Com. v. Plovetsky, L.
549 WDA 2017
| Pa. Super. Ct. | Nov 29, 2017Background
- On November 19, 2016, a two-vehicle collision in Indiana County killed Clara Santus; police believed Plovetsky had turned into her lane.
- Troopers at the scene observed no signs of impairment in Plovetsky; he volunteered to go to the hospital for a blood test to show he was not under the influence.
- At the hospital, Trooper Smith (in uniform) read the DL-26/O’Connell warnings to Plovetsky, including that he was under arrest for DUI and the penalties for refusing a chemical test; Plovetsky then consented and his blood tested positive for THC.
- Plovetsky was charged with multiple offenses including vehicular homicide and DUI (chemical test taken November 19, 2016).
- Plovetsky filed a suppression motion relying on Birchfield; the suppression court granted suppression of the blood results on March 17, 2017.
- The Superior Court affirmed, holding that reading the DL-26 warnings in those circumstances converted the encounter into an arrest without probable cause, rendering the blood evidence the fruit of an unlawful arrest and therefore inadmissible.
Issues
| Issue | Commonwealth's Argument | Plovetsky's Argument | Held |
|---|---|---|---|
| Whether Plovetsky was under arrest when blood was drawn | He was not under arrest; he voluntarily consented to the blood draw to avoid civil liability | Reading DL-26 and telling him he was under arrest made the encounter coercive; consent was not voluntary | Court: Trooper’s DL-26 reading conveyed an arrest; Plovetsky was not free to refuse -> arrest found |
| If arrested, whether police had probable cause to arrest for DUI | Police had adequate grounds to investigate and arrest based on crash and warnings | Troopers observed no signs of impairment; no facts supported probable cause | Court: No probable cause shown; arrest unlawful |
| Whether blood evidence is admissible despite procedural/form warnings (Birchfield) | Birchfield permits warrantless blood in some contexts; consent here was voluntary and noncoercive | Birchfield requires voluntariness; coercive arrest/pressure negates consent | Court: Because consent was obtained after an unlawful arrest/coercion, blood is fruit of poisonous tree and suppressed |
| Whether reading DL-26 as "protocol" undermines Plovetsky’s claim of coercion | Trooper testified reading the form was routine/protocol, not coercion | The content and officer’s appearance conveyed arrest regardless of claimed protocol | Court: Objective impression matters; protocol claim insufficient to negate arrest/coercion |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (addressing warrant and consent rules for blood/alcohol testing)
- Wong Sun v. United States, 371 U.S. 471 (1963) (evidence obtained by unlawful governmental intrusion is inadmissible as fruit of the poisonous tree)
- Commonwealth v. Cunningham, 370 A.2d 1172 (Pa. 1977) (applying Wong Sun’s fruit-of-the-poisonous-tree principles in Pennsylvania)
- Commonwealth v. Angel, 946 A.2d 115 (Pa. Super. 2008) (probable cause for DUI determined under totality of circumstances)