DUI Warrantless Blood Draw; Unconscious Driver; Exigent Circumstances

Com. v. Redman, 2018 WL 821878 (Pa. Super. 2018) (unreported), allocatur granted Aug. 20, 2018, appeal docket 44 MAP 2018, following remand in Commonwealth v. Redman, 153 A.3d 1106 (Pa. Super. 2016), vacated 170 A.3d 1024 (Pa. 2017).

Appellant Redman was involved in a one car accident. He was transported by ambulance to a hospital at the direction of investigating State Trooper Sweeney who suspected that Redman had been driving under the influence, but did not charge him at the scene. Hospital personnel rendered Redman unconscious to help address his injuries.  While Redman was unconscious, the State Trooper arrived at the hospital and directed the medical staff to draw and test Redman’s blood’s alcohol content. Redman tested over the limit and subsequently was charged with DUI.  After a motion to suppress his blood test results was denied, Redman was convicted of DUI and sentenced.  On appeal the Superior Court affirmed, but the Supreme Court granted allocatur, vacated Superior Court’s decision, and directed the Superior Court to reconsider Redman’s appeal in light of the Supreme Court’s decision intervening in Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017).

Commonwealth v. Myers involved similar facts, except that the defendant in Myers already was under arrest at the time of the warrantless blood draw that occurred while the defendant was unconscious. As the Supreme Court explained there, the issues raised involved Pennsylvania’s “implied consent” statute (which provides that any person who drives a vehicle is deemed to have given consent to 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 has been driving under the influence). The issues also had a Constitutional dimension because a blood draw is a “search” for which a warrant normally would be required under the Fourth Amendment to the United States Constitution and  Article I, Section 8 of the Pennsylvania Constitution.

As to the statutory issue, the Supreme Court in Commonwealth v. Myers highlighted the fact that notwithstanding statutory implied consent, any person under arrest for DUI has the right to refuse testing:

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”); [Com. v. ]Eisenhart, 611 A.2d [681] at 683 (“The statute grants an explicit right to a driver who is under arrest for [DUI] to refuse to consent to chemical testing.”).

164 A.3d at 1170-1171.

The Myers court went on to hold that, although it had not addressed the question of an unconscious arrestee 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 individuals, but, rather, provides the statutory right of refusal to “any person placed under arrest” for DUI. 75 Pa.C.S. § 1547(b)(1) (emphasis added). By its plain meaning, “any person” necessarily includes an unconscious person.


 Accordingly, we hold that 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.

Id. at 1172.

The Superior Court’s task in the present case on remand was to reconsider its decision to affirm the trial court’s refusal to suppress Redman’s blood alcohol test in light of Commonwealth v. Myers’ holding that the statute’s provision of a right to refuse testing to “any person” placed under arrest for DUI necessarily includes an unconscious person.  The Superior Court concluded on remand that the Commonwealth v. Myers’ holding does not apply, because unlike Myers, Redman was not “under arrest” at the time of the involuntary blood draw, and that while the implied consent to the blood draw applies at any time when there are “reasonable grounds to suspect” that the motorist is under the influence, the right to refuse testing attaches only once the motorist is arrested:

[We] initially determined that § 1547 controlled the outcome of this appeal. Upon further review, and in consideration of Myers, supra, we acknowledge that ruling must be revisited. Simply, Appellant was not under arrest for DUI at the time Trooper Sweeney directed medical staff to draw his blood. Hence, § 1547, and the statutory right to refuse provided to arrestees that we previously relied upon, was not applicable. 75 Pa.C.S. § 1547(b)(1); Eisenhart, supra. We previously concluded that, since Appellant was unconscious at the time of his blood draw, he could not avail himself of his statutory right to refuse, and thus, the blood draw was justified based on his implied consent alone. As discussed above, Myers held that the Implied Consent Law does not justify a warrantless blood draw of an unconscious arrestee since that individual is permitted, by statute, an opportunity to refuse.

On reconsideration, we find that, since Appellant was not under arrest, the warrantless blood draw at issue herein was subject to § 3755, and therefore, we reach the merits of Appellant’s claimed errors.

Slip Op. at 10.

In reasoning that the “warrantless blood draw at issue herein was subject to § 3755” the Superior Court is referring to the companion statute to75 Pa.C.S. § 1547 that requires medical personnel to perform, at the request of a police officer, blood tests on individuals treated for injuries sustained in motor vehicle accidents where “probable cause exists to believe a violation of the section 3802 (relating to driving under influence of alcohol or controlled substance) was involved.” 75 Pa.C.S. § 3755(a). 

Redman contended on remand to the Superior Court that Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013) negates the constitutional basis for § 3755. The Superior Court disagreed:

In McNeely, a plurality of the United States Supreme Court determined that, since a blood draw was a search within the Fourth Amendment, a warrant is generally required, unless one of the exceptions to the warrant requirement applied. Specifically, the High Court found that the dissipation of alcohol from the blood did not constitute a per se exigency when applying the exigent circumstances exception to the warrant requirement.

Slip Op. at 7 n. 2.

As the court further explained, “Exigent circumstances are a well-established exception to the warrant requirement. The exception applies 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,’” citing McNeely, 133 S.Ct. at 1558.  Based on the facts it believes demonstrated exigent circumstances in Redman’s situation, the Superior Court found that the warrantless pre-arrest blood draw was justified:

Under the circumstances of this case, Trooper Sweeney lacked sufficient time to obtain a warrant when he determined that a blood draw was necessary to preserve Appellant’s blood sample. … Trooper Sweeney had a short window to collect the blood sample from Appellant after he established that there was probable cause to believe Appellant had operated his vehicle under the influence of alcohol, and that Appellant was unable to consent to the search. The record reveals that Appellant left the Knight’s Out Bar at approximately 2:05 a.m. Since emergency medical personnel were already on-site and treating Appellant’s injuries when Trooper Sweeney was dispatched, we can infer that the accident happened at least a few minutes prior to 2:30 a.m. Hence, the trooper had until no later than 4:30 a.m. to ensure the blood sample was collected.

After finishing his investigation, Trooper Sweeney traveled one-half hour to the hospital where Appellant was receiving treatment. It was not until 3:40 a.m., or less than fifty minutes before the two-hour statutory requirement [for performing a blood test] would expire, and at least one hour and thirty five minutes from Appellant’s last known drink, that Trooper Sweeney determined a blood draw pursuant to § 3577 was necessary. Until that point, Trooper Sweeney had no reason to believe that Appellant would not be conscious for the purposes of requesting a blood draw, especially since Appellant was conscious when he was transported from the scene of the accident to the hospital.

Further, even acknowledging that an MDJ [Magisterial District Justice] was on-call to handle warrant requests, Trooper Sweeney was the only officer involved in the matter, and at that hour, it was not reasonably practicable for him to procure the necessary paperwork and contact the MDJ with time remaining to acquire the blood sample.

Slip Op. at 14-16.

The Supreme Court has granted allocatur once again to address the warrantless blood draw issue in the context of an unconscious DUI suspect. The issues, as stated by Petitioner, are:

  1. Whether the Superior Court’s decision conflicts with the Supreme Court decision by holding in the instant case that a warrantless legal blood draw can be administered on an unconscious driver where the police officer has the sole determination of probable cause to arrest the driver which is in direct conflict with the holding of the published opinion in Commonwealth v. Myers, 7 EAP 2016, which required a search warrant?
  2. Whether the Superior Court holding in the instant case conflicts with the US Supreme Court decisions in Missouri v. McNeely, 133 S.Ct. 1552 (2013), Birchfield v. North Dakota, 136 S.Ct. 2160, and Frost et. al. v. Railroad Commission of State of California, 46 S.Ct. 605 by stating in the instant case that because Appellant drove on this Commonwealth ‘s roads, that this Commonwealth’s Implied Consent Statute 75 PACSA 1547 combined with 75 PACSA 3755 allowing for medical personal to take blood draws, allows for a warrantless legal blood draw which is in direct conflict with the US Supreme Court?
  3. Whether 75 Pa.C.S.A. 3755 which allows for the warrantless taking of a legal blood draw by medical personal once they determine there is probable cause is unconstitutional as it violates a Defendant ‘s constitutional right against a warrantless seizure in light of the holdings in Missouri v. McNeely, 133 S.Ct. 1552(2013) and Birchfield v. North Dakota, 136 S.Ct. 2160?