J-S72006-16


                                   2017 PA Super 18

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

KIM DAVID MARCH

                            Appellee                    No. 530 MDA 2016


                  Appeal from the Order Entered March 3, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0005650-2015


BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

OPINION BY GANTMAN, P.J.:                             FILED JANUARY 26, 2017

       Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Berks County Court of Common Pleas, which granted the

suppression motion of Appellee, Kim David March, and suppressed the

results of his blood alcohol test (“BAC”).1      For the following reasons, we

reverse and remand for further proceedings.

       The relevant facts and procedural history of this case are as follows.

On July 14, 2015, Sergeant Kimberly Brown of the Cumru Township Police

____________________________________________


1
  The Commonwealth has certified in its notice of appeal that the trial court’s
suppression order substantially handicapped or terminated the prosecution
of the Commonwealth’s case. Accordingly, this appeal is properly before us
for review. See Pa.R.A.P. 311(d); Commonwealth v. Astillero, 39 A.3d
353, 354 n.1 (2012).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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Department responded at 6:31 p.m. to a single vehicle accident at 601

Philadelphia Avenue, near Cumru Elementary School. When Sergeant Brown

arrived at the scene around 6:36 p.m., EMS was already there, treating

Appellee, who was the unresponsive, male driver. EMS then took Appellee

to Reading Hospital for emergency medical care and treatment.         Sergeant

Brown learned from witnesses to the accident that the vehicle had been

traveling eastbound on Philadelphia Avenue when it drove across the

westbound lane, went off the road, and struck a tree and utility pole.

Witnesses stated the vehicle “did not appear to have a reason to drive off of

the roadway.” Witnesses also described the driver as “out of it” and “pale.”

Police were able to identify Appellee through vehicle registration.

      In plain view inside the vehicle, Sergeant Brown noticed five blue wax

paper bags and the bottom of a cut-off prescription bottle on the floor of the

vehicle near the driver’s seat.    The prescription bottle contained residue

consistent with liquid added to heroin and used in the injection of

hypodermic needles. Another officer saw a hypodermic needle on the floor

of the front passenger side of the vehicle.

      Sergeant Brown went directly to Reading Hospital, where she

requested a sample of Appellee’s blood. Although police now had probable

cause, Appellee was not yet under arrest.     Appellee was unconscious, and

Sergeant Brown could not read the Implied Consent DL26 form to Appellee.

Appellee’s blood was drawn at 7:59 p.m.; the results indicated the presence


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of several Schedule I controlled substances in Appellee’s blood.

        On August 6, 2015, the Commonwealth charged Appellee with DUI

(controlled substance), possession of drug paraphernalia, possession of a

controlled substance, and a summary traffic offense, arising from the

accident. The Commonwealth later added another related DUI charge. On

January 14, 2016, Appellee filed an omnibus pretrial motion containing a

motion to suppress the blood evidence as based on an alleged illegal blood

draw.    The court held a suppression hearing on February 12, 2016.          The

parties stipulated to the facts in the affidavit of probable cause and that a

search warrant was not obtained prior to the draw of Appellee’s blood.

        On March 3, 2016, the court issued its Findings of Fact and

Conclusions    of   Law   and   suppressed   the   blood   test   results.   The

Commonwealth timely filed a notice of appeal on March 31, 2016. On April

1, 2016, the court ordered the Commonwealth to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which the

Commonwealth timely filed on April 18, 2016.

        The Commonwealth presents one issue for our review:

          DID THE TRIAL COURT ERR IN SUPPRESSING EVIDENCE
          OF [APPELLEE’S] BLOOD TEST RESULTS, AS THE POLICE
          HAD THE REQUISITE REASONABLE SUSPICION/PROBABLE
          CAUSE TO REQUEST A LEGAL BLOOD DRAW WITHOUT A
          WARRANT PURSUANT TO THE IMPLIED CONSENT
          STATUTE?

(Commonwealth’s Brief at 4).

        The relevant standard and scope of review is:

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        When the Commonwealth appeals an order suppressing
        evidence, we may consider on review only the evidence
        from the defendant’s witnesses along with the
        Commonwealth’s evidence that remains uncontroverted.
        Our standard of review is restricted to establishing whether
        the record supports the suppression court’s factual
        findings; however, we maintain de novo review over the
        suppression court’s legal conclusions.

Commonwealth v. Guzman, 44 A.3d 688, 691-92 (Pa.Super. 2012) (citing

Commonwealth v. Brown, 606 Pa. 198, 203, 996 A.2d 473, 476 (2010)).

     In its argument, the Commonwealth asserts that the Pennsylvania

Implied Consent Statute, at 75 Pa.C.S.A § 1547, is an independent

exception to the warrant requirement.    The Commonwealth observes that

Appellee was unconscious and unable to refuse the test, and Pennsylvania

law has declined to provide unconscious persons with the right to refuse

chemical testing.   Additionally, Appellee was involved in a motor vehicle

accident that required medical treatment, there was evidence of the use of

controlled substances present at the scene of the accident, and probable

cause existed to request a legal blood draw.           The Commonwealth

emphasizes that Pennsylvania has declined to extend the right to refuse

blood testing to unconscious persons, and there was probable cause to

believe Appellee had violated 75 Pa.C.S.A. § 3802, so the blood draw was

valid. The Commonwealth concludes the trial court erred in suppressing the

blood test results under these circumstances, and asks this Court to reverse

and remand the case for trial.

     In response, Appellee primarily relies on Commonwealth v. Myers,

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

480 (2016), for the proposition that a warrantless blood test of an

unconscious person, under Pennsylvania’s Implied Consent Statute, violates

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

U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), where the Court held

that the dissipation of alcohol in the blood does not constitute a per se

urgency to justify a warrantless blood test under the “exigent circumstances”

exception to the warrant requirement. Appellee concludes the warrantless

test of his blood was unconstitutional under McNeely, and the results from

his test should remain suppressed, because the facts of his case are virtually

indistinguishable from Myers. For the following reasons, we disagree with

Appellee’s position and agree with the Commonwealth’s position.

      Analysis of this case involves the intersection of two relevant statutes;

the first statute is Pennsylvania’s implied consent statute, which provides in

pertinent part:

         § 1547. Chemical testing to determine amount of
         alcohol or controlled substance

         (a) General rule.−Any person who drives, operates or
         is in actual physical control of the movement of a vehicle in
         this Commonwealth shall be deemed to have given
         consent to one or more chemical tests of breath, blood or
         urine for the purpose of determining the alcoholic content
         of blood or the presence of a controlled substance if a
         police officer has reasonable grounds to believe the person
         to have been driving, operating or in actual physical
         control of the movement of a vehicle:

          (1) in violation of section 1543(b)(1.1) (relating to

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         driving while operating privilege is suspended or
         revoked), 3802 (relating to driving under influence of
         alcohol or controlled substance) or 3808(a)(2) (relating
         to illegally operating a motor vehicle not equipped with
         ignition interlock); or

                                 *    *    *

       (b)    Suspension for refusal.−

         (1) If any person placed under arrest for a violation of
         section 3802 is requested to submit to chemical testing
         and refuses to do so, the testing shall not be conducted
         but upon notice by the police officer, the department
         shall suspend the operating privilege of the person as
         follows:

          (i) Except as set forth in subparagraph (ii), for a period
          of 12 months.

          (ii) For a period of 18 months if any of the following
          apply:

                                *     *    *

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

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

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

         (3) Any person whose operating privilege is suspended
         under the provisions of this section shall have the same
         right of appeal as provided for in cases of suspension for
         other reasons.

                                *     *    *

       (c) Test results admissible in evidence.―In any

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          summary proceeding or criminal proceeding in which the
          defendant is charged with a violation of section 3802 or
          any other violation of this title arising out of the same
          action, the amount of alcohol or controlled substance in
          the defendant’s blood, as shown by chemical testing of the
          person’s breath, blood or urine, which tests were
          conducted by qualified persons using approved equipment,
          shall be admissible in evidence.

                                 *    *     *

75 Pa.C.S.A. § 1547(a)(1), (b)(1)(i-ii), (b)(2)(i-ii), (b)(3), (c).     Legal

precedent has interpreted the “reasonable grounds” requirement of Section

1547(a) to demand probable cause.         Commonwealth v. Riedel, 539 Pa.

172, 180, 651 A.2d 135, 139-40 (1994) (citing Commonwealth v. Cieri,

499 A.2d 317, 322 (Pa.Super. 1985)). Under these circumstances, probable

cause exists where “the officer has knowledge of sufficient facts and

circumstances to warrant a prudent person to believe that the driver had

been driving under the influence of alcohol or a controlled substance.”

Commonwealth v. Simon, 655 A.2d 1024, 1027 (Pa.Super. 1995)

(quoting Commonwealth v. Welshans, 580 A.2d 379, 381 (Pa.Super.

1990)).

     Generally, “a search or seizure is unreasonable unless conducted

pursuant to a valid search warrant upon a showing of probable cause.”

Commonwealth v. Miller, 996 A.2d 508, 512 (Pa.Super. 2010).            One of

the standard exceptions to the warrant requirement is consent, either actual

or implied. Riedel, supra at 179, 651 A.2d at 139. The Implied Consent

Statute dispenses with the need to obtain a warrant in DUI cases, because

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the driver’s implied consent under the statute satisfies the consent exception

to the warrant requirement.     Riedel, supra; Commonwealth v. Barton,

690 A.2d 293, 296 (Pa.Super. 1997).

       Under the Implied Consent Statute, consent is a given and “testing is

allowed absent an affirmative showing of the subject’s refusal to consent to

the test at the time that the testing is administered.” Commonwealth v.

Eisenhart, 531 Pa. 103, 109, 611 A.2d 681, 683 (1992). See also Riedel

supra at 183, 651 A.2d at 141.       Because consent is implied, a person’s

“actual consent would be no different from his remaining silent.” Eisenhart,

supra at 108-9, 611 A.2d at 683. Section 1547 “grants an explicit right to a

driver who is under arrest for driving under the influence to refuse to

consent to chemical testing.”    Id. at 109, 611 A.2d at 683.       See also

Riedel, supra at 183, 651 A.2d at 141. On the other hand, a driver who is

not under arrest at the time the blood test is administered “cannot claim the

explicit statutory protection of section 1547(b).”   Id. at 184, 651 A.2d at

142.

       As the decision to “distinguish between classes of drivers in the

implied consent scheme is within the province of the legislature,” the

Pennsylvania Supreme Court has refused to “reformulate the law to grant an

unconscious driver or driver whose blood was removed for medical purposes

the right to refuse to consent to blood testing.” Id. at 185, 651 A.2d at 142.

(some internal citations omitted).    This concept brings us to the other


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statute implicated in this case, which covers reports by emergency room

personnel and provides:

         § 3755. Reports by emergency room personnel

         (a) General rule.−If, as a result of a motor vehicle
         accident, the person who drove, operated or was in actual
         physical control of the movement of any involved motor
         vehicle requires medical treatment in an emergency room
         of a hospital and if probable cause exists to believe a
         violation of section 3802 (relating to driving under
         influence of alcohol or controlled substance) was involved,
         the emergency room physician or his designee shall
         promptly take blood samples from those persons and
         transmit them within 24 hours for testing to the
         Department of Health or a clinical laboratory licensed and
         approved by the Department of Health and specifically
         designated for this purpose.         This section shall be
         applicable to all injured occupants who were capable of
         motor vehicle operation if the operator or person in actual
         physical control of the movement of the motor vehicle
         cannot be determined. Test results shall be released
         upon request of the person tested, his attorney, his
         physician or governmental officials or agencies.

                                 *    *    *

75 Pa.C.S.A. § 3755(a) (emphasis added).       Section 3755 comes into play

when the defendant requires medical treatment “as a result of a motor

vehicle accident,” and there is probable cause to believe a DUI is involved;

in that circumstance, police can request a blood draw and/or the test results,

without a warrant.    75 Pa.C.S.A. § 3755(a).      Compare Myers, supra

(holding Section 1547 prevailed over Section 3755, where case did not

involve motor vehicle accident, defendant was conscious when arrested, and

police waited until defendant was rendered unconscious by hospital


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administration of medication to seek chemical testing; defendant retained

protection of implied consent law and right to refuse testing under these

circumstances; police could not wait until defendant was reduced to

unconscious by medication to invoke Section 3755 and claim exigent

circumstances).

      Both our Supreme Court and this Court have previously concluded:

         [T]ogether, sections 1547 and 3755 comprise a statutory
         scheme which, under particular circumstances, not only
         imply the consent of a driver to undergo chemical or blood
         tests, but also require hospital personnel to withdraw blood
         from a person, and release the test results, at the request
         of a police officer who has probable cause to believe the
         person was operating a vehicle while under the influence.

Barton, supra at 296 (citing Riedel, supra at 180, 651 A.2d at 139-40).

The legislature enacted these two statutes to “allow law enforcement to

preserve blood samples of a person suspected of driving under the influence

of drugs or alcohol.”    Miller, supra at 512 (citing Commonwealth v.

West, 834 A.2d 625, 628 (Pa.Super. 2010), appeal denied, 586 Pa. 712,

889 A.2d 1216)). The purpose of statutory implied consent is “to enable the

police to obtain evidence of intoxication or drug use to be utilized in criminal

proceedings”; the purpose is “not to hinder law enforcement officers in

performing their duties under sections 3755 and 1547 when they have

probable cause.”    Riedel, supra at 182, 651 A.2d at 140 (emphasis in

original).

      Under Sections 1547 and 3755:


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         [O]nce an officer establishes probable cause to believe that
         a person operated a motor vehicle under the influence, and
         subsequently requests that hospital personnel withdraw
         blood samples for testing of alcohol content, the officer is
         entitled to obtain the results of such tests, regardless of
         whether the test was performed for medical purposes or
         legal purposes.

Barton, supra at 299-300. The Pennsylvania Supreme Court has, however,

stated, “[o]ur decision does not grant police officers carte blanche to invade

the privacy of an individual’s medical records.” Id. at 300 (quoting Riedel,

supra at 183, 651 A.2d at 141).       Instead, the “scope of the intrusion is

limited to obtaining the results of the blood test.” Barton, supra at 300.

      In other words, the statutes and pertinent law tell us that if a driver is

involved in a motor vehicle accident, is unconscious, and requires immediate

hospital medical treatment, and the police have probable cause to believe

the motorist was DUI, then the police can request and receive blood test

results from hospital personnel without a warrant.       See 75 Pa.C.S.A. §§

1547, 3755; Riedel, supra; Barton, supra.

      In the present case, police responded at 6:31 p.m. to a single vehicle

accident. When police arrived at the scene, EMS was already there, treating

Appellee, who was the unresponsive, male driver. EMS then took Appellee

to Reading Hospital for medical treatment.      Sergeant Brown learned from

witnesses to the accident that Appellee’s vehicle had been traveling

eastbound on Philadelphia Avenue before it crossed into the westbound lane,

went off the road, and struck a tree and utility pole.          Witnesses also


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described the driver as “out of it” and “pale.” Police were able to identify

Appellee through vehicle registration.

      When Sergeant Brown approached the empty vehicle, she noticed five

blue wax paper bags and the bottom of a cut-off prescription bottle on the

floor of the vehicle near the driver’s seat. The prescription bottle contained

residue consistent with liquid added to heroin and used in the injection of

hypodermic needles. Another officer saw a hypodermic needle on the floor

of the front passenger side of the vehicle.    Given this probable cause to

suspect DUI was involved, Sergeant Brown went to Reading Hospital, where

she requested a sample of Appellee’s blood.         Although police now had

probable cause to suspect DUI, Appellee was not yet under arrest. Appellee

was also unconscious so Sergeant Brown did not read the Implied Consent

DL26 form to Appellee. Appellee’s blood was drawn at 7:59 p.m., and the

results indicated the presence of several Schedule I controlled substances in

Appellee’s blood. As a result, the Commonwealth charged Appellee with DUI

and related offenses. Appellee filed an omnibus pretrial motion to suppress

the blood evidence as illegally obtained.     The court held a suppression

hearing on February 12, 2016, where the parties stipulated to the facts in

the affidavit of probable cause. On March 3, 2016, the court suppressed the

blood test results, reasoning as follows:

                                 Findings of Fact

         1.  On July 14, 2015, Sergeant Kimberly Brown of the
         Cumru Township Police Department responded to a single

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       vehicle accident near Cumru Elementary School, located at
       601 Philadelphia Avenue in Berks County, Pennsylvania.

       2.   When Sergeant Brown arrived at approximately 6:36
       P.M., EMS was already there providing medical treatment
       to an unresponsive male.

       3.   Sergeant Brown learned from witnesses that the
       vehicle was driving eastbound on Philadelphia Avenue until
       it went off the road, striking a tree and a utility pole.

       4.   Sergeant Brown learned from witnesses that the
       operator of the vehicle was “out of it” and “pale.”

       5.   Sergeant Brown approached the vehicle and observed
       five blue wax paper bags and the bottom of a cut-off
       prescription bottle on the driver’s side floor.

       6.   The blue wax paper bags contained a powder that
       was field tested and yielded a presumptive positive for
       heroin.

       7.   Sergeant Pinkasavage observed a hypodermic needle
       on the front passenger floor of the vehicle.

       8.   Sergeant Brown proceeded to Reading Hospital,
       where she requested that a sample of the Defendant’s
       blood be drawn pursuant to the implied consent law.

       9.  The Defendant was not conscious when Sergeant
       Brown made the request.

       10. Sergeant Brown did not read the DL26 form to the
       Defendant.

       11. At approximately 7:59 P.M., blood was drawn by the
       phlebotomist and placed in tubes with the wrong name
       listed on them.

       12. The lab would not accept the tubes until the labels
       were corrected.

       13. The labels on the tubes were subsequently corrected.


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       14. According to the National Institute of Health, heroin
       can be detected in the body for one to two days, as
       opposed to alcohol, which can only be detected for three to
       ten hours.²

          ²https://www.nlm.nih.gov/medlineplus/ency/article/
          003578.htm

                          Conclusions of Law

       1.    “Once a motion to suppress evidence has been filed,
       it is the Commonwealth’s burden to prove, by a
       preponderance of the evidence, that the challenged
       evidence was not obtained in violation of the defendant’s
       rights.” Commonwealth v. Wallace, 615 Pa. 395, 407,
       42 A.3d 1040, 1047-48 (Pa. 2012).

       2.   The Fourth Amendment to the United States
       Constitution 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 person or
       things to be seized.”

       3.    A warrantless search of the person is reasonable only
       if it falls within a recognized exception.     See United
       States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467,
       [471, 38 L.Ed.2d 427, ___] (1973).

       4.   “One well-recognized exception applies when the
       exigencies of the situation make the needs of law
       enforcement so compelling that a warrantless search is
       objectively reasonable under the Fourth Amendment.”
       Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849,
       1856[, 179 L.Ed.2d 865, ___] (2011).

       5.   The United States Supreme court held that the
       natural [metabolism] of alcohol in the bloodstream does
       not present a per se exigency that justifies an exception to
       the Fourth Amendment’s warrant requirement for
       nonconsensual blood testing. [McNeely, supra].


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       6.    The Court further held that “exigency in this context
       must be determined case by case based on the totality of
       the circumstances.” Id.

       7.    “In those drunk-driving investigations where police
       officers can reasonably obtain a warrant before a blood
       sample can be drawn without significantly undermining the
       efficacy of the search, the Fourth Amendment mandates
       that they do so.” Id. at 1561.

       8.   The Pennsylvania Superior Court held that 75
       Pa.C.S.A. § 1547(b)(1) provides a driver “with the
       statutory right of refusal to blood testing.” [Myers,
       supra].

       9.    In Myers, the Superior Court held that a warrantless
       blood draw of an unconscious individual that was
       performed pursuant to Pennsylvania’s implied consent law
       violated the United States Supreme Court’s holding
       [McNeely, supra.]

       10. All of the cases cited by the Commonwealth were
       decided prior to the Superior Court’s holding in Myers.

       11. Other than the fact that the police officer in Myers
       read the standard implied consent warnings to the
       unconscious defendant while Sergeant Brown, in the
       instant case, did not, the facts of this case are nearly
       indistinguishable from the facts in Myers.

       12. In addition, [Appellee] in the instant case was
       suspected of being under the influence of heroin, which is
       detectable for a longer period of time than alcohol.

       13. Therefore, the exigency in this case was even less
       than it was in Myers. The Commonwealth could have
       waited for [Appellee] to gain consciousness and either
       consent to or refuse the blood test.

       14. In the alternative, the Commonwealth could have
       obtained a search warrant.

       15. Since the Commonwealth did neither, the blood test
       results must be suppressed because they violate the

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           Superior Court’s holding in [Myers, supra].

(Suppression Court’s Findings of Fact and Conclusions of Law, filed March 3,

2016, at 3-6).     We respectfully disagree with the court for the following

reasons.

      Initially, the suppression court’s and Appellee’s reliance on McNeely is

incorrect because the McNeely analysis did not involve an automobile

accident or the “consent” exception under an Implied Consent Statute.

McNeely involved a motor vehicle stop for speeding and crossing the

centerline of the road.    After the defendant refused a breathalyzer test,

police placed the defendant under arrest and took him to a hospital for blood

testing. Police did not attempt to obtain a search warrant. At the hospital,

and after a police officer read the implied consent form to the defendant, the

defendant refused to consent to a blood draw.        Despite the refusal, the

police officer directed hospital personnel to proceed with the test.       The

defendant moved to suppress the blood test results, arguing the warrantless

drawing of his blood violated his Fourth Amendment rights. The McNeely

Court held that the dissipation of alcohol in blood does not constitute a valid

per se exigency to justify a warrantless blood test.     The McNeely Court

analyzed the issue solely under the “exigent circumstances” exception to the

Fourth Amendment warrant requirement.            Because the defendant in

McNeely had explicitly declined a blood test under Missouri’s Implied

Consent Law, the state tried to use the “exigent circumstances” exception to


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the warrant requirement to get around the defendant’s refusal.            The

McNeely Court refused to adopt a categorical “rule of exigency” in DUI

cases. See McNeely, supra.

      In contrast to McNeely, here Appellee was involved in a motor vehicle

accident and removed, unconscious, from the scene by ambulance for

emergency medical treatment, thus triggering Section 3755. Appellee was

not under arrest, so he had no right to refuse the blood test under

Pennsylvania’s Implied Consent Statute.        See Riedel, supra.       While

Appellee was at the hospital, police investigated the accident and uncovered

probable cause to believe a DUI was involved.          Given the automobile

accident and the probable cause to suspect DUI, police were allowed to

request and receive blood test results from hospital personnel without a

warrant. See 75 Pa.C.S.A. §§ 1547, 3755; Riedel, supra; Barton, supra.

Because McNeely involved only the “exigent circumstances” exception to

the warrant requirement, it is not dispositive of the present case.

      Likewise, the suppression court’s and Appellee’s reliance on Myers is

misplaced because the facts of Myers are distinguishable. In Myers, police

observed the defendant sitting in his parked vehicle while sporadically

pressing the brake pedal.      The defendant then exited his vehicle and

approached the police cruiser.     The defendant appeared intoxicated and

smelled like alcohol, so police placed him under arrest, based on probable

cause to believe he could not safely operate his vehicle.      Police called a


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wagon and transported the defendant to the hospital to be medically

cleared.   About forty-five minutes later, a police officer arrived at the

hospital. By that time, medications given by the medical staff had rendered

the defendant unconscious. Despite his unconscious state, the officer read

to him the standard informed consent form and requested hospital staff to

perform a warrantless blood draw.            The trial court suppressed the

warrantless blood draw under the totality of these circumstances, because

the defendant was under arrest, he was unconscious and not properly given

the right to refuse the blood test, the police had plenty of time to obtain a

warrant, and alcohol in the blood is not a per se exigency.      See Myers,

supra.

      In contrast to Myers, here Appellee was involved in a motor vehicle

accident and removed unconscious from the scene by ambulance for

emergency medical treatment, thus triggering Section 3755. Appellee was

not under arrest, so he had no right to refuse the blood test under

Pennsylvania’s Implied Consent Statute.       See Riedel, supra.     In other

words, Appellee could not claim the explicit right that a driver, who is under

arrest for DUI, has to refuse to consent to chemical testing. See Eisenhart,

supra.     While Appellee was already removed to the hospital, police

investigated the accident and uncovered probable cause to believe a DUI

was involved.   Given the automobile accident and the probable cause to

suspect DUI, the police had statutory authority to request and receive blood


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test results from hospital personnel without a warrant. See 75 Pa.C.S.A. §§

1547, 3755; Riedel, supra; Barton, supra. Thus Myers is not dispositive

of the present case.

     Finally, Appellee was unconscious and unresponsive at the scene of the

accident. The Pennsylvania Supreme Court has refused to “reformulate the

law to grant an unconscious driver or driver whose blood was removed for

medical purposes the right to refuse to consent to blood testing,” so

Appellee did not have the right to refuse consent in this case in any event.

See Riedel, supra at 185, 651 A.2d at 142.        Unlike the McNeely and

Myers cases, the interplay between the law on implied consent and the law

on the reports by emergency room personnel law in the instant case allowed

for Appellee’s warrantless blood draw and release of the results.       See

Barton, supra at 296 (citing Riedel, supra at 180, 651 A.2d at 139-40)

(referring to “statutory scheme” that implies consent of driver to undergo

chemical testing and requires hospital personnel “to withdraw blood from a

person, and release the test results, at the request of a police officer who

has probable cause to believe the person was operating a vehicle while

under the influence”).   Because Appellee was involved in a motor vehicle

accident, was unconscious at the scene and required immediate medical

treatment, was not under arrest, and remained unconscious when the blood

tests were administered, the warrantless blood draw was permissible.

Therefore, we hold the court erred in suppressing the results of Appellee’s


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blood test. Accordingly, we reverse and remand for further proceedings.

      Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2017




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