alternative. See id. at 17.

       The fact that proceeding under the respective subsections Section 3802(c) and

(g) are statutory alternatives made available to the prosecution amply explains why this

opinion surely does not “effectively write[] Subsection (g) out of the statute,” or

otherwise effectuate a “substitution of a relation-back approach in the place of the

Commonwealth’s burden under Subsection (g).” Concurring and Dissenting Opinion at

1, 6. Nothing in this opinion either requires relation back evidence or hampers the

Commonwealth’s ability to proceed under Section 3802(g).

       Significantly, as well, Justice Wecht acknowledges that the Legislature simply did

not say what he has decided to infer, nor does the Duda case, upon which his

responsive opinion relies. See Concurring and Dissenting Opinion at 4. Accordingly,

his reasoning is premised primarily on implication -- Justice Wecht posits that, because

the Legislature provided an avenue by which the two-hour period may be extended, by

implication it necessarily foreclosed all traditional evidence by which a violation within

the two hours could be proven in the first instance. See, e.g., id. In our view, however,


                                      [J-90-2019] - 13
had the General Assembly desired to establish such an evidentiary prohibition, it would

have been an exceedingly straightforward matter to say so. For example, the statute

could have been written as follows: “It is a crime for a person to drive in a condition in

which a blood test result taken within two hours after driving and credited by the

factfinder reveals a blood alcohol content of .16 percent or above.” Accord, e.g., K.S.A.

8-1567(a)(2) (rendering a crime to operate a vehicle while “the alcohol concentration in

the person’s blood or breath, as measured within three hours of the time of operating . .

. a vehicle, is 0.08 or more” (emphasis added)).

       Instead, the Legislature prescribed a rule that is conditioned -- not on the specific

timing of testing -- but rather, on the conduct of driving at a level of .16 percent or

greater, subject to precisely no stated evidentiary restrictions. And, accordingly, nothing

in Section 3802 suggests an intention, on the part of the General Assembly, to negate

the straightforward application of the Pennsylvania Rules of Evidence, including the

axiom that relevant evidence is evidence that “has any tendency to make a fact more or

less probable than it would be without the evidence,” where the fact is of consequence

to the determination of the action. Pa.R.E. 401(a). Furthermore, we trust in this context

-- as we do in many others -- that the Rules of Evidence sufficiently guard against

misleading scientific evidence, see Pa.R.E. 702-703, which concern is portrayed by

Justice Wecht as a policy reason militating in favor of interjecting an unstated

evidentiary restriction into the statute. See Concurring and Dissenting Opinion at 5

(portraying courtrooms employing evidentiary rules sanctioned by this Court as

“colosseums for dueling experts, thrusting and parrying with biochemical esoterica

outside the grasp of jurors and jurists alike”).

       Turning to Appellant’s final issue, the need for the Commonwealth to resort to an

exception to the two-hour rule is effectively mooted by our holding above.


                                      [J-90-2019] - 14
Nevertheless, we take the opportunity to express circumspection about the Superior

Court’s bright-line approach to medical treatment as good cause for extending the two-

hour window under Section 3208(g)(1). See Starry, 196 A.3d at 661. In the absence of

some evidence to the contrary, we assume that the necessity for and timing of blood

testing during the course of medical treatment will turn on circumstance-dependent

judgments by health professionals. That said, for purposes of this case, we find it quite

reasonable for the investigating officer to have inferred -- given the seriously impaired

condition in which he found Appellant -- that a blood alcohol test for medical purposes

would ensue as promptly as possible.

      In cases where these types of inferences are not warranted, however, a

demonstrated effort, on the part of law enforcement officers seeking to pursue per se

offenses, to meet the two-hour window will be necessary before a determination of good

cause for failing to do so should attach, or a creditable explanation as to why such

efforts were not practicable must be provided. Moreover, particularly under the recent

decision of the Supreme Court of the United States in Birchfield v. North Dakota, ___

U.S. ___, 136 S. Ct. 2160 (2016), which post-dated the events presently in issue, it may

be necessary for officers to seasonably pursue a warrant to obtain a blood test

specifically for law enforcement purposes. See id. at ___, 136 S. Ct. at 2184-85.

      This Court certainly appreciates that police may face other pressing needs in

various circumstances, including at accident scenes. Accord Mitchell v. Wisconsin, ___

U.S. ___, ___, 139 S. Ct. 2525, 2533 (2019) (discussing Schmerber v. California, 384

U.S. 757, 770-71, 86 S. Ct. 1826, 1836 (1966)). Where such exigencies exist, the

Commonwealth may adduce evidence to demonstrate them, in furtherance of its burden

to establish good cause under Section 3802(g)(1). The difficulty, in this case, in terms




                                    [J-90-2019] - 15
of any reference to the demands upon the investigating trooper’s time, is that the record

is substantially underdeveloped along these lines. Accord supra note 9.

      Finally, in terms of the Superior Court’s unstated inference, for purposes of

Section 3802(g)(2), that seriously impaired persons undergoing emergency medical

treatment will not have access to alcoholic beverages, see supra note 10, we find this to

be reasonable and capable of advancing the Commonwealth’s burden of proof at a

preliminary hearing.

      The order of the Superior Court is affirmed.


      Justices Baer, Todd and Mundy join the opinion.

      Justice Wecht files a concurring and dissenting opinion in which Justices

Donohue and Dougherty join.




                                    [J-90-2019] - 16
