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Commonwealth v. Myers

Supreme Court of Pennsylvania

July 19, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
DARRELL MYERS, Appellee

          ARGUED: September 14, 2016

         Appeal from the Judgment of Superior Court entered on 6/15/2015 at No. 2774 EDA 2013 (reargument denied 8/7/2015) affirming the Order entered on 8/27/2013 in the Court of Common Pleas Philadelphia County, Criminal Division at no. MC-51-CR-0052681-2012.

          Justice Wecht delivers the Opinion of the Court with respect to Parts I, II(A), II(B), and II(D), and announces the Judgment of the Court. The opinion is joined in full by Justices Donohue and Dougherty. Justice Todd joins Parts I, II(A), II(B), and II(D) of the opinion, as well as its mandate. Chief Justice Saylor files a concurring opinion, joined in full by Justice Baer and joined in part by Justice Donohue. Justice Mundy files a dissenting opinion.

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          WECHT, JUSTICE [1]

         When a motorist drives on a road in Pennsylvania, the motorist is "deemed to have given consent" to chemical testing to determine whether he or she is driving under the influence of alcohol or a controlled substance ("DUI"), provided that a police officer first develops "reasonable grounds" to suspect such impairment. 75 Pa.C.S. § 1547(a). Nonetheless, this "implied consent" statute also grants DUI arrestees the right to refuse chemical testing. See id. § 1547(b)(1) ("If any person placed under arrest for [DUI] is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted"); Commonwealth v. Eisenhart, 611 A.2d 681, 683 (Pa. 1992) ("The statute grants an explicit right to a driver who is under arrest for [DUI] to refuse to consent to chemical testing."). Refusal to submit to a chemical test comes with its own set of consequences, and both the statute and this Court's precedents require a police officer who is requesting a chemical test to inform an arrestee of those consequences. See 75 Pa.C.S. § 1547(b)(2) (prescribing the "duty of the police officer" to inform a DUI arrestee of the consequences of refusal); Pa. Dep't of Transp., Bureau of Traffic Safety v. O'Connell, 555 A.2d 873, 877 (Pa. 1989) ("The law has always required that the police must tell the arrestee of the consequences of a refusal to take [a chemical] test so that he can make a knowing and conscious choice.").[2]

         In this case, we granted allowance of appeal to consider the lawfulness of a warrantless blood draw conducted upon a motorist who, having been arrested for DUI, had then been rendered unconscious by medical personnel before a police officer provided O'Connell warnings[3] and before the officer requested the motorist's submission to a chemical test. The Philadelphia Municipal Court, the Court of Common Pleas, and the Superior Court all held that a blood draw conducted under these circumstances is impermissible, and that the results of the derivative blood test are accordingly inadmissible at trial. Because the seizure of Darrell Myers' blood violated Pennsylvania's implied consent statute, 75 Pa.C.S. § 1547, and because no other circumstances justified the failure to obtain a search warrant, we affirm.

         I. Background

         On December 29, 2012, at approximately 3:30 p.m., Philadelphia Police Officer James Bragg was on routine patrol when he received a radio call indicating that there was a person screaming in the vicinity of 100 West Penn Street. The radio call warned Officer Bragg to be on the lookout for a maroon SUV. When Officer Bragg arrived on West Penn Street, he observed a vehicle matching that description with its engine running and its brake lights repeatedly flickering on and off. A man later identified as Myers was sitting in the driver's seat. Officer Bragg activated his siren and emergency lights and pulled up behind the maroon SUV. Myers exited the vehicle and began to stagger toward the officer, even though he had not been ordered to step out of the vehicle. Myers tried to speak, but his speech was so slurred that Officer Bragg could not understand what he was saying. Officer Bragg detected the smell of alcohol emanating from Myers, and observed a bottle of brandy on the front seat of the SUV. The bottle was in plain view, as Myers had left the driver's door open when he exited the vehicle. Based upon his observations and experience, Officer Bragg believed that Myers was intoxicated to the point that he required medical attention. Officer Bragg placed Myers under arrest for DUI and called for a wagon, which transported Myers to Einstein Medical Center.

         Around 4:45 p.m. that same day, Philadelphia Police Officer Matthew Domenic arrived at Einstein Medical Center, having been informed that an individual at that hospital had been arrested for DUI. A few minutes before Officer Domenic arrived, however, the hospital staff administered four milligrams of Haldol[4] to Myers, rendering him unconscious. Officer Domenic attempted to communicate with Myers by speaking his name and tapping him on the shoulder, but Myers was unresponsive. Nevertheless, Officer Domenic read O'Connell warnings to Myers. Myers, still unconscious, was unable to respond in any manner. Officer Domenic then instructed a nurse to draw Myers' blood. It is undisputed that neither Officer Bragg nor Officer Domenic attempted to secure a search warrant for this blood draw. It also is undisputed that, due to his unconscious state, Myers could neither hear Officer Domenic nor sign the implied consent warnings.

         The Commonwealth charged Myers with DUI.[5] Myers filed a pre-trial motion to suppress the evidence derived from the blood draw, which he alleged had been conducted in violation of his rights under the Fourth Amendment to the United States Constitution[6] and Article I, Section 8 of the Pennsylvania Constitution.[7] Myers argued that Officer Bragg lacked probable cause to arrest him for DUI, and that the blood draw was unlawful under the decision of the Supreme Court of the United States in Missouri v. McNeely, U.S., 133 S.Ct. 1552 (2013), because the police did not obtain a search warrant and because no exigent circumstances justified the warrantless search of his blood.

         In McNeely, a plurality of the United States Supreme Court explained that, because a blood draw unquestionably is a search within the meaning of the Fourth Amendment, a warrant generally is required, unless one of the exceptions to the warrant requirement applies. Id. at 1558. One such exception exists for searches based upon exigent circumstances, "when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Id. (quoting Kentucky v. King, 563 U.S. 452, 460 (2011)). Missouri sought a per se rule that the natural dissipation of alcohol from the bloodstream always is an exigent circumstance, such that there never is a need for a warrant for a blood draw in DUI cases. Id. at 1560. The Court rejected Missouri's argument, instead concluding that whether exigent circumstances exist in DUI cases must be determined in each individual case, based upon the totality of the circumstances. Id. at 1561-62.

         Following a suppression hearing on May 21, 2013, the Philadelphia Municipal Court granted Myers' motion and suppressed the results of the blood draw. The Municipal Court concluded that, although probable cause existed for the DUI arrest, the officers were required to obtain a warrant for the blood draw because Myers' unconscious state prevented him from consenting or refusing, and because no exigent circumstances were present. Considering the totality of the circumstances as required by McNeely, the Municipal Court concluded that it would not have been unreasonable for the police to obtain a warrant before having Myers' blood drawn.

          The Commonwealth appealed to the Court of Common Pleas, which affirmed the Municipal Court's suppression order. The trial court, also applying McNeely, concluded that the Commonwealth failed to show "that it would have been impracticable or infeasible for [either officer] to obtain a warrant in the circumstances." Trial Court Opinion, 1/17/2014, at 7. In addition, the trial court concluded that, because Myers was unconscious at the time of the blood draw, "he did not have the opportunity to decline or refuse to have his blood sample taken on the date in question." Id. at 8.

         The Superior Court affirmed. Commonwealth v. Myers, 118 A.3d 1122 (Pa. Super. 2015). Examining the implied consent statute, the Superior Court noted that Subsection 1547(b)(1) "provides a driver under arrest with [a] statutory right of refusal to blood testing." Id. at 1129 (quoting 75 Pa.C.S. § 1547(b)(1)). Because Myers was unconscious at the time that Officer Domenic requested the blood draw, the court observed that Myers "could not claim the statutory protection" of Subsection 1547(b)(1). Id. The Superior Court further relied upon McNeely, and held that, "because police did not act pursuant to the implied consent law until 4:45 p.m., after Myers had been rendered unconscious by an intervening cause that occurred subsequent to his DUI arrest and transport to the hospital, we conclude McNeely controls here." Id. at 1130. Like the trial court, the Superior Court determined that the Commonwealth failed to demonstrate the impracticability of obtaining a warrant prior to the blood draw. Therefore, the panel held that the trial court correctly affirmed the Municipal Court's order granting Myers' motion to suppress. The Commonwealth sought reargument en banc, which was denied. We granted the Commonwealth's petition for allowance of appeal.[8]

          II. Analysis

         Before this Court, the Commonwealth argues that the implied consent statute establishes a valid exception to the warrant requirement of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, and that the statutory right to refuse chemical testing does not apply to unconscious arrestees. The Commonwealth's central premise is that, under 75 Pa.C.S. § 1547(a), "any individual who exercises the privilege of driving in Pennsylvania has consented to a blood draw." Brief for Commonwealth at 17 (emphasis omitted). Although a conscious individual may refuse to submit to a chemical test, the Commonwealth asserts that "[t]here is no law in Pennsylvania that treats an unconscious defendant as having revoked his already-provided consent." Id. The Commonwealth faults the Superior Court for "distinguish[ing] between conscious and unconscious drivers without any analysis." Id. at 24 (emphasis omitted). In the Commonwealth's view, an arrestee's state of consciousness matters only to the extent that "[u]nconsciousness . . . prevents the suspect from refusing the blood draw, " but it "does not somehow negate his existing consent." Id. at 22.[9]

          Myers responds to the Commonwealth's arguments on both statutory and constitutional grounds. With regard to the authority granted to law enforcement personnel under the statute, Myers contends that Pennsylvania's implied consent scheme "does not actually permit the involuntary taking of a blood sample, " but, rather, "it penalizes a person for refusing to permit the taking of a sample." Brief for Myers at 12. Myers argues that, "because [he] was forcibly medicated and rendered unconscious, he was deprived of his statutory right to refuse the taking of his blood." Id. at 13 (footnote omitted). In addition to asserting that the blood draw was impermissible under the implied consent statute, Myers bases much of his argument upon the decisions of the Supreme Court of the United States in McNeely and Birchfield v. North Dakota, __U.S.__, 136 S.Ct. 2160 (2016), the latter of which was decided during the pendency of this appeal.

         In Birchfield, the Supreme Court addressed the constitutionality of warrantless searches of breath and blood under the Fourth Amendment, specifically with regard to the search-incident-to-arrest and consent exceptions to the warrant requirement. The Court concluded that "the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving[, ]" but "reach[ed] a different conclusion with respect to blood tests." Id. at 2184. Because obtaining a blood sample is significantly more intrusive than a breath test, the Court determined that a blood test may not be administered as a search incident to arrest. Id. at 2185. Following that conclusion, the Court considered whether warrantless blood tests may be justified under state implied consent laws. Noting that its "prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, " the Court concluded:

It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

Id. Accordingly, the Court determined that a warrantless blood draw cannot be justified by implied consent where the refusal to submit to the test subjects an individual to criminal penalties. Id. at 2186.

         With regard to the constitutional dimension of this case, Myers argues that the warrantless blood draw requested by Officer Domenic was unlawful under Birchfield, and that the implied consent statute did not cure the constitutional infirmity. See Brief for Myers at 7-9. Further, McNeely held that the dissipation of alcohol in the bloodstream does not establish a per se exigency. Therefore, Myers contends, if the Commonwealth sought to rely upon exigent circumstances, the totality of the circumstances must have demonstrated an actual exigency. Because the Commonwealth did not establish any exigency, Myers contends that no valid exception to the warrant requirement justified the blood draw, and the results of that blood draw correctly were suppressed. Id. at 15-16.[10]

         The Commonwealth filed its principal brief before Birchfield was decided. Accordingly, the Commonwealth responded to Myers' arguments regarding that decision in a reply brief. The Commonwealth contends that, as it related to implied consent laws, the primary concern in Birchfield was that consent to a search could not be coerced by the threat of criminal penalties. Here, the Commonwealth argues, "[a]ny potential coercive effect of the statute was irrelevant, because [Myers] was unconscious and so could not be coerced." Reply Brief for Commonwealth at 3. The Commonwealth further maintains that McNeely has no application to this case, because McNeely considered only the exigent circumstances exception to the warrant requirement, and the Commonwealth is relying upon the consent exception, not exigent circumstances. Id. at 7-8.

         The parties' arguments broadly relate to two distinct inquiries: whether the blood draw conducted in this case was authorized by the implied consent statute, and whether the blood draw otherwise was permissible under the Fourth Amendment and under Article I, Section 8 of the Pennsylvania Constitution. We first consider the language of the implied consent statute and our prior interpretations of the statute's requirements. In construing the statute, we remain mindful that the chemical tests contemplated by the implied consent statute are searches within the meaning of the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 767 (1966) (administration of a blood test "plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment."); Skinner v. Ry. Labor Exec.'s Ass'n, 489 U.S. 602, 616-17 (1989) (administration of a breath test "implicates similar concerns about bodily integrity" and "should also be deemed a search.") Accordingly, our analysis must comport with the constitutional concerns underlying the statute. Our consideration of the implied consent statute involves a question of statutory interpretation, over which our standard of review is de novo and our scope of review is plenary. See Commonwealth v. Kingston, 143 A.3d 917, 921 (Pa. 2016).

         A. Operation of the implied consent scheme

         The implied consent statute provides, in relevant part:

(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 or blood 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 . . . 3802 (relating to driving under influence of alcohol or controlled substance). . . .
(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 following apply:
(A)The person's operating privileges have previously been suspended under this subsection.
(B) The person has, prior to the refusal under this paragraph, been sentenced for:
(I) an offense under section 3802;
(II) an offense under former section 3731;
(III) an offense equivalent to an offense under subclause (I) or (II); or
(IV) a combination of the offenses set forth in this clause.
(2) It shall be the duty of the police officer to inform the person that:
(i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties).
(e) Refusal admissible in evidence.--In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3802 or any other violation of this title arising out of the same action, the fact that the defendant refused to submit to chemical testing as required by subsection (a) may be introduced in evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence but it may be considered along with other factors concerning the charge.

75 Pa.C.S. § 1547.

         As indicated in Subsection 1547(b)(2)(ii), this provision is related closely to the statute prescribing penalties for DUI convictions, 75 Pa.C.S. § 3804. Pennsylvania law classifies and penalizes DUI offenses pursuant to a three-tiered hierarchy, which is based upon the severity of the offense. In the lowest tier, called "general impairment, " an individual commits an offense when he drives a vehicle either "after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, " 75 Pa.C.S. § 3802(a)(1), or with a blood alcohol concentration ("BAC") of at least 0.08% but less than 0.10%. Id. § 3802(a)(2). The middle tier, "high rate of alcohol, " prohibits driving a vehicle when one's BAC is at least 0.10% but less than 0.16%. Id. § 3802(b). The highest tier, "highest rate of alcohol, " prohibits driving a vehicle when one's BAC is 0.16% or above. Id. § 3802(c).

         The penalties imposed for DUI convictions are prescribed by 75 Pa.C.S. § 3804. Each tier of DUI offense triggers its own range of penalties, which become more severe at each level. See id. § 3804(a)-(c). With regard to the consumption of alcohol, the middle and highest tiers are designated only by BAC, but, where an individual refuses to submit to a chemical test under 75 Pa.C.S. § 1547(b)(1), no evidence of the individual's BAC will exist. A prosecution for DUI, therefore, can proceed only under "general impairment, " requiring proof that the individual had driven "after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving." 75 Pa.C.S. § 3802(a)(1). Subsection 3804(c), however, provides that an individual who refused to submit to chemical testing and is convicted under "general impairment, " is not subject to the penalties ordinarily prescribed for that tier, but automatically becomes subject to the penalties corresponding to the highest tier.[11] In short, a motorist who refuses to submit to a chemical test, if later convicted of DUI, automatically is subject to the highest range of penalties applicable to DUI offenses.

         By operation of the implied consent statute, once a police officer establishes reasonable grounds to suspect that a motorist has committed a DUI offense, that motorist "shall be deemed to have given consent to one or more chemical tests of breath or blood for the purpose of determining the alcoholic content of blood or the presence of a controlled substance." 75 Pa.C.S. § 1547(a). Notwithstanding this provision, Subsection 1547(b)(1) confers upon all individuals under arrest for DUI an explicit statutory right to refuse chemical testing, the invocation of which triggers specified consequences. See 75 Pa.C.S. § 1547(b)(1) ("If any person placed under arrest for [DUI] is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted"); Eisenhart, 611 A.2d at 683 ("The statute grants an explicit right to a driver who is under arrest for [DUI] to refuse to consent to chemical testing.").

         Under this statutory scheme, a motorist placed under arrest for DUI has a critical decision to make. The arrestee may submit to a chemical test and provide the police with evidence that may be used in a subsequent criminal prosecution, or the arrestee may invoke the statutory right to refuse testing, which: (i) results in a mandatory driver's license suspension under 75 Pa.C.S. § 1547(b)(1); (ii) renders the fact of refusal admissible as evidence in a subsequent DUI prosecution pursuant to 75 Pa.C.S. § 1547(e); and (iii) authorizes heightened criminal penalties under 75 Pa.C.S. § 3804(c) if the arrestee later is convicted of DUI. In very certain terms, this Court has held that, in requesting a chemical test, the police officer must inform the arrestee of the consequences of refusal and notify the arrestee that there is no right to consult with an attorney before making a decision. See O'Connell, 555 A.2d at 877-78.[12] "An arrestee is entitled to this information so that his choice to take a [chemical] test can be knowing and conscious." Id. at 878. The choice belongs to the arrestee, not the police officer.

         B. The right of refusal applies to unconscious arrestees.

         The Commonwealth argues that the right of refusal under Subsection 1547(b)(1) does not apply to unconscious individuals, who are not entitled to revoke their "already-provided consent." Brief for Commonwealth at 17. The Commonwealth relies upon this Court's comment in Eisenhart that "[t]he issue of the unconscious driver or a driver whose blood is removed for medical purposes is not before us today, but is currently pending before this Court in another matter."[13] 611 A.2d at 684. The Eisenhart Court held that "there is an absolute right to refuse, and . . . blood test results acquired in contravention of that right must be suppressed." Id. at 682. However, the Court restricted this holding to the right of the "conscious driver" to refuse testing. Id. at 684.[14]Although this Court has not reached the question of unconsciousness in previous cases, the statute's unambiguous language indicates that the right of refusal applies without regard to the motorist's state of consciousness. Subsection 1547(b)(1) does not distinguish in any way between conscious and unconscious ...


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