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Commonwealth v. March

Superior Court of Pennsylvania

January 26, 2017


         Appeal from the Order Entered March 3, 2016 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005650-2015.

          BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J. [*]


          GANTMAN, P.J.

         Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Berks County Court of Common Pleas, which granted the suppression motion of Appellee, Kim David March, and suppressed the results of his blood alcohol test ("BAC").[1] For the following reasons, we reverse and remand for further proceedings.

         The relevant facts and procedural history of this case are as follows. On July 14, 2015, Sergeant Kimberly Brown of the Cumru Township Police Department responded at 6:31 p.m. to a single vehicle accident at 601 Philadelphia Avenue, near Cumru Elementary School. When Sergeant Brown arrived at the scene around 6:36 p.m., EMS was already there, treating Appellee, who was the unresponsive, male driver. EMS then took Appellee to Reading Hospital for emergency medical care and treatment. Sergeant Brown learned from witnesses to the accident that the vehicle had been traveling eastbound on Philadelphia Avenue when it drove across the westbound lane, went off the road, and struck a tree and utility pole. Witnesses stated the vehicle "did not appear to have a reason to drive off of the roadway." Witnesses also described the driver as "out of it" and "pale." Police were able to identify Appellee through vehicle registration.

         In plain view inside the vehicle, Sergeant Brown noticed five blue wax paper bags and the bottom of a cut-off prescription bottle on the floor of the vehicle near the driver's seat. The prescription bottle contained residue consistent with liquid added to heroin and used in the injection of hypodermic needles. Another officer saw a hypodermic needle on the floor of the front passenger side of the vehicle.

         Sergeant Brown went directly to Reading Hospital, where she requested a sample of Appellee's blood. Although police now had probable cause, Appellee was not yet under arrest. Appellee was unconscious, and Sergeant Brown could not read the Implied Consent DL26 form to Appellee. Appellee's blood was drawn at 7:59 p.m.; the results indicated the presence of several Schedule I controlled substances in Appellee's blood.

         On August 6, 2015, the Commonwealth charged Appellee with DUI (controlled substance), possession of drug paraphernalia, possession of a controlled substance, and a summary traffic offense, arising from the accident. The Commonwealth later added another related DUI charge. On January 14, 2016, Appellee filed an omnibus pretrial motion containing a motion to suppress the blood evidence as based on an alleged illegal blood draw. The court held a suppression hearing on February 12, 2016. The parties stipulated to the facts in the affidavit of probable cause and that a search warrant was not obtained prior to the draw of Appellee's blood.

         On March 3, 2016, the court issued its Findings of Fact and Conclusions of Law and suppressed the blood test results. The

         Commonwealth timely filed a notice of appeal on March 31, 2016. On April 1, 2016, the court ordered the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which the Commonwealth timely filed on April 18, 2016.

         The Commonwealth presents one issue for our review:


(Commonwealth's Brief at 4).

         The relevant standard and scope of review is:

When the Commonwealth appeals an order suppressing evidence, we may consider on review only the evidence from the defendant's witnesses along with the Commonwealth's evidence that remains uncontroverted. Our standard of review is restricted to establishing whether the record supports the suppression court's factual findings; however, we maintain de novo review over the suppression court's legal conclusions.

Commonwealth v. Guzman, 44 A.3d 688, 691-92 (Pa.Super. 2012) (citing Commonwealth v. Brown, 606 Pa. 198, 203, 996 A.2d 473, 476 (2010)).

         In its argument, the Commonwealth asserts that the Pennsylvania Implied Consent Statute, at 75 Pa.C.S.A § 1547, is an independent exception to the warrant requirement. The Commonwealth observes that Appellee was unconscious and unable to refuse the test, and Pennsylvania law has declined to provide unconscious persons with the right to refuse chemical testing. Additionally, Appellee was involved in a motor vehicle accident that required medical treatment, there was evidence of the use of controlled substances present at the scene of the accident, and probable cause existed to request a legal blood draw. The Commonwealth emphasizes that Pennsylvania has declined to extend the right to refuse blood testing to unconscious persons, and there was probable cause to believe Appellee had violated 75 Pa.C.S.A. § 3802, so the blood draw was valid. The Commonwealth concludes the trial court erred in suppressing the blood test results under these circumstances, and asks this Court to reverse and remand the case for trial.

         In response, Appellee primarily relies on Commonwealth v. Myers, 118 A.3d 1122 (Pa.Super. 2015), appeal granted, __ Pa.__, 131 A.3d 480 (2016), for the proposition that a warrantless blood test of an unconscious person, under Pennsylvania's Implied Consent Statute, violates the United States Supreme Court's judgment in Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), where the Court held that the dissipation of alcohol in the blood does not constitute a per se urgency to justify a warrantless blood test under the "exigent circumstances" exception to the warrant requirement. Appellee concludes the warrantless test of his blood was unconstitutional under McNeely, and the results from his test should remain suppressed, because the facts of his case are virtually indistinguishable from Myers. For the following reasons, we disagree with Appellee's position and agree with the Commonwealth's position.

         Analysis of this case involves the intersection of two relevant statutes; the first statute is Pennsylvania's implied consent statute, which provides in pertinent part:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) General rule.-Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle:
(1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock); or
* * *
(b) Suspension for refusal.-
(1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
(ii) For a period of 18 months if any of the ...

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