                                  [J-64-2019]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

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


    COMMONWEALTH OF PENNSYLVANIA,              :   No. 38 EAP 2018
                                               :
                      Appellee                 :   Appeal from the Order of Superior
                                               :   Court entered on 03/26/2018 at No.
                                               :   730 EDA 2017 (reargument denied
               v.                              :   05/23/2018), reversing and remanding
                                               :   the Order entered on 02/08/2017 in
                                               :   the Court of Common Pleas,
    TIMOTHY TRAHEY,                            :   Philadelphia County, Criminal
                                               :   Division, at No. CP-51-CR-0000422-
                      Appellant                :   2016.
                                               :
                                               :   ARGUED: September 10, 2019


                                        OPINION


JUSTICE WECHT                                                 DECIDED: April 22, 2020
        In this discretionary appeal, we revisit the limitations that the Fourth Amendment

to the United States Constitution places upon the collection of evidence from the body of

a motorist suspected of driving under the influence of alcohol or controlled substances

(“DUI”), in light of the Supreme Court of the United States’ decisions in Missouri v.

McNeely, 569 U.S. 141 (2013), Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160

(2016), and Mitchell v. Wisconsin, __ U.S. __, 139 S.Ct. 2525 (2019) (plurality). This

matter concerns the exigent circumstances doctrine.1


1     In Fourth Amendment jurisprudence, the exigent circumstances doctrine refers to
an exception to the warrant requirement applicable where “the exigencies of the situation
make the needs of law enforcement so compelling that a warrantless search is objectively
reasonable under the Fourth Amendment.” McNeely, 569 U.S. at 148-49 (quoting
Kentucky v. King, 563 U.S. 452, 460 (2011)).
       The trial court granted Timothy Trahey’s motion to suppress the results of a blood

test that revealed his blood alcohol concentration (“BAC”), finding no justification for the

investigating officers’ failure to obtain a search warrant before conducting the test. On

the Commonwealth’s appeal, the Superior Court reversed, opining that the

Commonwealth’s      evidence    sufficiently    established   the   existence   of   exigent

circumstances, thus excusing the absence of a warrant. We reverse the order of the

Superior Court.

                                               I.

       The facts giving rise to this appeal, as summarized from the suppression court’s

findings, are as follows. On the evening of September 4, 2015, the Friday before Labor

Day, 911 dispatchers received a report that a motorist had stricken a bicyclist with a

pickup truck on the 4900 block of Wynnewood Avenue in Philadelphia. The accident was

reported at 9:15 p.m., but, because the Philadelphia Police Department assigns a

relatively low priority to vehicular accident response, police officers were not dispatched

to the scene until 10:01 p.m. Officers Christopher Marchesani and Derrick Lewis arrived

at the scene at approximately 10:04 p.m. The bicyclist already had been transported to

a hospital, but ultimately died from the injuries sustained. A group of bystanders informed

the officers that Trahey was operating the pickup truck when he collided with the bicyclist.

Officer Marchesani approached Trahey, who confirmed that he was the driver. During

his interaction with Trahey, Officer Marchesani noticed that Trahey smelled of alcohol,

that his speech was slow and slurred, that his eyes were glassy, and that his gait was

unsteady. Based upon these observations, Officer Marchesani arrested Trahey for DUI.

       The officers had spent approximately thirty minutes at the accident scene before

they departed to transport Trahey to the Police Detention Unit (“PDU”). While en route to

the PDU, they were called back to the scene by officers of the Accident Investigation




                                      [J-64-2019] - 2
District (“AID”), a unit that specializes in the investigation of accidents involving critical

injuries. After observing the indicia of Trahey’s intoxication, and learning that over an

hour had passed since the accident, AID Officer Patrick Farrell became concerned with

the timing of a BAC test.2 Accordingly, at 10:49 p.m., Officer Farrell sent Trahey to the

PDU for a blood test.

       AID Officer John Zirilli was the officer assigned to conduct breath and blood tests

that evening. In accordance with a Department policy for the investigation of accidents

involving serious injuries, Officer Zirilli selected a blood test rather than a breath test. No

officer attempted to obtain a search warrant for the blood draw. Upon encountering

Trahey, Officer Zirilli advised him of the requirements of Pennsylvania’s “implied consent”

law,3 which, at the time, included warnings that the refusal to submit to chemical testing

could result in legal consequences, including increased criminal penalties upon

conviction. Trahey verbally acknowledged these warnings, stated that he would submit

to a blood test, and signed the applicable form. However, Trahey did not check the box

on the form indicating that he agreed to undergo blood testing. A nurse drew Trahey’s

blood at 11:20 p.m.

       Trahey was charged with DUI, homicide by vehicle while driving under the

influence, homicide by vehicle, and involuntary manslaughter.            During the pre-trial

proceedings, however, the Supreme Court of the United States issued its decision in

Birchfield. Drawing a constitutional distinction between breath and blood, the Birchfield


2       The DUI statute provides, in relevant part, that “[a]n individual may not drive,
operate or be in actual physical control of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the alcohol concentration in the individual’s blood
or breath” falls within specified ranges “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(a)(2), (b), (c) (emphasis added).
3      See generally 75 Pa.C.S. § 1547.


                                       [J-64-2019] - 3
Court held that a breath test may be conducted without a search warrant as a valid search

incident to arrest. Birchfield, 136 S.Ct. at 2185. The same cannot be said of the

“significantly more intrusive” blood test, the reasonableness of which “must be judged in

light of the availability of the less invasive alternative of a breath test.” Id. at 2184.

Following the Birchfield decision, on November 30, 2016, Trahey filed a motion to

suppress the results of his blood test, asserting that the test was unconstitutional without

a search warrant.

       On February 8, 2017, the trial court held a hearing on Trahey’s motion. Officer

Zirilli testified regarding his interactions with Trahey, the procedure that he followed before

having Trahey’s blood drawn, and his recitation of the “implied consent” warnings. Notes

of Testimony, Suppression Hearing, 2/8/2017 (“N.T.”), at 6-22. Officer Zirilli confirmed

that a blood test ordinarily is selected when a vehicular accident results in death or serious

injury, and that he chose a blood test for that reason. Id. at 7, 38. However, Officer Zirilli

acknowledged that an Intoxilyzer 8000 breath-testing machine was present in the room

when he was interacting with Trahey. Id. at 23.

       Officer Marchesani testified about his initial response to the accident scene and

his investigation thereof.   He established the beginning of the relevant time frame,

confirming that the initial report of the collision was received at 9:15 p.m., and that he and

his partner were dispatched to the scene at 10:01 p.m. Id. at 85-87. Officer Marchesani

explained this temporal gap by describing the hierarchy pursuant to which police

response is prioritized in Philadelphia. The highest priority is assigned to incidents

requiring officer backup, then to reports involving weapons or robberies, then to burglaries

or vandalism in progress, then to domestic violence reports, and finally to vehicular

accident response. Id. at 46, 68-69.




                                       [J-64-2019] - 4
       AID Officer Farrell testified, accounting for the time that elapsed after AID officers

took responsibility for the investigation. Officer Farrell detailed his concern for the timing

of a BAC test upon learning that the accident had occurred approximately one hour before

AID’s arrival at the scene. Id. at 97-98. Officer Farrell confirmed that AID officers

transported Trahey to the PDU at 10:49 p.m. Id. at 99-100.

       Finally, AID Officer Daniel Shead testified.           Officer Shead detailed the

responsibilities of various AID officers when they are on duty, as well as certain

procedures involved in DUI investigation. He testified that, on the evening in question,

two AID officers were on duty at AID headquarters and three officers were in the field,

including himself. Id. at 108. Because one officer was assigned to answer the telephone

and one officer was assigned to conduct chemical tests, Officer Shead opined that no

one at the headquarters was available to begin preparing a search warrant before Trahey

arrived. Id. at 109-11. He noted, however, that, had Trahey refused to submit to a blood

draw, the officers “would have tried to secure a search warrant” for the test. Id. at 111.

       With regard to the process for obtaining a search warrant and the time frame

involved, Officer Shead detailed the steps that an officer would have to take in order to

obtain a warrant. First, an officer must leave the accident scene and return to AID

headquarters, which in this case would have taken between ten and fifteen minutes. Id.

at 113, 118. The officer then must write an affidavit, which may take twenty to thirty

minutes. Id. at 113, 118. The officer must submit the affidavit to an Assistant District

Attorney for review, which takes another ten to fifteen minutes. Id. at 113, 119. If

approved, the officer must prepare the search warrant application on a typewriter. Id. at

113. With the documents completed, the officer must contact the arraignment court and

determine whether a bail commissioner is available to approve the warrant. Id. at 113-

114. Officer Shead opined a commissioner might be available right away, or the affiant




                                       [J-64-2019] - 5
might have to wait upwards of an hour, there being “no rhyme or reason” for the time

variation. Id. at 113, 114, 120. Once a commissioner is available, the officer must travel

from AID headquarters, which may take another ten minutes. Id. at 121. Waiting for a

commissioner could then take between five and thirty minutes.             Id.   The bail

commissioner’s review takes another five minutes. Id. at 122. All told, Officer Shead

opined, the procedure for obtaining a search warrant at the time would take, at best,

seventy to seventy-five minutes, but could take up to three hours. Id. at 122-23.

       The court asked Officer Shead if he was aware that, due to the intervening change

in the law, blood testing requires a search warrant absent exigent circumstances. Officer

Shead stated his understanding that a search warrant is required if the suspect refuses

to submit to chemical testing. Id. at 126-27. He opined that, had Trahey refused the

blood draw, “then there would have been a warrant gotten that night because of the

injuries that were sustained and whatever else happened at the accident.” Id. at 127.

The court asked whether the officers would have requested a breath test in that situation,

and Officer Shead replied: “No. We would have gotten a search warrant for the blood.”

Id. at 128. Asked why the officers would choose a blood test over a breath test, Officer

Shead explained that “a Breathalyzer only shows someone’s blood alcohol concentration”

but does not reveal whether there are any “other intoxicants” such as controlled

substances in the suspect’s system. Id. at 128. “A blood test shows everything.” Id. at

129.

       At the conclusion of the suppression hearing, the court placed its conclusions of

law on the record, first opining that Trahey’s purported consent to the blood draw was

invalid because he was warned that failure to comply could result in enhanced criminal

penalties—a consequence held unconstitutional in Birchfield. Id. at 178-79. The court

further rejected the Commonwealth’s assertion of exigent circumstances, noting that the




                                     [J-64-2019] - 6
officers did not give any consideration to applying for a search warrant because they

believed that Trahey validly consented to the blood draw. The court rejected the claim of

exigency, deeming it a post hoc rationale that did not motivate the officers at the time. Id.

at 180-81. The court further observed that all of the officers who encountered Trahey

noted that he smelled like alcohol, and that “[t]his is a case where a Breathalyzer could

have been taken.” Id. at 181. Accordingly, finding no justification for a warrantless blood

draw, the court granted Trahey’s motion to suppress the results of the blood test.

         The Commonwealth filed an interlocutory appeal pursuant to Pa.R.A.P. 311(d),4

and the Superior Court reversed. Commonwealth v. Trahey, 183 A.3d 444 (Pa. Super.

2018).    The intermediate court first concluded that the suppression court erred by

assessing the Commonwealth’s claim of exigency by reference to the officers’ actual

beliefs and motivations, because the prevailing standard requires a court to “determine

whether the warrantless search was objectively reasonable under the Fourth

Amendment.”      Id. at 451 (emphasis in original).      Quoting this Court’s decision in

Commonwealth v. Martin, 101 A.3d 706 (Pa. 2014), which, in turn, quoted the Supreme

Court’s decision in Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011), the Superior Court

observed that evaluating “reasonableness” under the Fourth Amendment requires a court

to “ask whether the circumstances, viewed objectively, justify the challenged action. If

so, that action was reasonable whatever the subjective intent motivating the relevant

officials.” Trahey, 183 A.3d at 451 (quoting Martin, 101 A.3d at 721-22). Had the

suppression court correctly viewed the facts under an objective standard, the Superior

Court opined, “it would have found ample evidence to deny suppression of the blood

evidence.” Id. at 452.

4      See Pa.R.A.P. 311(d) (authorizing an interlocutory appeal as of right from a
suppression order “where the Commonwealth certifies in the notice of appeal that the
order will terminate or substantially handicap the prosecution”).


                                      [J-64-2019] - 7
       Specifically, the Superior Court pointed to the officers’ testimonies regarding the

desirability of testing a suspect’s BAC within two hours after the time of the accident and

the fact that the officers did not arrive at the scene until nearly fifty minutes after the first

emergency report. The court emphasized that the officers were not aware that the

incident was DUI-related until their arrival and that there was additional delay resulting

from the transfer of the investigation to the specialized AID officers. It further highlighted

the “lack of manpower” available that evening, inasmuch as only five AID officers were

on duty and they were responsible for all critical and DUI-related accident investigations

in Philadelphia. Id. at 452. The court particularly highlighted Officer Shead’s testimony

regarding the “practical problems” accompanying the process of obtaining a search

warrant, and noted that the defense “did not contest the prosecution’s evidence that it

would have taken officers anywhere from seventy minutes to three hours to successfully

obtain a warrant.” Id. Based upon these facts, the Superior Court deemed it “reasonable

to believe that the arresting officers were confronted with exigent circumstances, in which

the delay necessary to obtain a warrant threatened the destruction of evidence.” Id.

Accordingly, the court reversed the suppression order.5

       We granted Trahey’s petition for allowance of appeal in order to review the

Superior Court’s determination that the warrantless blood draw conducted in this case

was justified by exigent circumstances.6




5      President Judge Emeritus John T. Bender concurred in the result of the Superior
Court’s decision, but did not join the majority’s opinion.
6     Specifically, as rephrased in our order granting allowance of appeal, the question
before this Court is: “Do the facts and circumstances in this case justify a warrantless
blood draw under the exigent circumstances exception to the warrant requirement?”
Commonwealth v. Trahey, 196 A.3d 603 (Pa. 2018) (per curiam).


                                        [J-64-2019] - 8
                                             II.

       Trahey argues that the Commonwealth’s evidence regarding the difficulty of

obtaining a search warrant was “speculative” because, no attempt to obtain a warrant

having been made, it is unknown how long the process would have taken in this case.

Brief for Trahey at 17. The Commonwealth’s central argument before the suppression

court, Trahey contends, was that applying for a search warrant is time-consuming and

that the alcohol in a suspect’s blood is metabolizing during that time, which is an argument

that could apply to all DUI cases. Id. at 22-23. More fundamentally, given the ready

availability of a breath test, the lawfulness of conducting such a test without a search

warrant under Birchfield, and the absence of any suggestion that Trahey was impaired by

any substance other than alcohol, Trahey argues that a blood test was wholly

unnecessary.     He posits that “[t]here cannot be exigent circumstances to obtain

something that is not even needed in the first place.” Id. at 18 (emphasis omitted). Even

if, arguendo, the officers had reason to suspect the presence of controlled substances in

his system, Trahey contends that “illicit drugs take much longer than alcohol to

metabolize,” and therefore a delay necessitated by a search warrant application would

not risk the destruction of such evidence. Id. at 22.

       Trahey further criticizes the practices of the Philadelphia Police Department.

Taking aim at the officers’ delayed response time, as well as the asserted time constraints

involved in the search warrant application process, Trahey questions the low priority

assigned to vehicular accidents involving critical injuries and the decision to place only

five AID officers on duty for all of Philadelphia that evening, the beginning of Labor Day

weekend. Id. at 27. “If the Philadelphia Police Department is going to unnecessarily insist

on using the far more intrusive blood test as opposed to a less intrusive and

[c]onstitutionally permissible breath test,” Trahey argues, “then the department needs to




                                      [J-64-2019] - 9
set up an infrastructure that can timely process the required search warrant request.” Id.

Along these lines, Trahey highlights that the High Court in Birchfield considered two cases

arising in North Dakota, which, the Court noted, has only fifty-one state district judges and

thirty-one magistrates, with no magistrates in twenty of the state’s fifty-three counties. Id.

at 24 (quoting Birchfield, 136 S.Ct. at 2181). Given that the Birchfield Court demanded

compliance with the warrant requirement for blood tests in North Dakota, where “relatively

few state officials have authority to issue search warrants,” Birchfield, 136 S.Ct. at 2181,

Trahey contends that there is no justification for applying a lower standard to the City of

Philadelphia, “which has the type of substantial law enforcement and legal infrastructure

that is required for a major city.” Brief for Trahey at 23.

       Relatedly, to the extent that the delay in response time and the AID staffing

limitations gave rise to an urgent need for a warrantless blood draw, Trahey argues that

those circumstances were within the control of the police and, thus, that any exigency

was one of the officers’ own making. Because police officers cannot rely upon exigent

circumstances “where the exigency derives from their own actions,” id. at 27 (quoting

Commonwealth v. Demshock, 854 A.2d 553, 557 (Pa. Super. 2004)), Trahey urges this

Court to reject the Superior Court’s analysis.

       The Commonwealth, by contrast, disputes that the delays in this case were within

the officers’ control. Citing Officer Marchesani’s testimony regarding the hierarchy of

incidents requiring police response, the Commonwealth asserts that police dispatchers

must adhere to that system, that the officers did not choose when they would be

dispatched to the accident scene, and that this “was not a situation where police were

purposefully biding their time.” Brief for Commonwealth at 19-20. The Commonwealth

appears to dispute the Superior Court’s characterization of the relative “lack of manpower”

available that evening, and refers to testimony suggesting that there was a “higher-than-




                                      [J-64-2019] - 10
normal number of officers on duty.” Id. at 16 (citing N.T. at 133). Notwithstanding the

above-average number of available officers, the Commonwealth maintains that there was

no opportunity to apply for a search warrant. The Commonwealth emphasizes that the

responding officers, through no fault of their own, were not dispatched to the accident

scene until forty-six minutes after the first report of the collision, that they were unaware

at that time that Trahey may have been intoxicated, and that approximately ninety-six

minutes had elapsed by the time that they were able investigate, arrest, and transport

Trahey to the PDU. Id. at 13-14. Even with their best efforts, the Commonwealth

highlights, the officers here were unable to have Trahey’s blood drawn until 125 minutes

after the collision. Id. at 14. Any further delay, the Commonwealth argues, “would have

threatened, if not guaranteed, the destruction of evidence” of Trahey’s BAC. Id.

        With regard to the time-sensitivity of the investigation, the Commonwealth stresses

that the “optimal period” to obtain BAC evidence from a DUI suspect is within two hours

after the suspect’s last operation of the vehicle. Id. at 14 (citing 75 Pa.C.S. § 3802(a)-

(c)).   Given the constant dissipation of the alcohol in Trahey’s bloodstream, the

Commonwealth contends that “it would have been impossible to secure a warrant within

a reasonable timeframe to preserve reliable evidence.” Id. at 15. In this regard, the

Commonwealth emphasizes Officer Shead’s testimony that it would have taken at least

seventy minutes to obtain a search warrant, but that it could have taken as long as three

hours. Id. at 15-16. Because the officers did not develop probable cause to suspect

Trahey of DUI until nearly eighty minutes after the accident, the Commonwealth argues

that there was no conceivable way for the officers to obtain a search warrant with enough

time to obtain a satisfactory reading of Trahey’s BAC, i.e., “before hitting the two-hour

window to preserve reliable evidence.” Id. at 18.




                                      [J-64-2019] - 11
       The Commonwealth disputes Trahey’s assertion that a breath test would have

served law enforcement needs adequately, or that it must have made some separate

showing of the necessity for a warrantless blood test. Although it concedes that the

available evidence suggested that Trahey was under the influence of alcohol, the

Commonwealth contends that the “police had a responsibility to obtain all relevant

evidence of his intoxication, which may have included the use of other substances that

caused side effects not as immediately apparent as alcohol.” Id. The Commonwealth

emphasizes the McNeely Court’s holding that the Fourth Amendment requires officers to

obtain a search warrant for a blood draw provided that they can do so “without significantly

undermining the efficacy of the search.” Id. (quoting McNeely, 569 U.S. at 152). Where

exigent circumstances create a delay that undermines the efficacy of the search, the

Commonwealth observes, “a warrantless search is reasonable.” Id. It asserts, however,

that “[t]here is no suggestion in McNeely, or any case cited by [Trahey], that police must

also prove that they could not have performed a less accurate breathalyzer test” or that

the Commonwealth must make “some showing of probable cause to suspect that a

search will reveal the presence of an intoxicant other than alcohol.” Id. at 18-19.

       “The greatest exigency in this case,” the Commonwealth argues, “was that each

passing minute threatened the destruction of evidence” in Trahey’s bloodstream. Id. at

20. The threat of that diminishing evidentiary value was, in the Commonwealth’s words,

“exacerbated by constraints that delayed police from responding to the scene of the

accident,” but which lay outside the control of the officers. Id. Thus, the Commonwealth

concludes, the warrantless blood draw conducted in this case was justified by exigent

circumstances, and that exigency was not one of the officers’ own making.




                                     [J-64-2019] - 12
                                             III.

       Because Trahey prevailed before the suppression court, our scope of review

permits us to “consider only the evidence of the defense and so much of the evidence for

the Commonwealth as remains uncontradicted” in the record. Commonwealth v. Lukach,

195 A.3d 176, 183 (Pa. 2018) (quoting Commonwealth v. Mistler, 912 A.2d 1265, 1268-

69 (Pa 2006)). Trahey did not offer any evidence at the suppression hearing, however,

and relied solely upon legal propositions relating to the constitutionality of the warrantless

blood draw.    Accordingly, we may consider all of the Commonwealth’s evidence in

determining whether the suppression court’s findings of fact are supported by the record,

in which case they are binding upon this Court. Id. By contrast, we review the court’s

legal conclusions de novo. Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010).

       As a preliminary matter, we note that, although the legal question before us is

significantly informed by the Birchfield decision, the events at issue here preceded the

issuance of the Court’s opinion in that case.7 Accordingly, we recognize that the officers

in this matter had no reason to anticipate the subsequent change in the law. Moreover,

in the context of criminal sentencing for DUI offenses, where Birchfield also has

significantly altered the governing legal framework, we have held that the decision does

not apply retroactively to collateral attacks on the legality of sentences that became final

before Birchfield was decided. Commonwealth v. Olson, 218 A.3d 863 (Pa. 2019).

Nonetheless, litigants generally are entitled to benefit from changes in the law that

develop before their judgments of sentence become final, provided that “the issue in

question is properly preserved at all stages of adjudication up to and including any direct

appeal.”    Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983); accord


7     Trahey was arrested and subjected to a warrantless blood draw on September 4,
2015. The Supreme Court of the United States decided Birchfield on June 23, 2016.


                                      [J-64-2019] - 13
Commonwealth v. Hays, 218 A.3d 1260 (Pa. 2019). Trahey indisputably preserved his

challenge to the legality of the blood draw by filing, litigating, and prevailing on his

suppression motion prior to trial. Accordingly, although the investigating officers were

reasonably operating under an older understanding of the requirements of the Fourth

Amendment, Trahey is entitled to a review conducted through the lens of the Supreme

Court’s more recent pronouncements in this area.

                                              A.

       The Fourth Amendment provides:

       The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated,
       and no Warrants shall issue, but upon probable cause, supported by Oath
       or affirmation, and particularly describing the place to be searched, and the
       persons or things to be seized.


U.S. CONST. amend IV.

       Both breath tests and blood tests constitute “searches” within the meaning of the

Fourth Amendment. See Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602, 616-17

(1989); Schmerber v. California, 384 U.S. 757, 767-68 (1966). Accordingly, conducting

such a search without a warrant “is reasonable only if it falls within a recognized

exception” to the warrant requirement. McNeely, 569 U.S. at 148 (citing United States v.

Robinson, 414 U.S. 218, 224 (1973)). One such exception, as noted above, applies

where “the exigencies of the situation make the needs of law enforcement so compelling

that a warrantless search is objectively reasonable under the Fourth Amendment.” Id. at

148-49 (quoting King, 563 U.S. at 460). Although an exigency may present itself in a

variety of contexts, its defining trait is a “compelling need for official action and no time to

secure a warrant.” Id. at 149 (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)). Such

a need may arise, for instance, “to prevent the imminent destruction of evidence.” Id.

(citing Cupp v. Murphy, 412 U.S. 291, 296 (1973); Ker v. California, 374 U.S. 23, 40-41


                                       [J-64-2019] - 14
(1963)). In evaluating the presence of an exigency, we consider the totality of the

circumstances. Id. (citing Brigham City v. Stuart, 547 U.S. 398, 406 (2006)).

       In this case, the Superior Court’s legal conclusion—that the warrantless blood

draw was justified by exigent circumstances—rested upon the synthesis of two

propositions.    The first premise is that the anticipation of difficulty in obtaining and

executing a search warrant prior to the expiration of the two-hour window set forth in the

DUI statute, see, e.g., 75 Pa.C.S. § 3802(a)(2), the “optimal time period to obtain accurate

blood testing evidence,” Trahey, 183 A.3d at 452, gives rise to an urgent need for

warrantless testing. The second premise is that breath testing and blood testing are

materially equivalent with regard to that antecedent justification, i.e., that once the urgent

need for BAC testing is established, either type of test may be conducted without a search

warrant. A review of McNeely, Birchfield, and, most recently, Mitchell, reveals error in

this approach.

                                             B.

       In McNeely, the Court rejected the government’s argument that the natural

dissipation of alcohol in a DUI suspect’s bloodstream constitutes a “per se exigency” that

categorically justifies warrantless BAC testing. McNeely, 569 U.S. at 147. The Court

relied upon its 1966 decision in Schmerber, where it held that an officer who arrested a

DUI suspect at a hospital following an automobile accident lawfully could demand the

suspect’s submission to a warrantless blood test because, due to the body’s natural

metabolic processes, the officer “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

(internal quotation marks omitted). The McNeely Court clarified that Schmerber does not

stand for a per se rule in that regard, but in fact turned upon the individual facts and




                                      [J-64-2019] - 15
circumstances of the case, including the need to investigate the accident scene and to

allow the suspect to be transported to a hospital for medical treatment, which left “no time

to seek out a magistrate and secure a warrant.” McNeely, 569 U.S. at 151 (quoting

Schmerber, 384 U.S. at 771).

       Schmerber having failed to resolve the question of a per se rule, the McNeely Court

addressed whether the state’s proposed approach otherwise could be justified under the

exigent circumstances doctrine. The Court deemed such a rule inconsistent with the

“careful case-by-case assessment of exigency” required by the totality of the

circumstances test, id. at 152, and reasoned that adopting a per se rule would

countenance a “considerable overgeneralization” of the governing standard. Id. at 153

(quoting Richards v. Wisconsin, 520 U.S. 385, 393 (1997)). The proposed per se rule

further failed to “account for advances in the 47 years since Schmerber was decided that

allow for the more expeditious processing of warrant applications, particularly in contexts

like drunk-driving investigations where the evidence offered to establish probable cause

is simple.” Id. at 154. Adopting the state’s per se rule, “would improperly ignore the

current and future technological developments in warrant procedures, and might well

diminish the incentive for jurisdictions ‘to pursue progressive approaches to warrant

acquisition that preserve the protections afforded by the warrant while meeting the

legitimate interests of law enforcement.’” Id. at 156 (quoting State v. Rodriguez, 156 P.3d

771, 779 (Ut. 2007)).

       The Court acknowledged that, technological developments notwithstanding,

search warrant applications inevitably entail some amount of delay, and that certain

factual scenarios may support findings of exigent circumstances arising from “delays from

the warrant application process.” Id. at 156. The Court hypothesized, for example, that

“practical problems” such as issues arising from “the procedures in place for obtaining a




                                     [J-64-2019] - 16
warrant or the availability of a magistrate judge, may affect whether the police can obtain

a warrant in an expeditious way and therefore may establish an exigency that permits a

warrantless search.” Id. at 164. However, such a determination, the Court held, requires

a case-specific assessment of the circumstances.

       “In short,” the McNeely Court held, “while the natural dissipation of alcohol in the

blood may support a finding of exigency in a specific case, as it did in Schmerber, it does

not do so categorically.” Id. 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. Stated differently, “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 152.8

       McNeely having rejected the theory that the exigent circumstances doctrine

provides a blanket justification for warrantless BAC testing, a question remained as to

whether such testing could be justified categorically upon the basis of a different

exception to the warrant requirement. In Birchfield, the Court provided an answer. A

consolidation of three separate cases involving both breath and blood tests, the Birchfield

decision focused upon the categorical authority provided by the search-incident-to-arrest

doctrine.9 In a significant development of Fourth Amendment jurisprudence, the Birchfield

8      Portions of McNeely, principally those engaging the arguments of the responsive
opinions, did not garner majority support, rendering McNeely a plurality decision in part.
The foregoing quotations are taken only from the sections of the Court’s opinion that
received majority support, and that thus bind this Court.
9      The question before the Birchfield Court was whether a DUI arrestee could be
“convicted of a crime or otherwise penalized” for refusing to comply with warrantless
breath or blood testing. Birchfield, 136 S.Ct. at 2172. However, the Court treated this
question as a Fourth Amendment matter. The criminal law may not compel an individual
to submit to an unconstitutional search, but “[i]f, on the other hand, 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



                                     [J-64-2019] - 17
Court introduced a new distinction in the law between breath and blood tests, based upon

a comparative assessment of “the degree to which they intrude upon an individual’s

privacy and the degree to which they are needed for the promotion of legitimate

governmental interests.” Birchfield, 136 S.Ct. at 2176 (quoting Riley v. California, 573

U.S. 373, 385 (2014)) (cleaned up).

       A breath test, the Court reasoned, does not implicate “significant privacy

concerns.” Id. (quoting Skinner, 489 U.S. at 626). It requires no piercing of one’s skin,

entails minimal inconvenience or embarrassment, preserves no personal information

aside from BAC, and collects nothing that humans do not dispel naturally by ordinary

breathing. Id. at 2176-77. “Blood tests,” the Court reasoned, “are a different matter.” Id.

at 2178. Such tests involve piercing the skin and extracting material from a person’s body

that is not naturally dispelled.   Id.   Blood tests further allow for the collection and

preservation of a much broader array of information than a simple BAC reading. Id.

Accordingly, the Birchfield Court concluded that blood testing has a much greater impact

upon privacy interests than breath testing.

       Turning to the governmental interests implicated, the Court readily acknowledged

that both the state and federal governments have a “paramount interest” in preserving the

safety of public highways, and that BAC testing of impaired drivers serves that interest.

Id. (quoting Mackey v. Montrym, 443 U.S. 1, 17 (1979)). Rejecting the position of the

dissenting Justices, who would except neither breath nor blood testing from the warrant

requirement, the Court opined that, if every DUI arrest in the nation necessitated a search

warrant application, “the courts would be swamped.” Id. at 2180. The Court pointed to



make it a crime for a person to obstruct the execution of a valid search warrant.” Id. Thus,
the question of the legality of the criminal penalty was answered “by considering whether
the searches demanded in these cases were consistent with the Fourth Amendment.” Id.
at 2173.


                                      [J-64-2019] - 18
North Dakota, from which two of the three cases before it originated, highlighted the

relatively low number of judicial officers empowered to issue search warrants in that state,

and concluded that demanding a warrant for every BAC test there would not be a “light

burden.” Id. at 2181. Because the government’s interest in obtaining the evidence is

substantial, and because the search-incident-to-arrest doctrine encompasses a

recognition of the necessity of preventing the loss or “destruction” of evidence, id. at 2182

(citing Chimel v. California, 395 U.S. 752, 763 (1969)), the Court held that “the Fourth

Amendment permits warrantless breath tests incident to arrests for drunk driving.” Id. at

2184. “The impact of breath tests on privacy is slight, and the need for BAC testing is

great.”     Id.   “Blood tests,” by contrast, “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. The Court added that the government had “offered no satisfactory

justification for demanding the more intrusive alternative without a warrant.” Id.

          The Court noted that breath tests have been in common use for many years, that

their results are admissible in court and widely credited by juries, and that no party

disputed their “accuracy or utility.” Id. at 2184. “What, then,” the Court asked, “is the

justification for warrantless blood tests?” Id. The Court considered and rejected a number

of proposed justifications for warrantless blood testing, beginning with an observation that

anticipated the arguments offered in the instant case. A blood test, the Court noted, can

detect not only alcohol, “but also other substances that can impair a driver’s ability to

operate a car safely.” Id. “A breath test cannot do this,” the Court acknowledged, “but

police have other measures at their disposal when they have reason to believe that a

motorist may be under the influence of some other substance (for example, if a breath

test indicates that a clearly impaired motorist has little if any alcohol in his blood).” Id.

Further, a blood test may be administered to uncooperative or unconscious individuals




                                       [J-64-2019] - 19
who cannot or will not comply with breath testing procedures, or who deliberately attempt

to blow an insufficient breath sample. Id. at 2184-85. Despite these additional benefits

that blood testing may offer under certain circumstances, the Court remained

unpersuaded that these considerations justified a categorical exception to the warrant

requirement. In such situations, a case-specific exigency may be established, or “a

warrant for a blood test may be sought.” Id. at 2185.

       Summarizing its reasoning, the Court held that, “[b]ecause 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. Accordingly, breath tests, but not

blood tests, are categorically excepted from the Fourth Amendment’s warrant

requirement. Id.10

       The Supreme Court revisited this subject most recently in Mitchell.        A plurality

decision, Mitchell addressed a “narrow but important category of cases: those in which

the driver is unconscious and therefore cannot be given a breath test.” Mitchell, 139 S.Ct.

at 2531 (plurality). Building upon McNeely and Birchfield, the Mitchell plurality again

highlighted the compelling governmental interest in obtaining BAC evidence from

impaired drivers. Id. at 2535-37. Although, under Birchfield, a breath test generally

satisfies that interest, the Mitchell plurality observed that, “in the case of unconscious

drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the

compelling interests” of law enforcement. Id. at 2537. The question that the plurality



10     The Birchfield Court further rejected the government’s alternative argument that
the blood tests at issue could be justified upon the basis of a statutory “implied consent”
provision, holding that “motorists cannot be deemed to have consented to submit to a
blood test on pain of committing a criminal offense.” Birchfield, 136 S.Ct. at 2186. This
theory is not at issue in the instant case.


                                      [J-64-2019] - 20
framed was “whether this compelling need justifies a warrantless search” under the

exigent circumstances doctrine. Id.

       Under that doctrine, the plurality reasoned, a warrantless blood draw may be

permissible when, in conjunction with the dissipation of BAC evidence, “some other factor

creates pressing health, safety, or law enforcement needs that would take priority over a

warrant application.”   Id. The unconscious state of a motorist not only suggests a

dangerous degree of intoxication, but “is itself a medical emergency.” Id. (emphasis in

original). Further, many unconscious-driver cases will involve vehicular accidents, which

“might give officers a slew of urgent tasks” such as ensuring prompt medical attention for

other injured persons, providing first aid until medical personnel arrive, preserving

evidence, or blocking or redirecting traffic around the accident scene. Id. at 2538. Where

these “rival priorities” are present, officers may be required to delay a warrant application

and thus the BAC test, “to the detriment of its evidentiary value and all the compelling

interests served by BAC limits.” Id. Accordingly, where police officers have probable

cause to believe that a suspect has committed a DUI offense, but the suspect’s

unconscious state “requires him to be taken to the hospital or similar facility before police

have a reasonable opportunity to administer a standard evidentiary breath test,” the

officers “may almost always order a warrantless blood test to measure the driver’s BAC

without offending the Fourth Amendment.” Id. at 2539.11

11     Justice Thomas concurred only in the judgment of Mitchell, reiterating his
dissenting position in McNeely that warrantless BAC testing always should be permitted
under a per se exigency theory, “regardless of whether the driver is conscious.” Mitchell,
139 S.Ct. at 2539 (Thomas, J., concurring in the judgment). Because no single rationale
in Mitchell commanded a majority on any point, “the holding of the Court may be viewed
as that position taken by those Members who concurred in the judgment on the narrowest
grounds.” City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 764 n.9 (1988)
(quoting Marks v. United States, 430 U.S. 188, 193 (1977)) (bracket omitted). Justice
Thomas having advanced a broader rationale, the narrowest grounds supporting the
judgment were those offered by the plurality. Accordingly, the holding of Mitchell, in the



                                      [J-64-2019] - 21
       In light of these recent pronouncements, it is clear that the Supreme Court of the

United States has signaled its preference for breath testing in order to avoid the

undesirable consequence of BAC evidence dissipating as a result of the delays attending

the search warrant application process. The Birchfield Court’s constitutional distinction

between breath and blood testing is unmistakable, and the Mitchell plurality premised its

legal conclusion upon the existence of a circumstance in which “a breath test is

impossible.” Mitchell, 139 S.Ct. at 2531 (plurality). Indeed, the Mitchell plurality repeated

this limitation of its holding no fewer than ten times throughout its opinion.12

                                             C.

       Returning to the instant case, as noted above, the Superior Court premised its

finding of exigency upon the justifiable delay in police response to the accident scene, the

number of AID officers on duty that evening, and Officer Shead’s testimony detailing the

time frames involved in the search warrant application process in Philadelphia at the


plurality’s words, is that where a “driver is unconscious and therefore cannot be given a
breath test,” the “exigent-circumstances rule almost always permits a blood test without
a warrant.” Mitchell, 139 S.Ct. at 2531. See also People v. Eubanks, __ N.E.3d __, 2019
WL 6596704 at *13 n.6 (Ill. 2019) (concluding that the Mitchell plurality’s rationale
represents the Court’s holding).
12     See Mitchell, 139 S.Ct. at 2531 (plurality) (“the driver is unconscious and therefore
cannot be given a breath test”); id. (“When a breath test is impossible . . .”); id. at 2533
(“unconsciousness also deprived officials of a reasonable opportunity to administer a
breath test”); id. at 2534 (“no reasonable opportunity to give Mitchell a breath test using
‘evidence-grade breath testing machinery”); id. (“when a driver’s unconsciousness (or
stupor) eliminates any reasonable opportunity for [an evidence-grade] breath test”); id. at
2535 (“And when a breath test is unavailable to advance those aims, a blood test
becomes essential.”); id. at 2536 (“[W]hen a breath test is unavailable to promote those
interests, ‘a blood draw becomes necessary.’”); id. at 2537 (“Thus, in the case of
unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for
achieving the compelling interests described above.”); id. (“[T]here clearly is a ‘compelling
need’ for a blood test of drunk-driving suspects whose condition deprives officials of a
reasonable opportunity to conduct a breath test.”); id. at 2539 (“the driver’s
unconsciousness or stupor requires him to be taken to the hospital or similar facility before
police have a reasonable opportunity to administer a standard evidentiary breath test”).


                                      [J-64-2019] - 22
time—seventy minutes on the low end, and upwards of three hours on the high end.

Trahey, 183 A.3d at 452. After discussing Schmerber and McNeely, but not Birchfield’s

distinction between breath and blood, the Superior Court concluded that the expected

difficulty that the officers would have faced in obtaining a search warrant within two hours

after the accident, the “optimal time period to obtain accurate blood testing evidence,” id.,

gave rise to a case-specific exigency justifying a warrantless blood draw.

       The Superior Court’s analysis is problematic.         First, as Trahey repeatedly

emphasizes, the intermediate court paid no heed to the availability of a breath test in this

case. Brief for Trahey at 28 (“Trahey was sitting right next to the machine and no warrant

would be needed.”). Second, if an expected inability to obtain a search warrant within

two hours is sufficient to establish an exigency for a warrantless blood draw, and given

Officer Shead’s testimony that a warrant application alone may have taken over two hours

in Philadelphia at the time, the Superior Court’s reasoning would appear to permit a

determination that exigent circumstances existed automatically, perhaps for all DUI

arrests in the City of Philadelphia. This is a conclusion plainly in tension with McNeely’s

rejection of a per se exigency approach.

       We are cognizant of the significance of the two-hour period following the accident.

The officers’, Commonwealth’s, and Superior Court’s focus upon this time period derives

from the DUI statute itself. For alcohol-related offenses based upon a suspect’s BAC, the

statute requires proof of the suspect’s BAC “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(a)(2), 3802(b), 3802(c); see also id. § 3802(e) (relating to minors), 3802(f)

(relating to commercial or school vehicles).13           It is undoubtedly true that the

13     Recently, in Commonwealth v. Starry, __ A.3d __, 2020 WL 355367 (Pa. 2020),
this Court held that the DUI statute does not absolutely require BAC testing within two
hours, such that evidence of a suspect’s BAC obtained beyond the two-hour window



                                      [J-64-2019] - 23
Commonwealth has a significant interest in obtaining evidence of a suspect’s BAC within

this time period. This time frame not only relates to a necessary element of certain DUI

offenses, but it is, of course, well-understood that the alcohol in a suspect’s blood

dissipates relatively rapidly through natural metabolic processes, thus diminishing the

evidentiary value of a belated test. See generally McNeely, supra. We are further aware

of, and sympathetic to, the potential difficulties that an officer could face in seeking to

obtain and execute a search warrant within the two-hour window provided by the statute.14

These same concerns were a driving factor in the Birchfield Court’s decision to articulate

a categorical exception to the warrant requirement for a powerful evidentiary tool: a

breath test.

       Simply put, any concern about the time necessary to obtain a search warrant in

this context is significantly ameliorated, if not wholly extinguished, by the fact that no

search warrant is necessary under the Fourth Amendment to demand that a DUI arrestee

perform a breath test. Such a test is a valid search incident to a lawful arrest for DUI, and

the arrestee has “no right to refuse it.” Birchfield, 136 S.Ct. at 2186.




nonetheless may be “related back” so as to develop circumstantial evidence of the
suspect’s BAC during that timeframe.
14     Although the Commonwealth does not offer such a theory in this case, we note
that the DUI statute provides an exception to its “two-hour rule.” 75 Pa.C.S. § 3802(g).
The exception states that, where BAC is an element of a DUI offense, and BAC evidence
is obtained in excess of two hours after the suspect’s last operation of the vehicle, the
BAC nonetheless will suffice if the Commonwealth “shows good cause explaining why
the chemical test sample could not be obtained within two hours” and “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.” Id. § 3802(g)(1)-
(2); but see Starry, __ A.3d at __; 2020 WL 355367, at *6-7. Rather than allowing the
statutory two-hour rule to control the constitutional determination of exigent
circumstances, it would be more sensible to suggest that a delay occasioned by the
process for obtaining a search warrant for a blood draw constitutes “good cause” for
exceeding the statute’s two-hour window. We leave open such a theory for a future case.


                                      [J-64-2019] - 24
       Unsatisfied with the categorical permissibility of warrantless breath testing, the

Commonwealth asserts that Trahey has cited no precedent suggesting that the need for

a warrantless blood test must be bolstered by a showing that the police officers “could not

have performed a less accurate breathalyzer test.” Brief for Commonwealth at 18. To

the contrary, the Birchfield Court clearly stated that 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.”      Birchfield, 136 S.Ct. at 2184.      As for the

Commonwealth’s contention that breath tests are less accurate than blood tests—an

assertion for which it provides no empirical support—its grievance must be directed to the

Birchfield Court itself, which highlighted the commonality, admissibility, and credibility of

breath tests, and held, as a matter of federal constitutional law, that such tests “in most

cases amply serve law enforcement interests.” Id. at 2185.

       This brings us to the question, much like the one that the Birchfield Court asked,

of what law enforcement interest could not be served by a breath test in this case. The

Commonwealth asserts that the investigating officers had not only a prerogative, but a

“responsibility,” to obtain all evidence of potential intoxication, including any controlled

substances in Trahey’s bloodstream.            Brief for Commonwealth at 18.            The

Commonwealth further argues that it need not show discrete probable cause with respect

to controlled substances. Id. at 19. The Commonwealth’s argument echoes Officer

Shead’s testimony explaining that the officers chose a blood test in this case because “a

Breathalyzer only shows someone’s blood alcohol concentration,” and does not reveal

whether there are “other intoxicants” in the suspect’s system, i.e., controlled substances.

N.T. at 128.

       The Commonwealth does not suggest, however, that the same concerns regarding

the rapid dissipation of alcohol in the bloodstream apply to controlled substances. The




                                      [J-64-2019] - 25
timing constraints that animated the decisions in McNeely, Birchfield, and Mitchell all

related to the evanescent nature of alcohol in a suspect’s breath or blood, which

deteriorates in a matter of hours. None of those decisions suggested that controlled

substances raise the same concerns.        Indeed, the DUI statute facially reflects the

diminished urgency of testing for controlled substances, inasmuch as its two-hour rule

does not apply to the offense of driving under the influence of controlled substances. See

75 Pa.C.S. § 3802(d); Commonwealth v. Wilson, 101 A.3d 1151, 1156 (Pa. Super. 2014)

(“[W]e find that the absence of any such time requirement in subsection 3802(d) [is]

persuasive that the legislature did not envision a time limit on testing for the presence of

controlled substances after driving.”).    Moreover, there is no range of permissible

concentrations of prohibited substances in a motorist’s bloodstream; rather, “any amount”

of such a substance in a motorist’s system constitutes an offense.             75 Pa.C.S.

§ 3802(d)(1). This further establishes the absence of a need for testing within two hours.

Accordingly, even if a search warrant application were to take the full three hours that

Officer Shead posited that it may, there is minimal risk that evidence of controlled

substances in the suspect’s blood would reduce to a completely undetectable level within

that time.

       In effect, the Commonwealth asks this Court to conclude that, because there was

an urgent need to test for Trahey’s blood alcohol concentration within two hours—a need

that could be satisfied with a breath test—there accordingly were exigent circumstances

justifying a warrantless blood test for controlled substances, a category of evidence that

does not require testing within two hours.15 We cannot endorse this conclusion. Exigent

15     Further, this Court’s recent decision in Starry, see supra n.13, undercuts the
Commonwealth’s assertion of exigency as it relates to the DUI statute’s two-hour window.
The Starry Majority made clear that its relation-back rationale and the good-cause
exception are “statutory alternatives made available to the prosecution.” Starry, __ A.3d
at __; 2020 WL 355367, at *6. Accordingly, pursuant to Starry, there was no absolute



                                     [J-64-2019] - 26
circumstances are defined by a “compelling need for official action and no time to secure

a warrant.” McNeely, 569 U.S. at 149 (quoting Tyler, 436 U.S. at 509)). With regard to

alcohol, there is no need for a warrantless blood test because the “less invasive

alternative of a breath test” adequately serves the government’s interest in obtaining the

evidence sought. Birchfield, 136 S.Ct. at 2184. With regard to controlled substances, a

blood test may be necessary, but there is no pressing need to conduct the test within a

specified time, and thus no exigency.16


requirement that the investigating officers must have obtained evidence of Trahey’s BAC
within two hours after his last operation of a vehicle. Rather, upon the execution of a BAC
test outside the statutory two-hour window, and even absent a showing of good cause for
delay, Trahey’s BAC could have been related back to the relevant timeframe, thus
diminishing the need for exceptional haste in order to satisfy a rigid timeframe.
16      The Concurrence expresses concern that we have relied too heavily upon the
availability of a breath test in assessing the need for a warrantless blood test, opining that
“the two tests are separate and distinct, and access to a breath test does not necessarily
affect a warrant application or the applicability of an exception to the warrant requirement
for obtaining a blood test.” Conc. Op. at 1 (Mundy, J.). This position is flatly contradicted
by the language of Birchfield, which the Concurrence quotes, but does not reconcile:
“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.” Birchfield, 136
S.Ct. at 2184.
        Certainly, the Concurrence is correct that breath tests and blood tests are
“separate and distinct.” Conc. Op. at 1 (Mundy, J.). The Birchfield Court’s rationale was
expressly comparative, viewing the tests in light of “the degree to which they intrude upon
an individual’s privacy and the degree to which they are needed for the promotion of
legitimate governmental interests.” Birchfield, 136 S.Ct. at 2176 (quoting Riley, 573 U.S.
at 385 (cleaned up)). The Court unmistakably premised its legal conclusion upon the
much greater degree of invasion into protected privacy interests that attends blood testing
as compared to breath testing, the latter of which, with regard to BAC detection, is
“significantly less intrusive” and “in most cases amply serve[s] law enforcement interests.”
Id. at 2185. This conclusion is markedly amplified by the Mitchell plurality’s much-
repeated emphasis that its exigency determination was premised upon the unavailability
of breath testing in the unconscious-driver scenario. See supra at 21-22 & n.12. Indeed,
the Concurrence’s suggestion that the availability of one type of test does not impact the
permissibility of the other is further contradicted by Birchfield, inasmuch as the Court
suggested that police officers may need to conduct a blood test “when they have reason
to believe that a motorist may be under the influence of some other substance (for



                                      [J-64-2019] - 27
       As the suppression court concluded, “[t]his is a case where a Breathalyzer could

have been taken.” N.T. at 181. Trahey was conscious and sitting in the same room as

an Intoxilyzer 8000 breath-testing machine. Id. at 23. There was no stated indication that

Trahey was under the influence of a controlled substance, but probable cause to suspect

non-alcoholic intoxication could have been established if, among any number of potential

circumstances, a breath test revealed that alcohol would not explain the degree of

Trahey’s apparent intoxication. See Birchfield, 136 S.Ct. at 2184. Had the investigating

officers developed probable cause to suspect the presence of controlled substances in

Trahey’s blood, they could have obtained a search warrant for a blood draw subject to no

timing limitations.

       The Superior Court was correct that the exigency analysis is an objective one.

Trahey, 183 A.3d at 451. However, even disregarding the officers’ subjective motivations,

or their candid acknowledgment that they would have obtained a search warrant if they

thought it necessary, see N.T. at 127-28, there was no time-sensitive need to conduct a



example, if a breath test indicates that a clearly impaired motorist has little if any alcohol
in his blood).” Birchfield, 136 S.Ct. at 2184. Thus, Birchfield reasoned that not only does
the availability of a breath test impact the assessment of the need for a blood test, but the
result of a breath test may as well.
        Although the Concurrence highlights that Birchfield did not hold that there can
never be exigent circumstances supporting a warrantless blood draw, Conc. Op. at 2
(Mundy, J.), nor do we so hold. Case-specific showings of exigency under the totality of
the circumstances are always available under the Fourth Amendment. But the exigent
circumstances doctrine requires the demonstration of a “compelling need for official
action” and “no time to secure a warrant.” McNeely, 569 U.S. at 149 (quoting Tyler, 436
U.S. at 509). By weighing the need to obtain a blood sample under the circumstances of
this DUI investigation against the evidence to which the search was directed and for which
probable cause was obtained, and by viewing that need in light of the less invasive means
available to effectuate the search, we have not erred by any means. We have simply
applied the reasoning of Birchfield and Mitchell, and assessed the “reasonableness” of a
“significantly more intrusive” warrantless blood draw “in light of the availability of the less
invasive alternative of a breath test.” Birchfield, 136 S.Ct. at 2184.


                                      [J-64-2019] - 28
warrantless blood test under the circumstances of this case. Accordingly, the Superior

Court’s conclusion that the test was justified by exigent circumstances was drawn in error.

       The order of the Superior Court is reversed, and the matter is remanded for further

proceedings consistent with this Opinion.

       Justices Baer, Todd, Donohue and Dougherty join the opinion.

       Justice Mundy files a concurring opinion in which Chief Justice Saylor joins.




                                     [J-64-2019] - 29
