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COMMONWEALTH v. WOLPERT (06/14/73)

decided: June 14, 1973.

COMMONWEALTH
v.
WOLPERT, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 908 of 1971, in case of Commonwealth of Pennsylvania v. Eugene C. Wolpert.

COUNSEL

William E. Chillas, with him May, Grove, Stork and Blakinger, for appellant.

Henry J. Rutherford, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J. Wright, P. J. and Watkins, J., would affirm on the opinion of the court below.

Author: Spaulding

[ 224 Pa. Super. Page 362]

Appellant Eugene C. Wolpert was convicted by President Judge William G. Johnstone, Jr., of the Court of Common Pleas of Lancaster County, sitting without a jury, of operating a motor vehicle while under the influence of intoxicating liquor. He appeals from the denial of his motion to suppress evidence of a blood test.

Appellant was operating his automobile, in which there were two passengers, on the evening of April 22,

[ 224 Pa. Super. Page 3631971]

. His vehicle crashed into a light standard in the Center Square of Marietta Borough, Lancaster County. The prosecuting police officer arrived minutes after the accident and detected a strong odor of alcohol. He found all three occupants of the car injured and had them taken to the hospital. Appellant was bleeding profusely from a gash on his chin and had loosened all of the teeth in his lower jaw. At the hospital he received treatment, including anesthesia and seventeen sutures in his chin. When the policeman sought to have a breathalizer test given to appellant, he was advised by the attending physician that appellant could not supply sufficient breath for the test, both because his jaw had been anesthetized and because there was a possibility of reopening the chin laceration. The officer then directed that a blood test be administered, despite appellant's objections.*fn1 Blood was withdrawn and the test made by a qualified individual in a medically-acceptable manner, but without a warrant. The test results indicated a blood alcohol content of .21 percent, raising the statutory presumption of intoxication. Act of April 29, 1959, P. L. 58, § 624.1, as amended, 75 P.S. § 624.1(c)(3).*fn2 Both appellant and the Commonwealth agree with the lower court's finding that "[t]he record is clear that the defendant [appellant] was not under arrest at the time blood was extracted from him . . . ." Rather, the prosecuting officer charged him with the offense 16 days after the blood was taken, by means of

[ 224 Pa. Super. Page 364]

    a criminal complaint. A summons was then mailed to appellant.

Initially, we are faced with precedents which, either precede or do not consider the 1968 amendment to the Act of April 29, 1959, id, commonly called the "implied consent" statute. As summarized in Commonwealth v. Murray, 441 Pa. 22, 25, 271 A.2d 500 (1970), these cases hold that: "The person of an individual may be lawfully searched, even without a search warrant, if the search is conducted as an incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034 (1969), and Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966). And, under certain circumstances, this includes intrusion into a person's body for blood to be analyzed for alcoholic content. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966). Cf. Commonwealth v. Gordon, 431 Pa. 512, 246 A.2d 325 (1968). However, for such a search to be valid, it must be substantially contemporaneous with the arrest and confined to the immediate vicinity thereof. Stoner v. California, 376 U.S. 483, 84 S. Ct. 889 (1964); Commonwealth v. Harris, 429 Pa. 215, 239 A.2d 290 (1968)." Schmerber, supra, the landmark case in this area of the law, also rejected the contention that the admission of blood test results into evidence is a violation of the Fifth Amendment privilege against self-incrimination.

Commonwealth v. Murray, supra, applied these holdings to a factual situation similar to the instant case. The appellant there was involved in an accident when he drove his automobile across the highway into an oncoming vehicle, killing two of its occupants and seriously injuring himself. A test of his blood was made at the hospital at direction of the investigating policeman without ...


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