No. 263 April Term, 1977, Appeal from the Order Entered October 27, 1976, by the Court of Common Pleas, Criminal Division, of Somerset County at No. 328 Criminal 1976.
David B. Hartman, Assistant District Attorney, and Thomas G. Saylor, Jr., First Assistant District Attorney, Somerset, for Commonwealth, appellant.
Dean Austin Bowman, Somerset, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 164]
Appellant, the Commonwealth, contends that the lower court should not have suppressed the results of a blood alcohol test. According to the Commonwealth, appellee, charged with involuntary manslaughter*fn1 and driving while under the influence of liquor,*fn2 knowingly and voluntarily consented to the performance of this test. The Commonwealth
[ 253 Pa. Super. Page 165]
also asserts that even if we determine that appellee did not knowingly and voluntarily consent to the blood alcohol test, we should either require appellee to agree to the admission of the blood test results or instruct the lower court to admit evidence of appellee's refusal to agree to the admission of the test results. We affirm the lower court's suppression order.*fn3
At approximately 10:10 p.m. on April 29, 1976, a vehicle operated by appellee collided with another vehicle driven by one Channing D. Pollock on Route 31 in Somerset Township, Somerset County. The crash killed Pollock and seriously injured appellee. An ambulance transported appellee to the Somerset Community Hospital. At approximately midnight, a doctor, acting at the direction of Pennsylvania State troopers, authorized a lab technician to remove a blood sample from appellee for the purpose of determining the level of alcohol in appellee's bloodstream. Analysis of the sample revealed a blood alcohol count of .15, a level which raised a legal presumption of intoxication.*fn4 On June 28,
[ 253 Pa. Super. Page 1661976]
, Somerset County police authorities filed a criminal complaint which charged appellee with involuntary manslaughter and with driving while under the influence of alcohol.
On October 18, 1976, appellee filed an application to suppress the blood test results which allegedly were obtained in violation of appellee's constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution and the applicable law of Pennsylvania. In particular, the application alleged that the police did not have probable cause to perform a blood test on appellee, that the search was not incident to a lawful arrest, and that the appellee did not knowingly and voluntarily consent to the blood test because appellee was convulsing, vomiting, and without knowledge of where he was when the tests were conducted. Also, appellee alleged that the two hour lapse between the accident and the blood test vitiated the reliability and probative value of the blood test. On October 25, 1976, the Commonwealth filed an answer to appellee's application. The answer generally denied that appellee's constitutional rights had been violated.
On October 26, 1976, the Somerset County Court of Common Pleas conducted a hearing on appellee's suppression application. At the hearing, the Commonwealth presented three witnesses, two state police troopers and a laboratory technician, and appellee presented two witnesses, himself and his wife. State trooper Daniel Laughlin testified on direct examination that he investigated the April 29, 1976 accident which precipitated the charges in the instant case. He observed the Somerset County ambulance crew remove appellee from his vehicle and transport him to the hospital. After investigating the accident scene, he and another state trooper, ...