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COMMONWEALTH PENNSYLVANIA v. KENNETH PELKEY (09/11/85)

submitted: September 11, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
KENNETH PELKEY, APPELLEE



Appeal from the Order entered August 13, 1984, in the Court of Common Pleas of Allegheny County, Criminal No. CC8303704.

COUNSEL

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.

James A. Wymard, Pittsburgh, for appellee.

Olszewski, Popovich and Montgomery, JJ.

Author: Olszewski

[ 349 Pa. Super. Page 376]

This matter comes before us on appeal from an order suppressing the results of a blood alcohol test performed on appellee. For the reasons outlined below, we reverse the suppression court's decision.

Appellee, Kenneth Pelkey, was involved in a serious motor vehicle accident on the evening of March 13, 1983, which resulted in the death of two individuals. A police officer at the scene, who helped the medics free appellee from the wreckage, noted that appellee was semiconscious and had an odor of alcohol on his breath. This same officer also approached the other accident victims and noted that although one was in a great deal of pain, the third victim exhibited no signs of life. After 45 minutes had passed, the medics finally removed appellee from the car and prepared to transport him to the hospital for treatment. At this time, the officer instructed the medics to have a blood alcohol test performed on the appellee. When the police later arrived at the hospital and learned that appellee's blood alcohol content (BAC) was .223, he was then placed under arrest. Appellee now stands charged with two counts of homicide by vehicle (75 Pa.C.S.A. Sec. 3732); one count of driving under the influence (75 Pa.C.S.A. Sec. 3731(a)(1)); violation of traffic controls (75 Pa.C.S.A. Sec. 3112); and two counts of homicide by vehicle while driving under the influence (75 Pa.C.S.A. Sec. 3735).

A suppression hearing was later held, at which time appellee alleged that the taking of his blood and the subsequent

[ 349 Pa. Super. Page 377]

    testing of it for alcoholic content constituted a violation of his Fourth and Fourteenth Amendment constitutional rights. The lower court affirmed the suppression motion and held that the blood sample had been taken without appellee's consent and prior to his arrest, in violation of his constitutional right against unlawful searches and seizures. The Commonwealth now challenges the trial court's decision. Appellant contends that the lower court erred in suppressing the results of the blood test where reasonable grounds existed for one to believe that the appellee (1) was driving under the influence of alcohol and/or a controlled substance, or (2) was involved in an accident in which someone was injured or killed. Appellant further argues that emergency room personnel were permitted to extract appellee's blood without his consent under 75 Pa.C.S.A. Sec. 3755. We will address these arguments seriatim.

In the first instance, it is noteworthy that the Commonwealth's appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution. Commonwealth v. Dugger, 506 Pa. 537, 546-547, 486 A.2d 382, 386 (1985). Since the certification requirement has been satisfied, we find that the Commonwealth has an absolute right of appeal to this Court to test the validity of the pre-trial suppression order.

It is well settled that the taking of a blood sample is a search and seizure subject to the protections of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970). Although we agree with the trial court that a search incident to a lawful arrest is one method of validating this type of search, we shall not limit ourselves in holding that this procedure represents the only alternative. Because we find ...


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