PA Supreme – Pennsylvania’s (75 Pa.C.S. § 1547) creates a statutory right to refuse chemical testing that is applicable to both conscious and unconscious drivers.

Commonwealth v. Myers – Majority Opinion (Justices Wecht, Donohue, and Dougherty; Justice Todd Joins Parts I, II(A), II(B), and II(D).

Commonwealth v. Myers – Justice Saylor Concurring (Justice Baer Joins in Full; Justice Donohue joins Part II)

Commonwealth v. Myers – Justice Todd Concurring

Commonwealth v. Myers Justice Mundy Dissenting

Commonwealth v. Myers, 118 A.3d 1122 (Pa. Super. 2015)

The defendant in this case was found screaming in his vehicle with the engine running and lights flashing. He was ultimately taken into custody and taken to the hospital. Later when another officer arrived at the hospital to request a blood draw he found the defendant was unconscious as a result of the hospital staff administering him Haldol.

The officer, nevertheless, read the DL 26 form to the defendant and, when he did not refuse, asked the nurse to draw blood. He was later charged with DUI. The defendant sought suppression arguing the blood draw was conducted in violation of the Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the PA Constitution. The municipal court granted suppression finding that while there was probable cause for the DUI arrest, the defendant’s unconscious state prohibited him from consenting or refusing the blood draw and that the police demonstrated no reason why a search warrant could not be obtained. The Common Pleas and Superior affirmed the suppression ruling.

The PA granted allowance of appeal on the Commonwealth’s petition to review the following issue:

Did the err in holding, in a published decision, that a warrant was required to obtain blood for a chemical test where the officer had probable cause to believe that [Myers] was driving under the influence of alcohol or a controlled substance, and [Myers] did not affirmatively refuse consent?

The Commonwealth argued that implied consent is a valid exception to the warrant requirement, and that the statutory right to refuse chemical testing does not apply to an unconscious defendant. The Defendant countered that PA’s implied consent law does not permit the taking of blood involuntarily but instead it penalizes a person who refuses testing.

A majority of the Court found that the implied consent law functions to make the motorist decide between consenting to a chemical test, or invoking the statutory right to refuse which carries with it consequences like suspension, refusal evidence admissible at , and heightened penalties. The Court also found this statutory right to refuse applies to unconscious individuals.

TSRP NOTE: While not directly addressing the issue of how this would affect §3755, the Court in footnote 14 mentions Commonwealth v. Reidel, 651 A.2d 135 (Pa. 1994), wherein the officer was able to secure results of a blood test under the authority of that section. The Court mentions it only to point out that in the Reidel case the right to refuse did not attach because the defendant was not under arrest, and the holding did not rely on whether the defendant was conscious. The Court did not mention Commonwealth v. March, 154 A.3d 803 (Pa. Super. 2017) a more recent case dealing with §3755 that distinguishes its holding from both McNeely and Myers.

The Court held that a motorist has an absolute right to refuse chemical testing under the implied consent , and here, the defendant’s “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.”

A plurality of the Court (Justices Wecht, Dougherty, and Donahue) goes on to discuss in Part II(C) their opinion that the implied consent statute is not an independent exception to the warrant requirement. In the analysis, they look at other states for guidance. The Court reasoned “Our implied consent statute is not an ipso facto authorization to conduct a chemical test. Rather, it is a statutory mechanism by which a police officer may seek to obtain voluntary consent unique to this the context in that the law prescribes consequences for failure to provide such consent.”

A majority of the Court found that “no credible assertion can be made that Myers was provided with the opportunity to make a knowing and conscious choice regarding whether to undergo testing or to exercise his right to refusal.” In affirming the Superior Court ruling the court found no warrant was obtained and no exception to the warrant requirement was present which necessitates suppression of the blood results.

Justice Saylor – Concurring (Joined in full by Justice Baer and in which Justice Donohue joins Part II)

Justice Saylor agrees with the affirmance of the Superior Court, but for a different reason. Justice Saylor would suppress based solely on a Birchfield analysis finding the criminal penalties for refusal of a blood test makes the implied consent statute unconstitutional.

Justice Todd – Concurring

Wrote separately to address her not joining part II(C). She writes, “In my view, the statutory analysis suffices to resolve the issue before us, and so I would not address the constitutional dimensions.”

Justice Mundy – Dissenting

Concludes that Pennsylvania’s implied consent statute authorizes a warrantless blood draw of an unconscious person. In reaching this conclusion she finds that the statute in fact implies a motorist’s consent and the mere fact that they are unable to revoke that consent does not make it less valid. Justice Mundy also notes that the Majority turned the implied consent statute into an actual consent statue when it wrote, “Our implied consent statute is not an ipso facto authorization to conduct a chemical test. Rather, it is a statutory mechanism by which a police officer may seek to obtain voluntary consent unique to this the context in that the law prescribes consequences for failure to provide such consent.”

TSRP NOTE: While not explicit, there will likely be arguments forthcoming that the only method to have knowing and voluntary consent will be to have the DL 26 read in every case. While the plurality section does seem to lean this way the triggering event for the implied consent warnings remains refusal. It is advisable however, that each county make a determination as to the procedure that their officers should follow. Also, on a related note, the implied consent statute was modified by SB 553 which was signed into law today. Effective immediately the requirement for an officer to advise a person of potential criminal penalties for refusal of blood testing has been removed.