COMMONWEALTH of Pennsylvania, Appellant. v. Darrell MYERS, Appellee
No. 7 EAP 2016
Supreme Court of Pennsylvania.
ARGUED: September 14, 2016. DECIDED: July 19, 2017
164 A.3d 1162
Karl Baker, Esq., Defender Association of Philadelphia, Bradley Steven Bridge, Esq., for Appellee.
Alisa Rebecca Hobart, Esq., for Pennsylvania District Attorneys Association, Appellant Amicus Curiae.
Barbara A. Zemlock, Esq., Perry Shore Weisenberger & Zemlock, for Pennsylvania Association of Criminal Defense Lawyers, Appellee Amicus Curiae.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Justice Wecht delivers the Opinion of the Court with respect to Parts I, II(A), II(B), and II(D), and announces the Judgment of the Court. The opinion is joined in full by Justices Donohue and Dougherty. Justice Todd joins Parts I, II(A), II(B), and II(D) of the opinion, as well as its mandate. Chief Justice Saylor files a concurring opinion, joined in full by Justice Baer and joined in part by Justice Donohue. Justice Mundy files a dissenting opinion.
OPINION
JUSTICE WECHT1
When a motorist drives on a road in Pennsylvania, the motorist is “deemed to have given consent” to chemical testing to determine whether he or she is driving under the influence of alcohol or a controlled substance (“DUI“), provided that a police officer first develops “reasonable grounds” to suspect such impairment.
In this case, we granted allowance of appeal to consider the lawfulness of a warrantless blood draw conducted upon a motorist who, having been arrested for DUI, had then been rendered unconscious by
I. Background
On December 29, 2012, at approximately 3:30 p.m., Philadelphia Police Officer James Bragg was on routine patrol when he received a radio call indicating that there was a person screaming in the vicinity of 100 West Penn Street. The radio call warned Officer Bragg to be on the lookout for a maroon SUV. When Officer Bragg arrived on West Penn Street, he observed a vehicle matching that description with its engine running and its brake lights repeatedly flickering on and off. A man later identified as Myers was sitting in the driver‘s seat. Officer Bragg activated his siren and emergency lights and pulled up behind the maroon SUV. Myers exited the vehicle and began to stagger toward the officer, even though he had not been ordered to step out of the vehicle. Myers tried to speak, but his speech was so slurred that Officer Bragg could not understand what he was saying. Officer Bragg detected the smell of alcohol emanating from Myers, and observed a bottle of brandy on the front seat of the SUV. The bottle was in plain view, as Myers had left the driver‘s door open when he exited the vehicle. Based upon his observations and experience, Officer Bragg believed that Myers was intoxicated to the point that he required medical attention. Officer Bragg placed Myers under arrest for DUI and called for a wagon, which transported Myers to Einstein Medical Center.
Around 4:45 p.m. that same day, Philadelphia Police Officer Matthew Domenic arrived at Einstein Medical Center, having been informed that an individual at that hospital had been arrested for DUI. A few minutes before Officer Domenic arrived, however, the hospital staff administered four milligrams of Haldol4 to Myers, rendering him unconscious. Officer Domenic attempted to communicate with Myers by speaking his name and tapping him on the shoulder, but Myers was unresponsive. Nevertheless, Officer Domenic read O‘Connell warnings to Myers. Myers, still unconscious, was unable to respond in any manner. Officer Domenic then instructed a nurse to draw Myers’ blood. It is undisputed that neither Officer Bragg nor Officer Domenic attempted to secure a search warrant for this blood draw. It also is undisputed that, due to his unconscious state, Myers could neither hear Officer Domenic nor sign the implied consent warnings.
The Commonwealth charged Myers with DUI.5 Myers filed a pre-trial motion to suppress the evidence derived from the
In McNeely, a plurality of the United States Supreme Court explained that, because a blood draw unquestionably is a search within the meaning of the Fourth Amendment, a warrant generally is required, unless one of the exceptions to the warrant requirement applies. Id. at 1558. One such exception exists for searches based upon exigent circumstances, “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.” Id. (quoting Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011)). Missouri sought a per se rule that the natural dissipation of alcohol from the bloodstream always is an exigent circumstance, such that there never is a need for a warrant for a blood draw in DUI cases. Id. at 1560. The Court rejected Missouri‘s argument, instead concluding that whether exigent circumstances exist in DUI cases must be determined in each individual case, based upon the totality of the circumstances. Id. at 1561-62.
Following a suppression hearing on May 21, 2013, the Philadelphia Municipal Court granted Myers’ motion and suppressed the results of the blood draw. The Municipal Court concluded that, although probable cause existed for the DUI arrest, the officers were required to obtain a warrant for the blood draw because Myers’ unconscious state prevented him from consenting or refusing, and because no exigent circumstances were present. Considering the totality of the circumstances as required by McNeely, the Municipal Court concluded that it would not have been unreasonable for the police to obtain a warrant before having Myers’ blood drawn.
The Commonwealth appealed to the Court of Common Pleas, which affirmed the Municipal Court‘s suppression order. The trial court, also applying McNeely, concluded that the Commonwealth failed to show “that it would have been impracticable or infeasible for [either officer] to obtain a warrant in the circumstances.” Trial Court Opinion, 1/17/2014, at 7. In addition, the trial court concluded that, because Myers was unconscious at the time of the blood draw, “he did not have the opportunity to decline or refuse to have his blood sample taken on the date in question.” Id. at 8.
Notes
II. Analysis
Before this Court, the Commonwealth argues that the implied consent statute establishes a valid exception to the warrant requirement of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, and that the statutory right to refuse chemical testing does not apply to unconscious arrestees. The Commonwealth‘s central premise is that, under
Myers responds to the Commonwealth‘s arguments on both statutory and constitutional grounds. With regard to the authority granted to law enforcement personnel under the statute, Myers contends that Pennsylvania‘s implied consent scheme “does not actually permit the involuntary taking of a blood sample,” but, rather, “it penalizes a person for refusing to permit the taking of a sample.” Brief for Myers at 12. Myers argues that, “because [he] was forcibly medicated and rendered uncon-
In Birchfield, the Supreme Court addressed the constitutionality of warrantless searches of breath and blood under the Fourth Amendment, specifically with regard to the search-incident-to-arrest and consent exceptions to the warrant requirement. The Court concluded that “the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving[,]” but “reach[ed] a different conclusion with respect to blood tests.” Id. at 2184. Because obtaining a blood sample is significantly more intrusive than a breath test, the Court determined that a blood test may not be administered as a search incident to arrest. Id. at 2185. Following that conclusion, the Court considered whether warrantless blood tests may be justified under state implied consent laws. Noting that its “prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply,” the Court concluded:
It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.
Id. Accordingly, the Court determined that a warrantless blood draw cannot be justified by implied consent where the refusal to submit to the test subjects an individual to criminal penalties. Id. at 2186.
With regard to the constitutional dimension of this case, Myers argues that the warrantless blood draw requested by Officer Domenic was unlawful under Birchfield, and that the implied consent statute did not cure the constitutional infirmity. See Brief for Myers at 7-9. Further, McNeely held that the dissipation of alcohol in the bloodstream does not establish a per se exigency. Therefore, Myers contends, if the Commonwealth sought to rely upon exigent circumstances, the totality of the circumstances must have demonstrated an actual exigency. Because the Commonwealth did not establish any exigency, Myers contends that no valid exception to the warrant requirement justified the blood draw, and the results of that blood draw correctly were suppressed. Id. at 15-16.10
The Commonwealth filed its principal brief before Birchfield was decided. Accordingly, the Commonwealth responded to Myers’ arguments regarding that decision in a reply brief. The Commonwealth contends that, as it related to implied consent laws, the primary concern in Birchfield was that consent to a search could not be coerced by the threat of criminal penalties. Here, the Commonwealth argues, “[a]ny potential coercive effect of the statute was irrelevant, because [Myers] was unconscious and so could not be coerced.” Reply Brief for Commonwealth at 3. The Commonwealth further maintains that McNeely has no application to this case,
The parties’ arguments broadly relate to two distinct inquiries: whether the blood draw conducted in this case was authorized by the implied consent statute, and whether the blood draw otherwise was permissible under the Fourth Amendment and under Article I, Section 8 of the Pennsylvania Constitution. We first consider the language of the implied consent statute and our prior interpretations of the statute‘s requirements. In construing the statute, we remain mindful that the chemical tests contemplated by the implied consent statute are searches within the meaning of the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (administration of a blood test “plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment.“); Skinner v. Ry. Labor Execs.’ Ass‘n, 489 U.S. 602, 616-17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (administration of a breath test “implicates similar concerns about bodily integrity” and “should also be deemed a search.“). Accordingly, our analysis must comport with the constitutional concerns underlying the statute. Our consideration of the implied consent statute involves a question of statutory interpretation, over which our standard of review is de novo and our scope of review is plenary. See Commonwealth v. Kingston, 143 A.3d 917, 921 (Pa. 2016).
A. Operation of the implied consent scheme
The implied consent statute provides, in relevant part:
(a) General rule.— Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth 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 if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle:
(1) in violation of
section 3802 (relating to driving under influence of alcohol or controlled substance)....
* * *(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation ofsection 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows:(i) Except as set forth in subparagraph (ii), for a period of 12 months.
(ii) For a period of 18 months if any of the following apply:
(A) The person‘s operating privileges have previously been suspended under this subsection.
(B) The person has, prior to the refusal under this paragraph, been sentenced for:(I) an offense under
section 3802 ;
(II) an offense under former section 3731;
(III) an offense equivalent to an offense under subclause (I) or (II); or
(IV) a combination of the offenses set forth in this clause.(2) It shall be the duty of the police officer to inform the person that:
(i) the person‘s operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating
section 3802(a)(1) , the person will be subject to the penalties provided insection 3804(c) (relating to penalties).
* * *(e) Refusal admissible in evidence.— In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of
section 3802 or any other violation of this title arising out of the same action, the fact that the defendant refused to submit to chemical testing as required by subsection (a) may be introduced in evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence but it may be considered along with other factors concerning the charge.
As indicated in Subsection 1547(b)(2)(ii), this provision is related closely to the statute prescribing penalties for DUI convictions,
The penalties imposed for DUI convictions are prescribed by
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.”
Under this statutory scheme, a motorist placed under arrest for DUI has a critical decision to make. The arrestee may submit to a chemical test and provide the police with evidence that may be used in a subsequent criminal prosecution, or the arrestee may invoke the statutory right to refuse testing, which: (i) results in a mandatory driver‘s license suspension under
B. The right of refusal applies to unconscious arrestees.
The Commonwealth argues that the right of refusal under Subsection 1547(b)(1) does not apply to unconscious individuals, who are not entitled to revoke their “already-provided consent.” Brief for Commonwealth at 17. The Commonwealth relies upon this Court‘s comment in Eisenhart that “[t]he issue of the unconscious driver or a driver whose blood is removed for medical purposes is not before us today, but is currently pending before this Court in another matter.”13 611 A.2d at 684. The Eisenhart Court held that “there is an absolute right to refuse, and ... blood test results acquired in contravention of that right must be suppressed.” Id. at 682. However, the Court restricted this holding to the right of the “conscious driver” to refuse testing. Id. at 684.14
Although this Court has not reached the question of unconsciousness in
The Commonwealth alleges that the Superior Court drew a flawed distinction between conscious and unconscious motorists. See Brief for Commonwealth at 24 (arguing that the Superior Court “distinguished between conscious and unconscious drivers without any analysis,” and that neither the statute nor this Court have made such a distinction) (emphasis in original). The Commonwealth misunderstands the Superior Court‘s reasoning. The Superior Court concluded that the statutory right of refusal applied to Myers because he was under arrest for DUI—just as it would apply to a conscious individual under arrest for DUI—but that his unconsciousness prevented him from deciding whether to exercise his right to refuse. See Myers, 118 A.3d at 1129. In other words, the Superior Court drew no distinction between conscious and unconscious motorists, and, in accordance with the plain meaning of Subsection 1547(b)(1), concluded that the right of refusal applied because of Myers’ status as an arrestee. It is the Commonwealth that distinguishes erroneously between conscious and unconscious motorists by arguing that the right of refusal which applies to “any person placed under arrest” for DUI does not apply to an unconscious arrestee.
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.
C. Implied consent is not an independent exception to the warrant requirement.15
Having determined that the statutory right of refusal applies to all DUI arrestees without regard to an arrestee‘s state of consciousness, we next consider the consequence that flows from the deprivation of that right. The Commonwealth argues that the blood draw conducted in this case was authorized because, in the absence of an express refusal to submit to a chemical test, the implied consent provision dispenses with the need to obtain a warrant. In support, the Commonwealth cites several statements from this Court‘s previous decisions which suggest that implied consent may serve as an exception to the warrant requirement. See Brief for Commonwealth at 15 (quoting Riedel, 651 A.2d at 139 (listing exceptions to the warrant requirement, including “actual consent, implied consent, search incident to lawful arrest, and exigent circumstances“) (emphasis added); Kohl, 615 A.2d at 315 (stating that “the implied consent provisions ... dispense with the need to obtain a warrant” where a police officer has probable cause to suspect DUI)).
Although our main focus is upon interpretation of the implied consent statute, we nonetheless observe that the provisions of the statute are subject to the constitutional limitations imposed upon the searches that the statute contemplates. The statute cannot authorize what the Fourth Amendment or Article I, Section 8 would prohibit. Under the federal and state constitutions, it is axiomatic that “[a] search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies.” Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 888 (2000). One such exception is voluntary consent to a search. See id. at 888-89; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When a search is premised upon consent, “the Fourth and Fourteenth Amendments require [the government to]
Although I agree with the main opinion that this case does not present a “facial constitutional challenge” to the entire statutory scheme, Lead Opinion, at 1180, Myers has disputed the constitutionality of a blood draw from an unconscious motorist, thus placing the issue before the Court. See, e.g., Commonwealth v. Myers, 118 A.3d 1122, 1124 (Pa. Super. Ct. 2015) (noting Myers’ challenge pursuant to Missouri v. McNeely). The Supreme Court of the United States has previously referred to such a right of refusal as “simply a matter of grace bestowed by the ... legislature” and not constitutionally required. South Dakota v. Neville, 459 U.S. 553, 563-64, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). In addition, the Supreme Court and other tribunals have noted that legislatures added the statutory rights as a mechanism for avoiding any violent confrontations that could arise if a blood draw were needed to be administered by force. Id. at 559-60; see also Bush v. Bright, 264 Cal.App.2d 788, 71 Cal.Rptr. 123, 124 (1968); Roche v. State, 462 A.2d 1083, 1084 (Del. 1983); State v. Humphreys, 70 S.W.3d 752, 761 (Tenn. Crim. App. 2001) (citation omitted).U.S. CONST. amend. IV. To be sure, post-McNeely it is still possible for the Commonwealth to show an exigency exists, under the totality of the circumstances of each case. See generally McNeely, 133 S.Ct. at 1559 (stating, “[t]o determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances[ ]“). This is particularly crucial for the more rural counties of this Commonwealth. Many of these counties are larger by area, yet may only have one hospital and only one magistrate on call on any particular night to review warrant applications. Moreover, there may be a great distance between the arrest site, the hospital, and the magistrate. Undoubtedly, these are critical factors in conducting an exigency analysis. See generally Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (noting that a search “may be legal when there is compelling need for official action and no time to secure a warrant[ ]“).The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
PA. CONST. art. I, § 8. I note the Court held that a warrantless breath test may be administered as a search incident to arrest for DUI. Birchfield, 136 S.Ct. at 2185.The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
Did the Superior Court 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?Commonwealth v. Myers, 131 A.3d 480 (Pa. 2016) (per curiam). North Dakota‘s implied consent scheme specifically stated “[a]n individual who operates a motor vehicle on a highway or on public or private areas to which the public has a right of access for vehicular use in this state who refuses to submit to a chemical test, or tests ... is guilty of an offense.” N.D.C.C. § 39-08-01(2)(a). Although Pennsylvania does not make refusal a separate crime, it nevertheless imposes higher mandatory minimum and maximum criminal penalties for refusal. Compare
In recent years, a multitude of courts in our sister states have interpreted their respective—and similar—implied consent provisions and have concluded that the legislative proclamation that motorists are deemed to have consented to chemical tests is insufficient to establish the voluntariness of consent that is necessary to serve as an exception to the warrant requirement. See, e.g., Williams v. State, 296 Ga. 817, 771 S.E.2d 373, 377 (2015) (collecting cases and noting that “what the cases seem to indicate is that mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant“).
In some circumstances, courts have focused upon the constitutional requirement that consent always must be revocable. See, e.g., Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (“A suspect may of course delimit as he chooses the scope of the search to which he consents.“). Voluntariness is always the touchstone of the analysis. In Byars v. State, 336 P.3d 939, 946 (Nev. 2014), for example, the Supreme Court of Nevada held that a provision of Nevada‘s implied consent statute was unconstitutional in that “the statute does not allow a driver to withdraw consent, thus a driver‘s so-called consent cannot be considered voluntary.” The Supreme Court of Idaho similarly has rejected an interpretation of that state‘s implied consent statute that would render consent irrevocable. See State v. Wulff, 157 Idaho 416, 337 P.3d 575, 581 (2014) (“[I]rrevocable implied consent operates as a per se rule that cannot fit under the consent exception because it does not always analyze the voluntariness of that consent.“). To afford its statute a constitutional construction, the Wulff Court held that “Idaho‘s implied consent statute must jump two hurdles to qualify as voluntary: (1) drivers give their initial consent voluntarily and (2) drivers must continue to give voluntary consent.” Id. at 582.
Even where implied consent statutes establish a clear right of refusal, as is the case in Pennsylvania, numerous state courts have concluded that implied consent laws which provide that motorists are deemed to consent to chemical tests do not, in themselves, serve as exceptions to the warrant requirement. Rather, the statutes authorize a police officer to request a motorist‘s submission to a chemical test, at which point the motorist must choose either (a) to comply with the test or (b) to refuse and accept the consequences that accompany refusal. Voluntariness of the motorist‘s consent at the time of the test remains central to the analysis.
Recent cases from our sister states are illuminating. In the State of Washington, the implied consent statute mandates, in a manner very similar to Pennsylvania‘s statute, that motorists reasonably suspected of DUI are “deemed to have given consent” to chemical testing, but nevertheless provides a statutory right of refusal. See
“Implied consent” is not an intuitive or plainly descriptive term with respect to how the implied consent law works. We suspect that it is a source of confusion. On occasion in the past we have seen the term “implied consent” used inappropriately to refer to the consent a driver gives to a blood draw at the time a law enforcement officer requires that driver to decide whether to give consent. However, actual consent to a blood draw is not “implied consent,” but rather a possible result of requiring the driver to choose whether to consent under the implied consent law.
There are two consent issues in play when an officer relies on the implied consent law. The first begins with the “implied consent” to a blood draw that all persons accept as a condition of being licensed to drive a vehicle on Wisconsin public road ways. The existence of this “implied consent” does not mean that police may require a driver to submit to a blood draw. Rather, it means that, in situations specified by the legislature, if a driver chooses not to consent to a blood draw (effectively declining to comply with the implied consent law), the driver may be penalized. This penalty scenario for “refusals” created by the implied consent law sets the scene for the second consent issue.
The State‘s power to penalize a refusal via the implied consent law, under circumstances specified by the legislature, gives law enforcement the right to force a driver to make what is for many drivers a difficult choice. The officer offers the following choices: (1) give consent to the blood draw, or (2) refuse the request for a blood draw and suffer the penalty specified in the implied consent law. When this choice is offered under statutorily specified circumstances that pass constitutional muster, choosing the first option is voluntary consent. The fact that the driver is forced to make a difficult choice does not render the consent involuntary.
State v. Padley, 354 Wis.2d 545, 849 N.W.2d 867, 876 (2014).
In State v. Butler, 232 Ariz. 84, 302 P.3d 609, 613 (2013), the Supreme Court of Arizona noted that, under the state‘s implied consent law, “the officer is directed to ask the arrestee to submit to the test, and the arrestee may then refuse by declining to expressly agree to take the test.” The Court held that voluntariness of the arrestee‘s consent at the time of the test is a constitutional necessity. Id. (holding that “the Fourth Amendment requires an arrestee‘s consent to be voluntary to justify a warrantless blood draw“). The Supreme Court of Delaware has held that, rather than operating as a blanket exception to the warrant requirement, “a Fourth Amendment totality of the circumstances analysis applies” in considering the voluntariness of consent under Delaware‘s implied consent law. Flonnory v. State, 109 A.3d 1060, 1062 (Del. 2015). Likewise, in Williams, the Supreme Court of Georgia remanded for a determination of whether the defendant gave actual consent to a blood test, “which would require the determination of the voluntariness of the consent under the totality of the circumstances.” 771 S.E.2d at 377. Agreeing with the Williams Court‘s assessment of the developing trend in the majority of state courts, the Supreme Court of Nebraska has similarly concluded that voluntary consent to a blood draw must be established by the totality of the circumstances, but the Court noted that the state‘s implied consent statute is a consideration in that analysis. See State v. Modlin, 291 Neb. 660, 867 N.W.2d 609, 621 (2015) (“[W]hen the State claims the blood draw was proper pursuant to the consent exception to the warrant requirement, actual voluntary consent is to be determined by reference to the totality of the circumstances, one of which is the implied consent statute.“). Finding a right to refuse consent under both the implied consent statute and state constitution, the Supreme Court of Hawai‘i has held that, “in order to legitimize submission to a warrantless BAC test under the consent exception, consent may not be predetermined by statute, but rather it must be concluded that, under the totality of the circumstances, consent was in fact freely and voluntarily given.” State v. Won, 137 Hawai‘i 330, 372 P.3d 1065, 1080 (2015).
In a case sharing factual underpinnings with the instant matter, in that the defendant was unconscious at the time of a blood draw, the California Court of Appeal in People v. Arredondo, 199 Cal.Rptr.3d 563 (App. 2016), held that the defendant‘s unconsciousness rendered him incapable of manifesting voluntary consent to a blood draw, and that statutorily implied consent was insufficient to justify the failure to obtain a warrant.16 Stressing the necessity that consent to a search must be
From these recent decisions of our sister courts we discern a clear and unmistakable trend toward the recognition that statutorily implied consent alone does not satisfy the consent exception to the warrant requirement, and that chemical tests conducted under such statutes must be analyzed in the same manner as any other search alleged to be justified by the subject‘s consent, i.e., the consent must be given voluntarily, and voluntariness is evaluated under the totality of the circumstances. See Schneckloth, 412 U.S. at 248-49. In accordance with the substantial weight of these authorities, we reject the Commonwealth‘s contention that the implied consent provision of
Our implied consent statute is not an ipso facto authorization to conduct a chemical test. Rather, it is the statutory mechanism by which a police officer may seek to obtain voluntary consent, unique to this context in that the law prescribes consequences for the failure to provide such consent.18 The statute contemplates a po-
Myers is correct in observing that Pennsylvania‘s implied consent scheme “does not actually permit the involuntary taking of a blood sample,” but, rather, “it penalizes a person for refusing to permit the taking of a sample.” Brief for Myers at 12. As true of Pennsylvania‘s implied consent statute as it was of Wisconsin‘s, the Padley court aptly observed that “the implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions [for refusal].” Padley, 849 N.W.2d at 879 (emphasis in original). The statute does not authorize police officers to seize bodily fluids without an arrestee‘s permission. Instead, it imposes an ultimatum upon the arrestee, who must choose either to submit to a requested chemical test or to face the consequences that follow from the refusal to do so.
Were we to interpret Subsection 1547(a) in a manner that would authorize a compelled chemical test without regard to the arrestee‘s voluntary consent at the time of the test, we effectively would read Subsection 1547(b) out of the statutory scheme and jeopardize the constitutionality of the statute as a whole, inasmuch as we would countenance a “consent search” that violates the constitutional requirement that consent be voluntary and a product of one‘s own free will. To the contrary, under Subsection 1547(b)(1), “there is an absolute right to refuse.” Eisenhart, 611 A.2d at 682. Under Subsection 1547(b)(2), “[i]t shall be the duty of the police officer” to inform the arrestee of the consequences of refusal.
Although it does not squarely resolve the question of whether implied consent may serve as an independent warrant exception, the Birchfield decision does not suggest any contrary conclusion. To be sure, Birchfield (like our own precedents) provides a general if uncontroversial endorsement of the concept of implied consent. The Court noted that its “prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.” Birchfield, 136 S.Ct. at 2185. But Birchfield in no way suggests that the existence of a statutory implied consent provision obviates the constitutional necessity that consent to a search must be voluntarily given, “and not the result of duress or coercion, express or implied.” Schneckloth, 412 U.S. at 248. In conjunction with its reliance upon Schneckloth, the Supreme Court‘s holding, “that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense,” Birchfield, 136 S.Ct. at 2186, appears to be premised upon the coercive effect of the threat of criminal punishment, inasmuch as such coercion may render one‘s consent involuntary. Indeed, the Commonwealth presently argues that the gravamen of the Birchfield Court‘s reasoning was concern for the inherent coercion that follows from the threat of criminal prosecution. See Reply Brief for Commonwealth at 2-3 (arguing that Birchfield “disapproved only of blood tests obtained through coercion, and held statutes that coerce consent by ‘pain of committing a criminal offense’ are to that extent invalid“) (quoting Birchfield, 136 S.Ct. at 2186).
The Birchfield Court‘s application of its holding further supports the conclusion that, despite the existence of an implied consent provision, an individual must give actual, voluntary consent at the time that testing is requested. One of the petitioners before the Birchfield Court, Steve Michael Beylund, submitted to a blood draw after being provided implied consent warnings that, in light of the Court‘s decision, failed to pass constitutional muster. Considering the facts of Beylund‘s case, the Court explained that, “[b]ecause voluntariness of consent to a search must be ‘determined from the totality of all the circumstances,’ Schneckloth, [412 U.S. at 227], we leave it to the state court on remand to reevaluate Beylund‘s consent.” Birchfield, 136 S.Ct. at 2186. The clear lesson is that the requirement of voluntariness remains in full force despite the existence of a statutory implied consent provision.
Of particular salience for today‘s case, the Birchfield Court addressed the circumstance in which a DUI suspect is unconscious when a chemical test is sought. The Court explained:
It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.
Furthermore, although the viability of implied consent as an independent warrant exception was not directly at issue in McNeely, in which the United States Supreme Court addressed the exigent circumstances exception, some courts have found resonance in the Supreme Court‘s treatment of another case in light of McNeely, to wit, Aviles v. State, 385 S.W.3d 110 (Tex. App. 2012), cert. granted, judgment vacated, 571 U.S. 1119, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014). Without any discussion of the exigent circumstances exception at issue in McNeely, the Aviles court determined that Texas’ implied consent scheme authorized a mandatory blood draw “without express consent and without a warrant,” id. at 116, and that such a blood draw did not violate the Fourth Amendment. After issuing its decision in McNeely, the Supreme Court granted certiorari in Aviles, reversed the Texas court‘s decision, and remanded for further consideration in light of McNeely. See Aviles v. Texas, 571 U.S. 1119, 134 S.Ct. 902, 187 L.Ed.2d 767 (2014). Because, read broadly, the Supreme Court‘s holding in McNeely that, “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances[,]” 133 S.Ct. at 1563, could be interpreted as precluding all per se exceptions to the warrant requirement in this context, and because the Court‘s remand of Aviles for reconsideration in light of McNeely cannot be reconciled if that holding has no relevance to implied consent statutes, some courts have concluded that McNeely casts doubt upon the viability of implied consent as an exception to the warrant requirement, absent a finding of voluntary consent under the totality of the circumstances. See, e.g., Wulff, 337 P.3d at 581 (opining that remand in Aviles “must indicate that McNeely‘s holding includes examining the totality of the circumstances in all cases where an officer orders a forced warrantless blood draw[,]” and suggesting that the Supreme Court “rejected [Texas‘] implied consent statute as a per se exception to the Fourth Amendment.“); Byars, 336 P.3d at 946 (remand in Aviles “undermines support for the conclusion that consent alone is a viable justification for a warrantless search where the subject of the search does not have the option to revoke consent.“).20
We would not go so far as to conclude that any particular ruling upon the viability of implied consent as a warrant exception necessarily would “nullify” McNeely, inasmuch as that decision may be read narrowly to apply only to the exigent circumstances exception. However, we do agree with Professor LaFave that McNeely does not cast doubt upon the principle that the consent exception to the warrant requirement requires analysis under the totality of the circumstances, and may not be satisfied merely by legislative proclamation. Although the Birchfield decision does not state expressly whether implied consent, standing alone, may obviate the warrant requirement as a general matter, we find support in that decision for the continued application of the well-established principle that consent to a search must be provided voluntarily under the totality of the circumstances. We find it particularly doubtful that the Court, while relying upon the seminal Schneckloth decision in discussing the necessity of voluntariness, would sweep away decades of jurisprudence by implication only, and would alter dramatically the mechanics of the consent exception without explicitly so declaring.
In a future case, Birchfield may impact the constitutional validity of certain provisions of Pennsylvania‘s implied consent scheme. But the instant case presents no facial constitutional challenge to any statutory provision. Accordingly, we do not today consider the effect of the Birchfield decision upon our statutes. Rather, we consider Birchfield only as it relates to our conclusion that, in the absence of actual, voluntary consent, statutorily implied consent does not dispense with the need for police to obtain a warrant before conducting a chemical test of a DUI arrestee‘s blood.
In light of the foregoing, we conclude that the language of
Consistent with our understanding of the statute in O‘Connell, 555 A.2d at 877, we conclude that a DUI arrestee must be provided with an opportunity to make a
D. Myers did not provide voluntary consent to the blood draw.
It is undisputed that Myers was under arrest for suspicion of DUI when he was transported to the hospital. As an arrestee, Myers possessed an express statutory right to refuse chemical testing. See
III. Conclusion
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. Furthermore, the Common-
The order of the Superior Court is affirmed.
Justices Donohue and Dougherty join the opinion.
Chief Justice Saylor files a concurring opinion in which Justice Baer joins in full and in which Justice Donohue joins Part II.
Justice Todd joins Parts I, II(A), II(B), II(D) and the mandate of the opinion and files a concurring opinion.
Justice Mundy files a dissenting opinion.
CHIEF JUSTICE SAYLOR, Concurring
I agree with the affirmance of the Superior Court but on materially different grounds.
I.
As concerns the issue of statutory construction, my view of Section 1547 of the Vehicle Code, see
To Justice Mundy‘s well-reasoned statutory analysis, I would merely add that, as relates to the notion of voluntary consent, although there may be contrary views from the appellate courts of other jurisdictions, see Lead Opinion, at 1175 (citing Williams v. State, 771 S.E.2d 373, 377 (Ga. 2015)), it seems to me that the voluntary act of operating a vehicle suffices to establish the initial consent to chemical testing. See
II.
As pertains to the constitutional aspect, I believe that Birchfield applies and requires suppression in this case.2 See Birchfield, 136 S.Ct. at 2185-86 (“It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.... [M]otorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.“).3
I realize that Birchfield‘s application to situations involving unconscious motorists is not straightforward, given that criminal penalties attaching to a refusal may be viewed as of no import in a circumstance in which a person is unconscious and incapa-ble of refusing. However, previously in its opinion, the Supreme Court had stressed its inclination in favor of a categorical rule, see Birchfield, 136 S.Ct. at 2179-80, and I find that this preference may aid in explaining the Court‘s motivation for extending its holding to a scenario as to which its dispositive rationale might not otherwise apply. See id. at 2184-85 (“It is true that a blood test ... may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.” (emphasis added)). At least one other state supreme court has expressed a similar view, observing that, although the above quote from Birchfield arose in the search-incident-to-arrest analysis, the notion also reached to the implied-consent context. See State v. Romano, 369 N.C. 678, 800 S.E.2d 644, 653-54 n.9 (2017);
Justice Baer joins in full and Justice Donohue joins Part II of this concurring opinion.
JUSTICE TODD, Concurring
I agree with the majority that, under
JUSTICE MUNDY, Dissenting
I respectfully dissent from the resolution reached by the Majority. Unlike the Majority, I conclude that Pennsylvania‘s implied consent statute authorized the warrantless blood draw in this case. Furthermore, I cannot agree that the blood draw violated Myers’ Fourth Amendment rights, even in light of the Supreme Court of the United States’ recent decision in Birchfield v. North Dakota, 579 U.S. 438, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016).
I begin with the statutory portion of the case. As the Majority correctly observes, Pennsylvania‘s implied consent statute provides, in relevant part, as follows.
§ 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth 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 if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle:
(1) in violation of
section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock)[.]
The text reveals the General Assembly‘s intent to generally deem all drivers on Pennsylvania‘s roads as having consented to blood or breath tests. See Abraham v. Shapp, 484 Pa. 573, 400 A.2d 1249, 1251 n.4 (1979) (stating, “[t]he term ‘shall’ has generally been interpreted as being man-
After careful consideration, I agree with the Commonwealth. The plain language of Section 1547(a)(1) reveals that anyone who drives on the roads of this Commonwealth has given implied consent to a blood test to measure blood alcohol content if the officer has probable cause to believe the person committed DUI.
In my view, the Superior Court‘s requirement that the officer must always give a driver an opportunity to exercise subsection (b)(1)‘s right of refusal lacks a basis in the statutory text, and frustrates the purpose of the implied consent scheme. As noted above, subsection (b)(1) gives a driver a statutory right to revoke his or her consent to the blood draw.2 Therefore, logically speaking, one who has been deemed to have given consent and does not affirmatively revoke consent has still given it.3 However, the Superior Court‘s
I recognize that the facts of this case may give some pause, as Myers was plainly unaware that his blood was being extracted from his body at the direction of the police for the purposes of prosecution. As unsettling as the facts may be, they do not justify using statutory construction to nullify a central provision of a duly enacted statute of our Legislature. Because there is no dispute that probable cause for DUI existed in this case, and Myers did not revoke his implied consent to a blood draw, I conclude the warrantless blood draw was authorized under Section 1547(a)(1).5
I next turn to the question whether the blood draw violated Myers’ Fourth Amendment rights. Because Birchfield did
In McNeely, the Supreme Court explained that, because a blood draw was unquestionably a search within the meaning of the Fourth Amendment, a warrant was generally required, unless one of the exceptions to the warrant requirement applied. Id. at 1558. One such exception was searches based on exigent circumstances, “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.” Id. (quoting Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011)). Missouri sought a per se rule that the natural dissipation of alcohol from the bloodstream was always an exigent circumstance, such that there was never a need to get a warrant for a blood draw in DUI cases. Id. at 1560. The Court rejected Missouri‘s per se exigency argument, instead concluding that whether exigent circumstances exist in DUI cases must be determined in each individual case, based on the totality of the circumstances. Id. at 1559.
Both Myers and the Superior Court overstate the import of McNeely. It has been the law since 1966 that a blood draw is a search within the meaning of the Fourth Amendment, and the Commonwealth does not argue to the contrary. See generally Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The only import of McNeely is that it rejected Missouri‘s request for a per se rule that the natural dissipation of alcohol in the bloodstream is always an exigent circumstance. McNeely did not break any new ground, much less void implied consent statutes. To the contrary, McNeely noted, with seeming approval, that all 50 states have adopted some form of an implied consent statute. McNeely, 133 S.Ct. at 1566. The Superior Court‘s remaining pronouncements appear to be tied to its conclusion that because Myers did not have a chance to exercise his statutory right of refusal, a warrant was required. See Myers, 118 A.3d at 1130 (stating, “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, we conclude McNeely controls here[ ]“). As I have explained, the implied consent statute authorized the blood draw in this case. Therefore, McNeely does not resolve the case before us.
I next address the parties’ arguments as to whether Birchfield controls this case. Birchfield addressed three unrelated cases involving defendants Birchfield, Bernard,
Nevertheless, a strict application of Birchfield would lead to a peculiar result in this specific case. Birchfield stands for nothing more than the proposition that if a conscious driver refuses a blood draw, that driver cannot be subjected to criminal punishment for his or her refusal. Id. Birchfield does not inform this Court how Pennsylvania‘s implied consent scheme should be construed, nor does it dictate how Section 1547 should be applied to an unconscious driver.9
All parties agree that Myers was unconscious the entire time Officer Domenic was in his hospital room. See N.T., 5/21/13, at 25. Therefore, because an unconscious person cannot be aware of any consequences of a refusal to consent to chemical testing, Myers “could not rescind his consent.” Commonwealth‘s Brief at 18. Moreover, the Commonwealth concedes that “because [Myers] was unconscious ... he was not—and could not be—subject to any penalty for refusal” if he were to be convicted of DUI in this case. Commonwealth‘s Reply Brief at 7. As a result, due to Myers’ unconscious state and the Commonwealth‘s
In sum, I conclude that the Superior Court wrongly concluded that Section 1547 did not authorize the warrantless blood draw in this case. I reject the Superior Court‘s reading of Section 1547 as requiring affirmative consent by the driver in each and every case. As a state law matter, I would hold the implied consent statute permits chemical testing without a warrant based on probable cause for DUI, regardless of whether the driver, through no fault of the police, has no opportunity to exercise his or her right of refusal. This construction gives meaning to both subsection (a)(1) and (b)(1). Therefore, Section 1547(a)(1) authorized the blood draw in this case. Moreover, I further conclude the statute‘s application did not violate Myers’ Fourth Amendment rights. Accordingly, I respectfully dissent and would reverse the order of the Superior Court.
Arredondo, 199 Cal.Rptr.3d at 577-78. As the Arredondo court cautioned, to interpret the implied consent statute such that the voluntariness of one‘s consent to a chemical test is predetermined is to imbue the legislature with the power to curtail substantially the essential protections of the Fourth Amendment.It is far from implausible, for example, that a legislative body—state or federal—might decree, in the name of public safety or national security, that the use of the mails, or the phone lines, or the Internet—all of which rely to a greater or lesser extent on publicly owned property or facilities or publicly provided services—constitutes consent to search the contents of all communications thus conducted. Consent to search homes might be “deemed” to be given by anyone taking advantage of various publicly provided or subsidized privileges—like use of public utilities, libraries, or schools. Consent to search the person might be “deemed” to be given by use of a public sidewalk or occupancy of a public place.