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decided: June 21, 1974.


Appeal from order of Court of Common Pleas of Bucks County, No. 2400 of 1972, in case of Commonwealth of Pennsylvania v. John W. Quarles.


Stephen B. Harris, First Assistant District Attorney, with him Kenneth G. Biehn, District Attorney, for Commonwealth, appellant.

Peter N. Harrison, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Watkins, P. J., and Hoffman and Cercone, JJ., concur in the result. Wright, P. J., and Spaulding, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 229 Pa. Super. Page 366]

This is an appeal by the Commonwealth from an order suppressing the results of a breathalyzer test.

The facts may be summarized as follows: On July 24, 1972, at about 9:30 a.m., a Doylestown Borough police officer was dispatched by police radio to the scene of a two car accident. When he arrived he asked the persons standing around the cars who had been driving. Appellee identified himself as one of the drivers. Appellee's breath smelled of alcohol; his speech was slightly slurred; he was unsteady on his feet; and he had difficulty in producing his driver's license and owner's card. It also appeared to the officer that appellee's car had gone some 134 feet after the impact before coming to rest against a telephone pole. From these observations the officer concluded that appellee had been driving under the influence of alcohol, in violation of The Vehicle Code, Act of April 29, 1959, P. L. 58, § 1037, 75 P.S. § 1037. Accordingly, the officer arrested appellee and gave him the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). When appellee agreed to submit to a chemical test of his breath, he was taken to a state police barracks, twenty-two miles from the scene of the accident, where a breathalyzer test was administered. On July 31, a summons was issued, but at the preliminary hearing held on August 30 appellee was

[ 229 Pa. Super. Page 367]

    discharged. The next day an arrest warrant was issued. On October 3 appellee surrendered to the issuing authority and waived a preliminary hearing. On January 4, 1973, he was indicted for operating a motor vehicle while under the influence of intoxicating liquor. On March 12 his motion to suppress the results of the breathalyzer test was heard and granted, the hearing judge ruling from the bench as follows:

"1. The defendant was arrested by a police officer for a misdemeanor without a warrant, this misdemeanor not being committed in the presence of the arresting officer.

"2. An arrest for a misdemeanor not committed in the presence of an officer is an unlawful arrest.

"3. The Breathalyzer test was requested and submitted to incidental to said unlawful arrest.

"Therefore, we suppress the results of the Breathalyzer test and all other evidence secured as a result of the illegal arrest.

The Present Case Law

There can be no doubt that the hearing judge's ruling was correct on the basis of the present case law.

Schmerber v. California, 384 U.S. 757 (1966), is the seminal case. Schmerber was convicted of driving under the influence of intoxicating liquor. He had been arrested without a warrant at a hospital while receiving treatment for injuries suffered in an automobile accident. Under California law the warrantless arrest was legal. At the direction of a police officer, a blood sample was taken and tested for alcoholic content. Schmerber was conscious at the time. On appeal to the Supreme Court he contended that the taking of his blood constituted an illegal search and seizure because no warrant had been obtained beforehand. The Court disagreed. It first noted that Schmerber was under legal

[ 229 Pa. Super. Page 368]

    arrest at the time his blood was taken. Thus the initial seizure of Schmerber was justified as a lawful arrest. The Court went on to conclude that the facts that established probable cause for the arrest also suggested with some certainty that the desired proof of intoxication would be obtained. The Court explained the need for such certainty as follows: "The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search." Id. at 770. As for the failure of the officer to obtain a warrant, the Court found that since the percentage of alcohol in the blood quickly diminishes, he was confronted by an emergency in which there was no time to obtain one. The Court was satisfied that "the test chosen to measure [Schmerber's] blood-alcohol level was a reasonable one" and that "the test was performed in a reasonable manner."*fn1 Id. at 771. The Court therefore concluded that Schmerber's blood was lawfully secured in light of the exigent circumstances in a search incident to a lawful arrest, but it cautioned: "It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's

[ 229 Pa. Super. Page 369]

    person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions." Id. at 772.

Relying on Schmerber, the Pennsylvania Supreme Court in Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970), held that the results of a blood test taken under similar circumstances should have been suppressed. The test had been administered without the defendant's consent while he was at a hospital undergoing treatment for injuries received in an automobile accident. The court recognized that the taking of a blood sample was a search and seizure that under certain circumstances may properly be conducted as incident to a lawful arrest. Since the defendant was not under arrest when the blood sample was taken, and was not placed under arrest until thirteen days later, the court concluded that the administration of the blood test had been improper.

Commonwealth v. Reeves, 223 Pa. Superior Ct. 51, 297 A.2d 142 (1972), presented a similar set of facts. The defendant there was involved in a two car accident in which another person was killed. After the defendant had been taken to the hospital, a state trooper arrived on the scene. As a result of his investigation, he went to the hospital, where, without a warrant, he arrested the defendant. Later, the defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor and involuntary manslaughter -- both misdemeanors. The lower court suppressed the results of a blood test, and on the Commonwealth's appeal this court affirmed. "A police officer may only make a warrantless arrest for a misdemeanor 'where he has probable cause to believe that a misdemeanor is being committed in his presence.' Commonwealth v. Vassiljev,

[ 229 Pa. Super. Page 370218]

Pa. Superior Ct. 215, 219-220, 275 A.2d 852 (1971) (emphasis added)." Id. at 52-53, 271 A.2d at 143.*fn2 Since the defendant did not commit a misdemeanor in the officer's presence, he was illegally arrested and the results of the blood test were properly suppressed as administered incident to an illegal arrest. See also Commonwealth v. Jacoby, 226 Pa. Superior Ct. 19, 311 A.2d 666 (1973); Commonwealth v. Brown, 225 Pa. Superior Ct. 289, 302 A.2d 475 (1973).

Appellee's case falls within the holding of Reeves.

The Implied Consent Law

In its brief, "[t]he Commonwealth concedes . . . that the arrest of appellee was illegal, as the offense, a misdemeanor, was not committed in the officer's presence and therefore the officer was required to procure a warrant prior to the arrest and thus a warrantless search

[ 229 Pa. Super. Page 371]

    which relied on the arrest for its validity is defective." The Commonwealth goes on to argue "that the breath test was [nonetheless] justified as a consensual search and [its results were] therefore admissible in evidence against the appellee whether or not the arrest was valid."

In advancing this argument the Commonwealth relies on the "implied consent law," The Vehicle Code, supra § 624.1, added Act of July 28, 1961, P. L. 918, § 1, as amended, July 31, 1968, P.L. 758, No. 237, § 1, Act of December 22, 1969, P. L. 392, § 1, 75 P.S. 624.1, which reads in pertinent parts as follows:

"(a) Any person who operates a motor vehicle . . . in this Commonwealth, shall be deemed to have given his consent to a chemical test of his breath, for the purpose of determining the alcoholic content of his blood: Provided, That the test is administered by qualified personnel and with equipment approved by the secretary at the direction of a police officer having reasonable grounds to believe the person to have been driving while under the influence of intoxicating liquor. Qualified personnel means a physician or a police officer who has received training in the use of such equipment in a training program approved by the secretary. If any person is placed under arrest and charged with the operation of a motor vehicle . . . while under the influence of intoxicating liquor and is thereafter requested to submit to a chemical test and refuses to do so, the test shall not be given but the secretary may suspend his license or permit to operate a motor vehicle . . . with or without a hearing . . . .

"(b) In any summary proceeding or criminal proceeding in which the defendant is charged with driving a motor vehicle . . . while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood, as shown by a chemical analysis of his breath, his blood, or his urine, which analysis was conducted

[ 229 Pa. Super. Page 372]

    with equipment approved by the secretary and operated by qualified personnel, shall be admissible in evidence." According to the Commonwealth, "[t]he underlying rationale of this implied consent Statute is that a person has only the privilege which is granted to it [ sic ; him] by the State to operate a motor vehicle upon the public highways. He does not have an absolute right. The Pennsylvania courts have consistently held that the motor vehicle operator's license is a mere privilege, Commonwealth v. Funk, 323 Pa. 390 (1936), which allows its holder a limited right to use the public highways. The Commonwealth, acting through the General Assembly, may direct the conditions under which the privilege may be exercised. Commonwealth v. Halteman, 192 Pa. Superior Ct. 379 (1960).

"The Legislature has determined that because of the danger presented by an operator who is under the influence of alcohol, each driver impliedly consents to a 'chemical test of his breath' when he applies for operating privileges . . . . Therefore, operator having been deemed to have consented to the test of his breath, the results of that ...

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