DUI; Warrantless Blood Draw; Implied Consent
Commonwealth v. Jones-Williams, 237 A.3d 528 (Pa. Super. 2020), allocatur granted Apr. 28, 2021, appeal docket 27 MAP 2021
This case joins a long line of allocaturs granted by the Pennsylvania Supreme Court following the U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. __, 136 S.Ct. 2160 (2016). In Birchfield, the U.S. Supreme Court held that a state may not “impose criminal penalties on the refusal to submit to [a warrantless blood] test.” Here, the court will consider whether a warrantless request to test a blood sample violates a defendant’s constitutional rights, and whether, given that the hospital obtained a blood sample prior to the police officer’s arrival at hospital, no exigency permitted officer to request a test of defendant’s blood without obtaining a warrant.
Following an accident in which Jones-Williams’ vehicle collided with a train resulting in the death of his passenger, Jones-Wiliams was charged with homicide by vehicle while driving under the influence (DUI) and related offenses. Superior Court summarized the facts surrounding the Commonwealth’s use of Jones-Williams’ blood sample that was taken following the accident as follows:
When Sergeant Farren arrived at York Hospital, he discovered Appellant lying in a hospital bed, restrained, and fading in and out of consciousness. As such, Sergeant Farren could not interview Appellant or request that he consent to a blood draw. Later, however, Sergeant Farren learned that hospital personnel drew Appellant’s blood at 5:56 p.m., before his arrival. This prompted Sergeant Farren to request that the hospital’s laboratory transfer Appellant’s blood sample to National Medical Services (“NMS”) laboratory for testing to determine the presence of alcohol or controlled substances. Sergeant Farren filled out the requisite forms at 7:30 p.m. He did not obtain a warrant prior to submitting the request to test Appellant’s blood sample. The hospital laboratory transferred Appellant’s blood sample on July 8, 2014 (three days after the collision) and NMS laboratory issued its toxicology report analyzing Appellant’s blood sample on July 15, 2014. The results revealed that Appellant’s blood contained Delta-9 THC, the active ingredient in marijuana, at a concentration of 1.8 ng/ml and Delta-9 Carboxy THC, a marijuana metabolite, at 15 ng/ml.
Slip op. at 2-3 (footnotes omitted).
The trial court denied Jones-Williams’ suppression motion, and following conviction and sentencing Jones-Williams appealed. Jones-Williams argued that in light of Birchfield and the Pennsylvania Supreme Court’s decision in Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017), Section 3755(a), which provides that governmental officials may obtain an individual’s blood test results if, after a motor vehicle accident, the driver requires emergency medical treatment and there is probable cause to believe that a DUI violation occurred, and its counterpart, Section 1547(a), no longer independently support implied consent on the part of a driver suspected of or arrested for a DUI violation and that the Commonwealth failed to prove that exigent circumstances existed to permit the warrantless search.
Based on its application of Birchfield and Myers, Superior Court held that Section 3755(a) and its counterpart, Section 1547(a), “no longer independently support implied consent on the part of a driver suspected of or arrested for a DUI violation and, in turn, dispense with the need to obtain a warrant.” Slip op. at 25. In so holding, the court reasoned that:
“Simply put, statutorily implied consent cannot take the place of voluntary consent.” Myers, supra at 1178. Thus, in order for the Commonwealth to request a driver’s blood test results, it must obtain a warrant or it must proceed within a valid exception to the warrant requirement. If government officials rely upon a driver’s consent to request his blood test results, the Commonwealth must demonstrate that the driver’s consent is voluntary, which means the driver had a meaningful opportunity to “make a ‘knowing and conscious choice’ of whether to undergo chemical testing or exercise his right of refusal.” Id. at 1181 (citation omitted).
In this case, the Commonwealth cannot simply rely upon its compliance with Section 3755(a) to justify the warrantless request to test Appellant’s blood sample. As stated above, by the time Sergeant Farren arrived at York Hospital, Appellant was fading in and out of consciousness. N.T. Suppression Hearing, 12/21/15, at 59. Appellant, therefore, did not have the “opportunity to choose whether to exercise [the right of refusal] or to provide actual consent to the blood draw.” Myers, supra at 1181. “Because [Appellant] was deprived of this choice, the totality of the circumstances unquestionably demonstrate[ ] that he did not voluntarily consent to the blood draw.” Id. Thus, the Commonwealth’s warrantless request to test Appellant’s blood sample violated Appellant’s constitutional rights and the trial court erred in denying his motion to suppress.
Slip op. at 25-26.
As to whether exigent circumstances existed to support the warrantless blood draw, the court acknowledged that the US Supreme Court’s recent decision in Mitchell v. Wisconsin, ––– U.S. ––––, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (2019) recognized that in general, exigent circumstances may exist to permit the police to pursue a warrantless blood draw if the driver’s BAC is dissipating and the driver is unconscious. However, the court, explained:
In [Missouri v. McNeely, 569 U.S. 141 (2013)], however, the Supreme Court cautioned that the natural metabolization of BAC, alone, does not present “a per se exigency that justifies an exception to the [warrant requirement].” McNeely, supra at 145, 133 S.Ct. 1552. Instead, McNeely clarified that the “the metabolization of alcohol [or a controlled substance] in the bloodstream and the ensuing loss of evidence are among the factors” to consider when determining whether exigent circumstances justify a warrantless blood draw. Id. at 165, 133 S.Ct. 1552. McNeely also highlighted additional factors, such as the “need for the police to attend to a related car accident,” “the procedures in place for obtaining a warrant, the availability of a magistrate judge,” and “the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence.” Id. at 164, 133 S.Ct. 1552. Notably, this Court previously utilized the aforementioned factors to determine whether an exigency existed in a drunk-driving investigation. See Commonwealth v. Trahey, 183 A.3d 444, 450-452 (Pa. Super. 2018) (applying the factors listed in McNeely to determine whether, under the totality of the circumstances, an exigency permitted a warrantless blood draw).
Slip op. at 26-28. Thus, based upon the totality of circumstances in this case, Superior Court concluded that the Commonwealth failed to prove that an exigency permitted the police to request, without a warrant, the chemical testing of Jones-Williams’ blood sample, reasoning that:
At the suppression hearing, the Commonwealth established that the police were “dealing with a chaotic situation” and that they had probable cause to believe that Appellant was driving under the influence of marijuana. N.T. Suppression Hearing, 12/21/15, at 77. Specifically, Officer Briar explained that the scene involved a collision between a train and a vehicle where one person (Sisti) was declared dead, and two others (Appellant and S.J.) required emergency treatment. Id. at 7-39. In addition, Officer Kevin Romine testified that he interviewed the train’s conductor, Virgil Weaver, on the day of the accident and Weaver informed him that he “detected an odor of marijuana around the vehicle” after attempting to render aid. Id. at 46. In addition, Officer Romine testified that he interviewed Leslie Garner, the paramedic who assisted Appellant, and she confirmed that “she detected an odor of marijuana about [Appellant’s] person.” Id. at 47.
While these circumstances undoubtedly confirm the existence of a tragic and unfolding emergency, other factors compellingly undermine the conclusion that exigent circumstances permit us to jettison the warrant requirement. Sergeant Farren testified that when he arrived at York Hospital, he learned that hospital personnel already obtained a blood sample from Appellant. Id. at 59. The blood draw occurred at 5:56 p.m., approximately one hour and 20 minutes after the accident. As of 5:56 p.m., then, Appellant’s blood sample, including all of the intoxicants contained therein, was preserved. Thus, the extraction of Appellant’s blood shortly before 6:00 p.m. on the date of the accident literally stopped the clock on any concern that the further passage of time could result in dissipation of evidence since the withdrawal of Appellant’s blood by hospital personnel ceased all metabolic activity that might influence a toxicological assessment of the sample. As a result, any argument that an exigency existed at the time Sergeant Farren submitted his request to test Appellant’s blood sample was no longer viable. Sergeant Farren and Lieutenant Lutz’s testimony at the suppression hearing bolsters this conclusion as both officers admitted that the police could have obtained a warrant before asking that chemical tests be performed on Appellant’s blood. See N.T. Suppression Hearing, 12/21/15, at 65-66 and 83. Therefore, in view of the foregoing circumstances, we conclude that no exigency permitted the warrantless search in this case and, as such, the trial court erred in denying Appellant’s motion to suppress.
Slip op. at 28-30.
The Pennsylvania Supreme Court granted allocatur to consider the following issues:
(1) Whether the Superior Court issued a decision in conflict with and failed to properly apply and follow the binding legal precedent of the United States Supreme Court and this Court, in holding that 75 Pa.C.S. § 3755 does not independently support implied consent on the part of driver suspected or arrested for DUI, rendering the implied-consent statute unconstitutional?
(2) Whether the Superior Court issued a decision in conflict with and failed to properly apply and follow the binding legal precedent of the United States Supreme Court in Mitchell v. Wisconsin, ___ U.S. ___, 139 S.Ct. 2525 (2019), by finding that exigent circumstances did not exist to support a warrantless request to test Defendant’s blood?
For more information, contact Kevin McKeon or Dennis Whitaker.