High Court: Unconscious DUI Suspect Can't Give Consent
ALM Media
Updated
The Pennsylvania Supreme Court ruled 6-1 that a warrantless blood draw from an unconscious DUI suspect is improper but the justices had more difficulty reaching a consensus on exactly why that is.
Four justices in Commonwealth v. Myers Justice David N. Wecht, who penned the lead opinion, and Justices Kevin M. Dougherty, Christine L. Donohue and Debra Todd agreed that the implied consent statute, 75 Pa.C.S. Section 1547, does not permit a warrantless blood draw from an unconscious DUI suspect because such a suspect cannot exercise his or her right to refuse the test, which is an essential element of the statute.
"Accordingly, we hold that [defendant Darrell] Myers had an absolute right to refuse chemical testing pursuant to the implied consent statute, that his unconscious state prevented him from making a knowing and conscious choice as to whether to exercise that right, and that the implied consent statute does not authorize a blood test conducted under such circumstances," Wecht said.
Three others Chief Justice Thomas G. Saylor and Justices Max Baer and Sallie Updyke Mundy disagreed, arguing that implied consent is given by anyone who voluntarily operates a vehicle in Pennsylvania, regardless of whether they have an opportunity to revoke that consent.
Saylor and Baer did, however, concur in the result, but the court fractured in its view of the constitutional implications of the case.
Three justices Wecht, Dougherty and Donohue said a warrantless blood draw performed on an unconscious DUI suspect is unconstitutional because the implied consent statute is not an independent exception to the Fourth Amendment's warrant requirement.
But Saylor and Baer, joined in this aspect by Donohue, went further, arguing that warrantless blood draws in Pennsylvania are unconstitutional under the U.S. Supreme Court's 2016 ruling in Birchfield v. North Dakota, which banned state laws that impose criminal penalties on DUI suspects for refusing the tests.
Wecht said only that Birchfield supported the conclusion that the existence of an implied consent statute does not obviate the need for a suspect to give actual, voluntary consent to a blood draw.
Only Mundy dissented entirely from the decision to uphold a Superior Court ruling suppressing the results of the blood draw performed on Myers after he had been sedated at a hospital. Mundy said she did not believe the test was prohibited either statutorily or constitutionally.
In June 2015, a three-judge panel of the Superior Court ruled that informed consent does not apply to defendants arrested on suspicion of DUI who are unconscious at the time the police officer attempts to warn the defendant about his or her right to refuse chemical testing.
According to Superior Court Judge Paula Francisco Ott's opinion, during an afternoon in December 2012, police officer James Bragg saw Myers in a maroon SUV stopped in a running lane with its engine running. Myers was pumping the brakes to make it look like his hazards were on, Ott said.
After Bragg pulled up behind the vehicle with his overhead lights and sirens on, Myers staggered toward Bragg and tried to say something, but his speech was too slurred for Bragg to understand, Ott said. Bragg convinced Myers to sit on the steps of a nearby building, and then Bragg saw a bottle of brandy on the front seat of the vehicle, according to Ott.
Bragg arrested Myers and then took him to a hospital because he believed Myers needed medical attention, Ott said.
At about 4:45 p.m. that day, another officer, Matthew Domenic, arrived at the hospital to administer a blood test, but Myers had been given four milligrams of Haldol a few minutes earlier and was unconscious. According to Ott, the officer called Myers' name several times, but got no reaction. The officer then read the standard informed consent warnings to Myers, and requested that a nurse perform a blood draw on Myers, Ott said.
Myers made a suppression motion, and argued that Bragg lacked probable cause, and there were no "exigent circumstances that would support a warrantless draw."
Citing the 2013 U.S. Supreme Court case Missouri v. McNeely in which the high court ruled that the natural dissipation of alcohol in the bloodstream does not create per se exigency sufficient to overcome the warrant requirement the municipal court judge granted the suppression motion regarding the blood draw and said the officer should have obtained a warrant.
Ott agreed with the judge that McNeely applied to the case "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."
Wecht, in his opinion, said McNeely stood for the principle that exigency must be determined on a case-by-case basis upon the totality of the circumstances.
Within that framework, Wecht said the blood draw in the Myers case was improper.
"Because Officer Domenic failed to satisfy the requirements of the implied consent statute, so as to establish Myers' voluntary consent, the commonwealth cannot demonstrate that the blood draw was justified by the consent exception to the warrant requirement," Wecht said. "Furthermore, the commonwealth did not seek to demonstrate that exigent circumstances dispensed with the need to obtain a warrant, or that the blood draw was justified by any other exception to the warrant requirement."
Hugh Burns Jr. of the Philadelphia District Attorney's Office could not be reached for comment.
Bradley S. Bridge of the Defender Association of Philadelphia said the ruling "makes clear what should have been clear from the United States Supreme Court's decisions in McNeely and Birchfield: In order to seize someone's blood, you need either or a warrant or a warrant exception. These cases have made clear that exigency is not a sufficient warrant exception. It is now clear that the legal construct of implied consent is also not a warrant exception. The police should simply get a warrant."
(Copies of the 33-page opinion in Commonwealth v. Myers, PICS No. 17-1178, are available at http://at.law.com/PICS.)
