Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Feb. T., 1971, No. 284, in case of Commonwealth of Pennsylvania v. James Lee Williams.
Stephen R. Signore, Jr., Public Defender, for appellant.
Stewart J. Greenleaf, with him J. David Bean, Assistant District Attorneys, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Wright, P. J., and Spaulding, J., did not participate in the decision of this case.
[ 229 Pa. Super. Page 392]
Appellant was convicted by a jury of operating a motor vehicle while under the influence of alcohol. The Vehicle Code, Act of April 29, 1959, P. L. 58, § 1037, 75 P.S. § 1037. During the trial, appellant's counsel asked the court to suppress the results of a blood alcohol test. The court refused to do so. We reverse.
Appellant was involved in an automobile accident on the afternoon of December 26, 1970. Shortly afterwards, Officer Robert A. Christopher of the Plymouth Township police force arrived on the scene in response to a radio call; the officer did not see the accident.*fn1 Finding appellant slumped behind the wheel of his car, the officer forced open a door. He was immediately struck by the smell of alcohol, and saw blood running down appellant's chin. He helped appellant into an ambulance, which took appellant to the Montgomery Hospital. After the ambulance had driven away, the
[ 229 Pa. Super. Page 393]
officer found a nearly empty pint bottle of whiskey on the floor of appellant's car in front of the driver's seat.
When the officer had concluded his investigation at the scene, he proceeded to the hospital and went into the cubicle where appellant was being treated. Apparently appellant had received stitches in his lip before the officer arrived; a doctor also attended to appellant's lip while the officer was present. The odor of alcohol was still very strong on appellant's breath, and he appeared to be in a "stupor." His speech was slurred and incoherent. In response to questioning about the accident, appellant "started to tell [Officer Christopher] about his boxing career, that he fought and beat Marciano, and also stated that he was going to show the officer how good he could box when he gets off the table."*fn2 It is not clear what the officer's response to appellant's behavior was. During direct examination the officer stated that he placed appellant under arrest for drunk driving. On cross-examination, however, he denied arresting appellant, or charging him with anything while he was in the hospital, maintaining that appellant was not arrested until January 15, 1971, after he had failed to appear at a hearing although served with a summons to appear.*fn3 In any event, the officer evidently did give appellant the Miranda warnings, and then stepped outside the cubicle and asked a doctor to take a sample of appellant's blood. The officer did not remember the name of this doctor but assumed that he was the same one who had been treating appellant. The officer told appellant that a sample of his blood was going to be taken because he believed appellant
[ 229 Pa. Super. Page 394]
to be under the influence of alcohol. The doctor took the sample and turned it over to the officer who in turn took it to a laboratory for analysis. Appellant was permitted to leave the hospital with a friend.
Following the completion of Officer Christopher's testimony, appellant's counsel made an oral motion to suppress the results of the blood test. Counsel argued that inasmuch as appellant was not arrested until some days after the blood was taken, the taking was not incident to a lawful arrest; there was, therefore, no constitutional basis for the seizure of appellant's blood and the results of the blood test must be suppressed. The Assistant District Attorney argued that appellant was arrested just before his blood was taken and that the seizure was lawful because incident to the arrest. He further argued that since no pretrial motion to suppress had been made, appellant could not raise the issue of the legality of the seizure of blood. The Court stated that "[appellant's] position would probably be well taken were there application to suppress here under the rules of Criminal Procedure but no applications have been filed of any sort." Appellant's counsel responded by saying: "The basis for our making these applications at this time is that there has been no ...