No. 780 April Term 1978, Appeal from the order entered May 12, 1978 of the Court of Common Pleas, Criminal Division, Crawford County, Pennsylvania at No. 585 of 1977.
Douglas Ferguson, District Attorney, and with him Robert S. Bailey, Assistant District Attorney, Meadville, for Commonwealth, appellant.
No appearance entered nor brief filed for appellee.
Van der Voort, Spaeth and Montgomery, JJ. Spaeth, J., files a dissenting opinion.
[ 266 Pa. Super. Page 603]
The Commonwealth appeals from the ruling of the Suppression Court that the results of a blood test performed on Mr. Hlavsa, the Appellee, be suppressed.
The issue presented on appeal is whether Mr. Hlavsa was under arrest at the time the blood test was performed, which would have made the blood test a lawful search incident to arrest under the doctrine of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 656 (1969).
The blood was taken from Mr. Hlavsa at the direction of a State Police Officer while Mr. Hlavsa was unconscious in the emergency room of a hospital. The officer stated at the suppression hearing that he ordered the blood sample to be taken for possible use in criminal proceedings to arise out of contemplated charges to be made against Mr. Hlavsa of Driving While Intoxicated. Although Mr. Hlavsa would have been unable to consent to the test, his consent would not have been necessary had he been placed under arrest. See Commonwealth v. Lee, 257 Pa. Super. 326, 390 A.2d 845
[ 266 Pa. Super. Page 604]
(1978) and Commonwealth v. Funk, 254 Pa. Super. 233, 385 A.2d 995 (1978). This was never done, as the officer did not inform the hospital staff that Mr. Hlavsa was under arrest and was not to leave the hospital upon regaining consciousness. Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970). The arrest was not made until eighteen days after the blood sample was taken.
As no arrest was made before the blood sample was taken, the taking of the sample was not a search incident to arrest and was properly suppressed by the court below.
The order of the lower court is ...