*1 pre- and that require, analysis will majority’s what I dissent cisely why reasons, Dissent. respectfully I foregoing
For the
576 A.2d Pennsylvania COMMONWEALTH of KOHL, Appellant. Bruce A. Pennsylvania.
Superior Court of Argued 1989. Oct.
Filed June 1990. Appeal Granted Petition for Allowance Nov. *2 Brunnabend, Allentown, for appellant.
Michael Allentown, Tomsko, for Dist. Atty., Asst. Richard R. Com., appellee. Gen., Harrisburg, Atty. inter- Seiverling, Deputy B.
Mary venor. *3 CAVANAUGH, CIRILLO, Judge, and
Before President SOLE, BROSKY, OLSZEWSKI, MONTEMURO, DEL JOHNSON, TAMILIA, KELLY and JJ.
MONTEMURO, Judge: Kohl, Bruce was by appellant, trial Following jury, a by while under convicted of two counts of homicide vehicle vehicle,2 alcohol,1 of by counts homicide the influence of two the of driving counts while under influence alcohol two of substance,3 the offenses of summary or controlled and a unsafe driving4 speed.5 and vehicle at reckless post-trial trial denied motions and appellant’s court mandatory minimum sentence of appellant sentenced the (7) (3) a of less three to maximum seven years not than counts, a a and fine and imposed on the four homicide years (30) nor thirty less more than days sentence not than 1. 75 Pa.C.S.A. 3735. §
2. 3732. § Pa.C.S.A. 3731(a)(1) (4).
3. 75 Pa.C.S.A. §
4. 75 Pa.C.S.A. 3714. §
5. 75 Pa.C.S.A. § (12) months on the summary offenses. Following
twelve Sentence, denial of Motion Modify his appellant brought appeal. this timely appeal, appellant On challenges the constitutionality of blood alcohol test performed sample of his blood under the implied the authority law, 1547(a).6 consent 75 Pa.C.S.A. findWe the invalid, constitutionally blood was and remand and reverse for a new trial.
Appellant’s convictions stem from a one-car collision at which occurred four morn- approximately o’clock ing on March 1985. While proceeding sharp around a road, bend car appellant’s struck a utility pole wall, a nearby retaining causing then the death of his two passengers, Jeffrey Greb and Mark Moser. The arrived shortly accident, at the scene after the in time to remove appellant and two passengers from the car before the burst into car flames. Jeffrey Greb died at the accident, scene and Mark Moser died being while transported the hospital.
Appellant, rendered accident, unconscious taken from the scene hospital. accident to the He remained unconscious throughout When day. appellant was brought the hospital, into the emergency room or- doctor dered a blood test of for basic A blood work. police officer went from the scene of the accident to the hospital. When he arrived at the hospital, the officer requested sample that a be taken from appellant for analysis as to alcohol content. The police officers investi- gating the accident did not smell alcohol on appellant’s *4 or any signs breath notice other of alcohol consumption by appellant.
A hospital performed technician a blood alcohol analysis on the sample taken for medical reasons and on sample the drawn of by request police the officer. analysis The on the requested by test the police produced a blood alcohol level of There were no results the analysis performed 0.15%. of sample on the purposes. drawn for medical At the time the (Purdon 1547(a). 1984). § 6. 75 Pa.C.S.A. his no had been filed body, charges from was drawn
blood arrest, not and the under appellant was against appellant, Appellant test. have to conduct the did not a warrant police hospital April from on upon his release the arrested motion, suppress the appellant In moved pretrial his on the test violated the blood test the basis that results of in the police lacked rights his constitutional not consent to the appellant the test and did cause to order suppress, finding motion The trial court denied the test. case, probable facts of this cause to that on the basis of the trial Following search exist. his and convic- order the did motions, tion, which were denied post-verdict filed appellant the trial court. by erred in appellant claims that the trial court appeal,
On performed the alcohol test on admitting the results of blood his the Fourth of blood because test violated sample We agree. Amendment. performed was autho- blood alcohol in consent law” set forth 75 Pa.C.S.A. “implied
rized 1547(a): § testing to determine amount of alco- 1547. Chemical
hol or substance controlled
(a) drives, rule.—Any operates who or person General a physical actual control of movement of motor to have vehicle in this shall be deemed Commonwealth breath, or tests of given consent to one more chemical determining urine the alcohol- purpose blood or for the presence ic or the of a controlled sub- content grounds to stance if a officer has reasonable be- person driving, operating lieve to have or in been of motor actual control of the movement ve- physical hicle:
(1) under the influence of alcohol or a controlled while both; or or substance
(2) in an which was involved accident which or involved operator passenger vehicle *5 78
pedestrian required treatment at medical facility or was killed. 1547(a).
75 Pa.C.S.A. § The Fourth Amendment to the United States Constitution provides right people be secure in their “[t]he persons seizures, against ... unreasonable searches and violated, issue, shall not and no shall be Warrants but upon probable cause ...”7
The administration
a blood alcohol test is a search
protection
falling within the
of the Fourth Amendment.
Railway
Association,
Skinner v.
Labor Executives’
602,
1402, 1412,
U.S.
(1989),
109 S.Ct.
The Fourth Amendment applies only to searches seizures effected or agents. Government its Cieri, 346 Pa.Super. 499 A.2d Jacobsen, 320-21 quoting United States 466 U.S. (1985) (citations omitted). S.Ct. L.Ed.2d 85 Here, appellant’s blood was drawn and tested for alcohol content technicians by hospital request at the of the police officer. The hospital personnel agents acted as See Common test. administering Commonwealth Cieri, supra, wealth v. 346 Pa.Superior Ct. at 499 A.2d (where at 321 private hospital nurse withdrew defendant’s blood according to routine hospital procedure, and later forwarded sample test, for alcohol nurse 7. U.S. IV. CONST. amend. protection against Constitutional unreasonable searches and sei- I, provided Pennsylvania zures is also in article section 8 of the Constitution: houses, people persons, papers be secure in shall their seizures, possessions from unreasonable searches and and no war- place any person things rant to search or to seize shall issue be, describing nearly them may without as as nor without cause ... CONST, I, PA. art. 8.§ *6 “agent” acted as an “instrument” or government). the Thus, the blood alcohol test performed on appellant’s blood sample must meet the test of reasonableness under the Fourth Amendment.
I. ADMISSIBILITY OF THE BLOOD ALCOHOL 1547(a)(1)
TEST UNDER §
This Court has previously upheld the constitutional
of a
validity
warrantless
search
under
conducted
1547(a)(1),interpreting the requirement that the officer
§
have “reasonable grounds” to believe that the driver was
driving under the influence as requiring that
the officer
“probable
have
cause” to believe that the driver
under
was
Quarles,
Commonwealth v.
the influence.
Pa.Super.
229
363, 388,
452,
(1974).
324 A.2d
See also Common
466
Smith,
wealth v.
288,
185,
382 Pa.Super.
555 A.2d
Cieri,
(1989);
Commonwealth v.
supra
87,
Pa.Super. at
The police knew that a serious one-car accident at 4:00 A.M. had causing occurred the death of two men and serious injury a third. Defendant was found uncon- pinned scious and behind the steering wheel of his car. They believed that the defendant had operated his vehicle at an speed excessive rate of due to the excessive damage to the car on a bridge roadway posted speed with limits m.p.h. of 35 The pavement was dry, visibility kind that no
clear and there were obstructions The accident scene driving. the defendant’s inhibit would attempts marks or to steer vehicle contained no brake and cement wall where the telephone pole from the away came to rest. finally car Opinion at
Suppression Court
requisite prob-
facts establish
disagree that these
We
while under
that
able cause
believe
from those
markedly
This case is
different
the influence.
that the
cause
probable
this Court has held
cases which
Common-
1547(a)(1)
In
had been met.
requirement of §
Smith,
at
555 A.2d at
supra,
wealth v.
officer had
this Court held
*7
driving
had
under the
the defendant
been
cause
believe
of alcohol
of alcohol where the defendant smelled
influence
and the accident consisted
glassy,
eyes,
and had
bloodshot
Common-
at least once.
In
rolling
of defendant’s car
over
(1988),
345,
A.2d 1086
Hipp,
wealth v.
Pa.Super.
380
551
probable
officer had
cause to believe
police
Court found the
appel-
under the influence where
driving
had been
appellant
slurred,
bloodshot,
and he
speech
lant’s
were
his
was
eyes
Common-
In
odor of alcohol on his breath.
strong
had a
(1987),
1,
A.2d 394
Haynos,
wealth v.
Pa.Super.
denied,
(1987),
Significantly, each of these cases there was some indicia alcohol or drug consumption by the defendant before the police requested a blood or breathalyzer test. Here, neither the officer nor the hospital personnel detected any signs of consumption alcohol by appellant. There was no odor of alcohol on appellant, there was no evidence of cups bottles or that may alcohol, have contained and no one observed appellant driving Based erratically. upon these facts and the facts supporting finding of probable cause above, the cases cited we hold that the did not have probable cause to believe under the influence. In the absence of evidence of alcohol or use, drug the occurrence of a one-car accident during the *8 early morning clear, hours of a in dry day an area with a low accident incidence rate is not a sufficient factual basis to support belief that the driver was under the influence of alcohol.
Because the police did not probable have cause to believe that appellant was under the alcohol, influence of we hold that the blood test was not 1547(a)(1) valid under § of the implied consent law.
II. ADMISSIBILITY OF THE BLOOD ALCOHOL 1547(a)(2)
TEST UNDER § The trial court found that the blood test was also 1547(a)(2), valid under because appellant had § been the in resulting in an accident involved of a vehicle operator at a treatment required which injury bodily and death conditions Undoubtedly, facility. medical 1547(a)(2) as challenges Appellant 1547(a)(2) met. § were § Amendment. the Fourth under unconstitutional Common case, this to companion in the opinion In our (1990) 1, 576 A.2d Danforth, v. wealth on the administered a banc), held that blood (en we federal and 1547(a)(2) an individual’s violates basis § searches and unreasonable against right state constitutional in set forth the conditions reasoned that seizures. We that cause believe 1547(a)(2) probable not establish do § under in the accident was involved of the vehicle the driver and, substance, or a controlled of alcohol the influence 1547(a)(2) is constitutional therefore, by test authorized § on performed the test Hence, find that we ly invalid. 1547(a)(2).8 under not valid § appel- performed alcohol test hold that We unreasonable right against his constitutional lant violated been results should not have and seizures. searches trial. See Commonwealth him at against admitted Dissenting Judge Kelly by in his disagree cited that the cases 8. We 1547(a)(2) is unconstitu- support § conclusion that Opinion of his involve question, those cases dispositive of the because tional are automobiles, stops check of drivers to inventory random searches of vehicle, police registration and the driver’s license long types have been checkpoints. of searches These roadblocks recognized sions,” magnitude compared to other intru- being "limited in as 1391, 1400, 648, 661, Prouse, S.Ct. 440 U.S. Delaware v. see thus, analysis in the (1979); set forth we find that 59 L.Ed.2d cases authorized ality Kelly's blood, and urine tests readily applicable breath is not Moreover, disagree 1547(a). the constitution- we by Judge appropriately resolved test in this case of the blood exigency”test. suspicion/medical newly developed "reasonable I, has cause part supra, if a officer As discussed believe that influence, the driving under the has been the motorist blood, pursuant or urine test may lawfully breath administer officer Further, may 1547(a)(1). lead to that a search the fact to section justification for never been a exculpatory” evidence has "potentially making every test, were the then valid. If that search an unconstitutional has constitutionally search valid because would be search has been commit- dispelling suspicions that a crime potential the ted. for
83 Williams, 227, 313, (1988).9 Pa.Super. 551 A.2d We of sentence and remand for a new judgment vacate trial. relinquished. and remanded. Jurisdiction is
Vacated CIRILLO, CAVANAUGH, P.J., DEL SOLE JOHNSON, JJ., join.
OLSZEWSKI, J., concurring opinion. files a TAMILIA, J., dissenting opinion files a joined by BROSKY, J.
KELLY, J., dissenting opinion. files a OLSZEWSKI, Judge, concurring.
I the decision agree by with reached how- majority; ever, I separately emphasize scope write the limited our decision.
The decision by compelled reached majority by long-standing precedent. Taking samples constitutes a search and seizure. Schmerber v. California, U.S. 1826, (1966). S.Ct. L.Ed.2d 908 to the Contrary implication 1547(a), of 75 Pa.C.S.A. drivers cannot be § “deemed” to consent to warrantless searches and seizures as a condition driving. Com- right on the privilege Quarles, monwealth v. Pa.Super. 324 A.2d (1974). 460-462 The blood test must fall under recog- some nized exception to the warrant Id. requirement.
Ordinarily, justified grounds blood tests are of proba- 1547(a)(1); ble cause. 75 Pa.C.S.A.
Quarles, (1974) A.2d 460-462 (holding that blood tests are constitutional where there is cause). case, In present the blood test was solely severity accident, based on the applying 75 (1) Appellant allowing also contends that the trial court erred in vehicle; pathologist testify objection (2) speed over to the of his mandatory sentencing provision for the crime of homicide vehicle while under the influence of alcohol is unconstitutional. claim, disposition appellant’s suppression Because of our we need not address these issues. *10 84 1547(a)(2). accident, Severity
Pa.C.S.A. of the standing § alone, grounds is not sufficient to justify a warrantless test; 1547(a)(2) accordingly, blood Pa.C.S.A. uncon- § stitutional.
Where, here, as the reason for the only blood test is the accident, severity illegal blood test is an search and seizure. If police the officer in this case had noticed intoxication, signs alcohol, of such odor as an of bloodshot lack of eyes, speech, coordination slurred 1547(1). See, would have been authorized Pa.C.S.A. § Commonwealth v. e.g., Haynos, Pa.Super. 525 A.2d Pelkey, (1985) A.2d 414 (probable cause based existence of an accident of breath). and odor alcohol on the driver’s our decision Consequently, only affects those cases in which the officer requesting blood test has no reason to suspect intoxication.
TAMILIA, Judge, dissenting. The majority Opinion vacates the judgment of sentence and remands the case for a by holding new trial that performed blood alcohol test on appellant violated his rights pursuant constitutional to the fourth amendment of I, the United States Constitution and Article section the Pennsylvania I respectfully Constitution. dissent and 1) Implied Statute, would hold that Consent 75 Pa.C.S. 1547(a)(2), clearly creates a constitutionally permissible basis for a search upon special based need in the exercise of governmental interest; 2) the admission of testimony from a pathologist as to the probable speed of the vehicle error, not 3) reversible sentencing mandatory provisions the drunk laws are constitutional and 4) they do apply person years over 18 and under 21 years would, of age. therefore, I judgment affirm the of sen- tence of the trial court.
The facts of this case be may briefly stated as follows. Kohl, Bruce who was 18 years age at the time, was involved in a one-car accident on March approximately at 4:00 a.m. Appellant’s vehicle struck a pole retaining then hit a wall. When arrived at scene, found they appellant unconscious behind the wheel of the car which contained two other passengers. The three occupants were removed from the car shortly before it burst into flames. passenger One was dead at the scene, the other died in an ambulance en route to the hospital. Appellant was taken to the hospital by Medi-vac and remained throughout unconscious the following day. time, During police, following investigation of the *11 scene, accident to hospital went and requested that a blood sample be taken from defendant for analysis as to alcohol A content. second sample had been by ordered doctor, emergency room but it does not enter into the consideration here. Between 23rd, March 30th and April appellant was unavailable for questioning, despite several attempts police, as he hospitalized and doctors would permit not questioning. Arrest warrants were is- sued on April 1985 based on laboratory findings that appellant’s blood alcohol content was .15 per cent. 23, 1985, April
On police were informed could be questioned and, upon him contacting in his hospital room him informing of his rights, defendant declined to answer any questions by the officer.
Subsequently, motion was made to suppress the blood tests the ground infringement of his constitutional rights. Appellant moved quash to indictments and to dis charge all charges pending against him. The motions to quash and discharge were denied and proceeded the case a trial by jury, following which appellant was convicted of two counts each of vehicle,1 homicide by homicide by vehicle while under the influence of alcohol2 and driving under the influence.3 For the vehicular homicide driving while under convictions, the influence appellant was sentenced to three to seven years imprisonment count, on each to run concur- 1. 75 Pa.C.S. § 3732.
2. 75 Pa.C.S. § 3735.
3. 75 Pa.C.S. § 3731. influence, For under the he
rently. was fined $300 and sentenced to 30 days imprisonment, months consecutive to the homicide sentences. case,
In
this
deciding
majority
relies on the rationale
Commonwealth v. Dan
and conclusions it
developed
forth,
The trial court found that either under 75 P.S. 1547(a)(1) 1547(a)(2), or section there was probable cause test, implied obtain a blood consent to do so. The trial court does not discuss the issue of further constitutionality relies on the findings by suppression but judge. The suppression judge found likewise that the facts in this case satisfied the grounds reasonable requirement of section 1547(a)(1). In suppression both the and trial Opinions, the *12 relied on the judges facts that this was a single serious a.m., vehicle accident at 4:00 causing the death of two men and serious to injury a third. Police appellant believed had operated his at vehicle an excessive rate of speed, due to damage car, to the on roadway posted for 35 per miles hour. The roadway dry, visibility was clear and without obstruction to driving. inhibit defendant’s There was no braking evidence of or skid marks. Police could not com- municate with defendant due to condition, his unconscious and the automobile was consumed flames by almost immedi- ately after occupants. removal three 1547(a)(2),
As to section
suppression
court properly
strong
accorded a
presumption
constitutionality
law-
Martin v. Unemployment Com-
fully
legislation.
enacted
pensation
Board
Review 502 Pa.
282,
87 (1983), 952, 2156, 466 104 cert. denied U.S. S.Ct. 80 L.Ed.2d (1984). 541 despite
While the trial court found that lack of evidence from ingestion signs of alcohol odors or exhibited physical appellant, there other by was evidence from the circum surrounding stances the accident give rise to a reason cause) intoxicated, belief (probable able that the driver was permitting prearrest testing pursuant Quarles, 363, Commonwealth v. 229 Pa.Super. 324 A.2d (1974); Cieri, 452 Commonwealth v. 499 Pa.Super. (1985), A.2d 317 and Commonwealth v. 349 Pa.Su Pelkey, per. (1985). However, A.2d in each of those cases, the odor of alcohol was detected on drivers not Here, involved in serious accidents. appellant was seriously injured and his passengers two killed but no odor of alcohol was detected nor was there present any other behavior or giving observations rise to a reasonable of alcohol belief ingestion. 1547(a)(1) Thus reliance on section does not address the case;2 issue of framed this constitutionality by nor does Smith, (1989), A.2d 185 which has facts similar to those in this case except that the odor of alcohol detected and the consti tutional issue present. was not
All relevant preliminary issues raised
by
implied
provision
1547(a)(2)
consent
in section
have been resolved Association,
Skinner
Labor
Railway
Executives’
U.S.
S.Ct.
passenger pedestrian of vehicle required involved or a treat- facility ment at a medical or was killed. J., dissenting). (1990) (Tamilia, 1, 576 A.2d Super. regulation, a to consider whether refused While Skinner persons need to protect governmental special fulfilling a railroad, requir- of operations in the and death injury from an accident in the event of testing urine blood, or ing breath if such death, constitutional or resulting injury I to see how fail prosecution, in criminal used results were case, more than This far denied. result could be such a section necessity illustrates absolute Danforth, manner, limited which, and very in its narrow 1547(a)(2), To hold testing. for legal basis necessary provides egre- the most serious permit to would be otherwise prevent, cases, designed the statute was which gious to conduct inability police because go undetected and this preliminary evaluation. cursory even a Danforth drug detecting possible problem additional case raise the observed, the odor of since cannot be use when behavior observa-' and the behavioral is not detectable drugs most other with may compatible or be possible, are not tions treatment. emergency to the accident factors related must be badly injured they or so are dead persons When state, in an unconscious hospital to a forthwith transported detect odors of to observe behavior opportunity the usual lives The first is to save duty not simply present. alcohol ample facts, whereas, ordinary stop, in an DUI under the testing. cause for probable exists to establish opportunity relatively conditions are that when requires The statute must exist to reasonable cause stop, in the usual normal this is informs us that experience testing. Common require drug use of alcohol or as the indicators sufficient usually officer. such as a trained observer are detectable four- under the this is sufficient As Skinner explained, a test without go forward with teenth amendment situation, when and difficult In the more serious warrant. occurs, the or death medical treatment requiring an injury prob- attempts to establish require preliminary not law does Un- cause, paramount. and care become as treatment able not essential circumstances, cause is der those great impor- such placed has the Commonwealth because *14 on detecting preventing tance the most serious conse- intoxicated, quence driving grant- while as a condition of (or ing privilege right) drive, to implied consent substi- tutes for reasonable belief. For this to Court hold other- wise creates a in huge gap effective deterrence and prose- cution of the worst involving driving cases while under the influence. There are no means to special deal with this governmental need to reduce the enormous cost life and property resulting from under the influence other than the implied 1547(a)(2). consent law detailed in section (Tamilia, J., Danforth, supra See dissenting).
As to the remaining issues that the pathologist was erroneously permitted testify as to the speed of the automobile, and the mandatory sentencing provision is un- constitutional, both are without merit. first, Mihalakis,
As to the Dr. a forensic pathologist, was interrogated extensively direct and cross-examination as qualifications. to his Following interrogation, the trial him judge found qualified testify as to the speed vehicle. that, 1963,
Dr. Mihalakis testified
since
he has
privy
been
to 30 to 50 cases of vehicular deaths
year
each
and that
testified,
he previously
on at least six occasions in Penn-
courts,
sylvania
on the
speed
vehicles
based
injuries sustained by passengers. Defense counsel was
afforded wide latitude to address his concerns to the jury
so,
and having done
it was properly within the jury’s
discretion
accept
reject
opinion.
doctor’s
Expert
is
testimony
admissible when it is
offered
a witness
with any
pretension
reasonable
to specialized knowledge
on the subject
investigation.
under
See Kravinsky v.
Glover,
263 Pa.Super.
(1979),
As to the validity of the mandatory sentencing provisions, their constitutionality beyond dispute. The appellant unsupported
makes an
bald statement
the laws are
However,
brief,
in his
ac-
unconstitutional.
knowledges the DUI law was held to be constitutional in
(1985),
v.
508 Pa.
Joined J.
KELLY, Judge, dissenting.
I agree, on different grounds, that 75 Pa.C.S.A. 1547(a)(2), find, however, is unconstitutional. I that rea- § suspicion sonable existed to justify blood Hence, instant I case. dissent and would affirm judgment of sentence.
I. Constitutionality 1547(c) 75 Pa.C.S.A. § enacted, As the current implied consent statute leaves discretion to the in the to deter- unfettered officer field mine whether or not to invoke implied request consent and that a conscious driver to the submit blood test or direct that the performed test be on an unconscious 75 driver. 1547(a)(2). Pa.C.S.A. While driver who falls within every triggering language consent, of the statute is deemed to
91
all
that
deemed to consent be
requirement
is no
there
Rather,
pick
in the
and choose
may
the officer
field
tested.
ad
hoc
entirely
test on an
basis.
absence
which to
on the officer’s discretion as to which
sufficient
restrictions
to a
requested
drivers are to be
to submit
blood
conscious
or which unconscious
test,
subjected
drivers are to be
to the
test,
consent
unconstitu
implied
provision
blood
renders the
tional,
provision
if
or test”
mandatory
“request
even
applicable to all such drivers could
pass constitutional
—
Wells,
1632,
Florida v.
U.S. -,
110 S.Ct.
muster
Cf.
Prouse, Delaware v.
(1990);
L.Ed.2d 1
U.S.
Tar
(1979);
59 L.Ed.2d
S.Ct.
bert,
v.
Commonwealth
(1987);
A.2d 1035
517 Pa.
Commonwealth
Swanger,
(1973);
A.2d
453 Pa.
Leninsky,
(1986). Hence,
I do not find it
here to determine
the ratio
necessary
“special
preserve
nale of
need” to
evanescent
evi
highly
dence of blood alcohol content at the time of a serious train
accident via
warrantless,
suspicionless
testing
*16
prosecution,
train crews for non-criminal
regulatory
pur
Assn.,
Railway
Skinner v.
Labor Executive
in
poses
U.S. -,
109 S.Ct.
II. Presence Reasonable Suspicion I find in suspicion that reasonable existed this case to appellant believe that was intoxicated at the time of the accident. I presented, Given circumstances find that test, suspicion justify reasonable was sufficient the blood and to render reasonable. constitutionally
At approximately 30, 1985, 4:00 a.m. on Saturday, March Jeffrey Greb and Mark Moser were passengers a car by appellant, driven Bruce A. Kohl. Though pavement clear, dry was and was visibility negotiate the car failed to turn, struck a telephone pole, and then an embankment.
Police arrived at the scene moments later. They pulled appellant steering from behind the wheel and removed his passengers shortly before the demolished vehicle burst into flames. Jeffrey pronounced scene; Greb was dead at the en route Mark Moser died to the hospital. Appellant, who unconscious, was transported was to the hospital by medi- vac helicopter. police at the scene had no opportunity question appellant examine for signs intoxication at the scene. After had evacuated, been the investi- continued, gation at the scene and revealed several critical facts. The pavement dry clear, and visibility was car had travelling high been at a rate of speed, and the brakes were not applied prior to impact.
I find that a suspicion reasonable of possible intoxication is a car carrying raised when three young men at 4:00 a.m. on a Saturday morning fails to negotiate a curve at a high speed, rate of telephone and a is pole struck without the having brakes applied, been despite dry pavement and clear While other visibility. less burdensome might alternatives be more appropriate to confirm or dispel such reasonable suspicions when the driver is conscious cooperative, I have no difficulty affirming a request for a minimally intrusive blood test under the presented circumstances as here.1 there
When
suspicion
reasonable
believe motorist
has driven
being intoxicated,
while
are
fully
motorist,
authorized to detain the
question
motorist,
*17
1. Evidence in this
practice
case indicated that it is standard medical
conduct
patients.
blood alcohol tests on auto accident trauma
In this
case,
already
a blood alcohol
by appellant's
test had
been ordered
treating physician
request
when the officer’s
was made. Blood alco-
generally
minimally
hol tests
are
suspect
intrusive. When the
is a
patient subject to the
purposes,
same test for medical
the disclosure of
test,
purpose
the results of a
drawing
dual
or the
of two vials of blood
testing,
for
is even less intrusive.
walking
tasks like
a
performance
simple
the
request
line,
up change
focusing
moving pen, picking
on a
straight
one-foot,
Ber-
reciting
alphabet.
standing
while
104 S.Ct.
82 L.Ed.2d
468 U.S.
McCarty,
kemer v.
detained motorist
(1984)
suspicion,
reasonable
(upon
test);
v.
balancing
South Dakota
perform
requested
(1983)
553, 103
confirm or of the blood alcohol content at highly evanescent evidence accident, time of the when lawful alternatives are medical emer- precluded by exigency suspect’s *18 gency. that, It should not forgotten be in the circum- here, presented stances such evidence may acquit one whom circumstances might otherwise convict by preserving poten- tially exculpatory evidence an unconscious driver which cannot act on his or her own behalf to preserve.
Hence, I dissent.
Superior Pennsylvania. Court of
Argued Jan. 1990. Filed June