Commonwealth v. KohlCommonwealth v. Kohl
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- Before:
- Cirillo
Lead Opinion
Following a trial by jury, appellant, Bruce Kohl, was convicted of two counts of homicide by vehicle while under the influence of alcohol,1 two counts of homicide by vehicle,2 two counts of driving while under the influence of alcohol or controlled substance,3 and the summary offenses of reckless driving4 and driving a vehicle at unsafe speed.5 The trial court denied appellant’s post-trial motions and sentenced appellant to the mandatory minimum sentence of not less than three (3) years to a maximum of seven (7) years on the four homicide counts, and imposed a fine and a sentence of not less than thirty (30) days nor more than *76twelve (12) months on the summary offenses. Following denial of his Motion to Modify Sentence, appellant brought this timely appeal. On appeal, appellant challenges the constitutionality of a blood alcohol test performed on a sample of his blood under the authority of the implied consent law,
Appellant’s convictions stem from a one-car collision which occurred at approximately four o’clock in the morning on March 30, 1985. While proceeding around a sharp bend in the road, appellant’s car struck a utility pole and then a nearby retaining wall, causing the death of his two passengers, Jeffrey Greb and Mark Moser. The police arrived at the scene shortly after the accident, in time to remove appellant and the two passengers from the car before the car burst into flames. Jeffrey Greb died at the scene of the accident, and Mark Moser died while being transported to the hospital.
Appellant, rendered unconscious by the accident, was taken from the accident scene to the hospital. He remained unconscious throughout the day. When appellant was brought into the hospital, the emergency room doctor ordered a blood test of appellant for basic blood work. A police officer went from the scene of the accident to the hospital. When he arrived at the hospital, the officer requested that a blood sample be taken from appellant for analysis as to alcohol content. The police officers investigating the accident did not smell alcohol on appellant’s breath or notice any other signs of alcohol consumption by appellant.
A hospital technician performed a blood alcohol analysis on the sample taken for medical reasons and on the sample drawn by request of the police officer. The analysis on the test requested by the police produced a blood alcohol level of 0.15%. There were no results of the analysis performed on the sample drawn for medical purposes. At the time the *77blood was drawn from his body, no charges had been filed against appellant, appellant was not under arrest, and the police did not have a warrant to conduct the test. Appellant was arrested upon his release from the hospital on April 29, 1985.
In his pretrial motion, appellant moved to suppress the results of the blood test on the basis that the test violated his constitutional rights in that the police lacked probable cause to order the test and appellant did not consent to the test. The trial court denied the motion to suppress, finding that on the basis of the facts of this case, probable cause to order the search did exist. Following his trial and conviction, appellant filed post-verdict motions, which were denied by the trial court.
On appeal, appellant claims that the trial court erred in admitting the results of the blood alcohol test performed on the sample of his blood because the test violated the Fourth Amendment. We agree.
The blood alcohol test performed on appellant was authorized by the “implied consent law” set forth in
§ 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 motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both; or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a *78pedestrian required treatment at a medical facility or was killed.
The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...”7
The administration of a blood alcohol test is a search falling within the protection of the Fourth Amendment. Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 1412, 103 L.Ed.2d 639 (1989), citing Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908 (1966), Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985).
The Fourth Amendment applies only to searches and seizures effected by the Government or its agents. Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317, 320-21 (1985), quoting United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1985) (citations omitted). Here, appellant’s blood was drawn and tested for alcohol content by hospital technicians at the request of the police officer. The hospital personnel acted as agents of the Commonwealth in administering the test. See Commonwealth v. Cieri, supra, 346 Pa.Superior Ct. at 85, 499 A.2d at 321 (where private hospital nurse withdrew defendant’s blood according to routine hospital procedure, and later forwarded sample to police for blood alcohol test, nurse *79acted as an “instrument” or “agent” of the government). 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 TEST UNDER
This Court has previously upheld the constitutional validity of a warrantless search conducted under
The trial court held that the test performed on appellant’s blood sample fell within the purview of
The police knew that a serious one-car accident at 4:00 A.M. had occurred causing the death of two men and serious injury to a third. Defendant was found unconscious and pinned behind the steering wheel of his car. They believed that the defendant had operated his vehicle at an excessive rate of speed due to the excessive damage to the car on a roadway and bridge with posted speed limits of 35 m.p.h. The pavement was dry, the visibility *80clear and there were no obstructions of any kind that would inhibit the defendant’s driving. The accident scene contained no brake marks or attempts to steer the vehicle away from the telephone pole and cement wall where the car finally came to rest.
Suppression Court Opinion at 13.
We disagree that these facts establish the requisite probable cause to believe that appellant was driving while under the influence. This case is markedly different from those cases in which this Court has held that the probable cause requirement of
Significantly, in each of these cases there was some indicia of 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 alcohol consumption by appellant. There was no odor of alcohol on appellant, there was no evidence of bottles or cups that may have contained alcohol, and no one observed appellant driving erratically. Based upon these facts and the facts supporting the finding of probable cause in the cases cited above, we hold that the police did not have probable cause to believe appellant was driving under the influence. In the absence of any evidence of alcohol or drug use, the occurrence of a one-car accident during the early morning hours of a clear, dry day in an area with a low accident incidence rate is not a sufficient factual basis to support the belief that the driver was under the influence of alcohol.
Because the police did not have probable cause to believe that appellant was driving under the influence of alcohol, we hold that the blood test was not valid under
II. ADMISSIBILITY OF THE BLOOD ALCOHOL TEST UNDER
The trial court found that the blood test was also valid under
In our opinion in the companion to this case, Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990) (en banc), we held that a blood test administered on the basis of
We hold that the blood alcohol test performed on appellant violated his constitutional right against unreasonable searches and seizures. The results should not have been admitted against him at trial. See Commonwealth v. *83Williams, 380 Pa.Super. 227, 551 A.2d 313, 317 (1988).9 We vacate the judgment of sentence and remand for a new trial.
Vacated and remanded. Jurisdiction is relinquished.
CIRILLO, P.J., and CAVANAUGH, DEL SOLE and JOHNSON, JJ., join. OLSZEWSKI, J., files a concurring opinion. TAMILIA, J., files a dissenting opinion joined by BROSKY, J. KELLY, J., files a dissenting opinion.Notes
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. U.S. CONST. amend. IV.
Constitutional protection against unreasonable searches and seizures is also provided in article I, section 8 of the Pennsylvania Constitution:
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 ...
PA. CONST, art. I, § 8.
. We disagree that the cases cited by Judge Kelly in his Dissenting Opinion in support of his conclusion that
. Appellant also contends that (1) the trial court erred in allowing a pathologist to testify over objection to the speed of his vehicle; (2) the mandatory sentencing provision for the crime of homicide by vehicle while driving under the influence of alcohol is unconstitutional. Because of our disposition of appellant’s suppression claim, we need not address these issues.
Concurrence Opinion
concurring.
I agree with the decision reached by the majority; however, I write separately to emphasize the limited scope of our decision.
The decision reached by the majority is compelled by long-standing precedent. Taking blood samples constitutes a search and seizure. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Contrary to the implication of
Ordinarily, blood tests are justified on grounds of probable cause.
Where, as here, the only reason for the blood test is the severity of the accident, a blood test is an illegal search and seizure. If the police officer in this case had noticed any signs of intoxication, such as an odor of alcohol, bloodshot eyes, lack of coordination or slurred speech, the blood test would have been authorized by
Dissenting Opinion
dissenting.
The majority Opinion vacates the judgment of sentence and remands the case for a new trial by holding that the blood alcohol test performed on appellant violated his constitutional rights pursuant to the fourth amendment of the United States Constitution and Article I, section 8, of the Pennsylvania Constitution. I respectfully dissent and would hold that 1) the Implied Consent Statute,
The facts of this case may be briefly stated as follows. The appellant Bruce Kohl, who was 18 years of age at the time, was involved in a one-car accident on March 30, 1985 *85at approximately 4:00 a.m. Appellant’s vehicle struck a pole and then hit a retaining wall. When police arrived at the scene, they found 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. One passenger 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 unconscious throughout the following day. During that time, police, following investigation of the accident scene, went to the hospital and requested that a blood sample be taken from defendant for analysis as to alcohol content. A second sample had been ordered by the emergency room doctor, but it does not enter into the consideration here. Between March 30th and April 23rd, appellant was unavailable for questioning, despite several attempts by police, as he was hospitalized and doctors would not permit questioning. Arrest warrants were issued on April 29, 1985 based on laboratory findings that appellant’s blood alcohol content was .15 per cent.
On April 23, 1985, police were informed appellant could be questioned and, upon contacting him in his hospital room and informing him of his rights, defendant declined to answer any questions by the officer.
Subsequently, a motion was made to suppress the blood tests on the ground of infringement of his constitutional rights. Appellant moved to quash indictments and to discharge all charges pending against him. The motions to quash and discharge were denied and the case proceeded to a trial by jury, following which appellant was convicted of two counts each of homicide by vehicle,1 homicide by vehicle while under the influence of alcohol2 and driving under the influence.3 For the vehicular homicide while driving under the influence convictions, appellant was sentenced to three to seven years imprisonment on each count, to run concur*86rently. For driving under the influence, he was fined $300 and sentenced to 30 days to 12 months imprisonment, consecutive to the homicide sentences.
In deciding this case, the majority relies on the rationale and conclusions it developed in Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990), as the constitutionality of the implied consent law was similarly at issue there. This case, to a far greater extent than Danforth, establishes the wisdom of the legislation and the necessity for the Commonwealth to create a “special need” exception to fourteenth amendment search and seizure requirements of warrant or probable cause in order to obtain blood samples where injury requiring medical attention or death occurs in motor vehicle accidents.
The trial court found that either under
As to
While the trial court found that despite lack of evidence of alcohol ingestion from odors or physical signs exhibited by the appellant, there was other evidence from the circumstances surrounding the accident to give rise to a reasonable belief (probable cause) that the driver was intoxicated, permitting the prearrest testing of appellant pursuant to Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974); Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985), and Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985). However, in each of those cases, the odor of alcohol was detected on drivers not involved in serious accidents. Here, appellant was seriously injured and his two passengers killed but no odor of alcohol was detected nor was there present any other behavior or observations giving rise to a reasonable belief of alcohol ingestion. Thus reliance on
All relevant preliminary issues raised by the implied consent provision in
As to the remaining issues that the pathologist was erroneously permitted to testify as to the speed of the automobile, and the mandatory sentencing provision is unconstitutional, both are without merit.
As to the first, Dr. Mihalakis, a forensic pathologist, was interrogated extensively in direct and cross-examination as to his qualifications. Following the interrogation, the trial judge found him qualified to testify as to the speed of the vehicle.
Dr. Mihalakis testified that, since 1963, he has been privy to 30 to 50 cases of vehicular deaths each year and that he previously testified, on at least six occasions in Pennsylvania courts, on the speed of vehicles based on the injuries sustained by passengers. Defense counsel was afforded wide latitude to address his concerns to the jury and having done so, it was properly within the jury’s discretion to accept or reject the doctor’s opinion. Expert testimony is admissible when it is offered by a witness with any reasonable pretension to specialized knowledge on the subject under investigation. See Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979), citing Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974).
(Slip Op., Davison, J., p. 5.) I see no reason to go beyond this accurate statement of the law to affirm the court’s holding on this issue.
As to the validity of the mandatory sentencing provisions, their constitutionality is beyond dispute. The appellant *90makes an unsupported bald statement that the laws are unconstitutional. However, in his brief, the appellant acknowledges the DUI law was held to be constitutional in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), Commonwealth v. Kunselman, 363 Pa.Super. 475, 526 A.2d 443 (1987), and Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985). Since our Supreme Court has resolved this issue, appellant’s allegation of unconstitutionality must be unavailing before this Court and need not be addressed further. Neither is appellant’s plea that an 18 year old should not be subject to the driving under the influence laws, since he is not permitted to drink until he is 21 years old. This argument is specious at best. The prohibition of sale or use of alcohol to persons under 21 is in recognition that persons under 21 are more apt to be harmed or cause harm by drinking than those over 21. To permit a person to be immunized from the consequence of his illegal act, when the act and the resulting crime are both punishable, is an argument that defies reason.
I would affirm the jury convictions and judgment of sentence.
Joined by BROSKY, J..
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. Implied Consent Law, 75 Pa.C.S. 1547(a)(2):
(a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have giveen consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.
Dissenting Opinion
dissenting.
I agree, on different grounds, that
I. Constitutionality of
As enacted, the current implied consent statute leaves unfettered discretion to the officer in the field to determine whether or not to invoke implied consent and request that a conscious driver submit to the blood test or direct that the test be performed on an unconscious driver.
I do not find it necessary here to determine if the rationale of “special need” to preserve highly evanescent evidence of blood alcohol content at the time of a serious train accident via warrantless, suspicionless blood testing of train crews for non-criminal prosecution, regulatory purposes in Skinner v. Railway Labor Executive Assn., 489 U.S. -, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), could be extended to permit warrantless, suspicionless blood tests of drivers involved in serious automobile accidents, for criminal prosecution purposes. Nonetheless, in response to the majority’s broad prohibition, I note that I would be inclined to agree with Judge Tamilia that the rationale of Skinner should be extended to cover implied consent cases, provided the officer’s discretion, as to which persons (deemed to have consented) would be tested, was regulated in a rational and systematic manner.
II. Presence of Reasonable Suspicion
I find that reasonable suspicion existed in this case to believe that appellant was intoxicated at the time of the accident. Given the circumstances presented, I find that reasonable suspicion was sufficient to justify the blood test, and to render that test constitutionally reasonable.
*92At approximately 4:00 a.m. on Saturday, March 30, 1985, Jeffrey Greb and Mark Moser were passengers in a car driven by appellant, Bruce A. Kohl. Though the pavement was dry and visibility was clear, the car failed to negotiate a turn, struck a telephone pole, and then an embankment.
Police arrived at the scene moments later. They pulled appellant from behind the steering wheel and removed his passengers shortly before the demolished vehicle burst into flames. Jeffrey Greb was pronounced dead at the scene; Mark Moser died en route to the hospital. Appellant, who was unconscious, was transported to the hospital by medivac helicopter. The police at the scene had no opportunity to question or examine appellant for signs of intoxication at the scene. After appellant had been evacuated, the investigation at the scene continued, and revealed several critical facts. The pavement was dry and visibility was clear, the car had been travelling at a high rate of speed, and the brakes were not applied prior to impact.
I find that a reasonable suspicion of possible intoxication is raised when a car carrying three young men at 4:00 a.m. on a Saturday morning fails to negotiate a curve at a high rate of speed, and a telephone pole is struck without the brakes having been applied, despite dry pavement and clear visibility. While other less burdensome alternatives might be more appropriate to confirm or dispel such reasonable suspicions when the driver is conscious and cooperative, I have no difficulty in affirming a request for a minimally intrusive blood test under the circumstances as presented here.1
When there is reasonable suspicion to believe a motorist has driven while being intoxicated, the police are fully authorized to detain the motorist, question the motorist, and *93request the performance of simple tasks like walking a straight line, focusing on a moving pen, picking up change while standing on one-foot, or reciting the alphabet. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (upon reasonable suspicion, detained motorist requested to perform balancing test); South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (upon reasonable suspicion, detained motorist requested to touch his finger to his nose and to walk a straigh line). Those activities, or even simply observing the suspect’s demeanor during a brief investigation detention, provide the officer with an opportunity to look for common signs of intoxication, including odor of breath, flushed appearance, lack of muscular coordination, speech difficulties, disorderly or unusual conduct, mental or visual difficulties, sleepiness, dizziness, and nausea. See Commonwealth v. Leninsky, supra, 519 A.2d at 990 n. 6. Observation of any such symptoms in a driver involved in a serious automobile accident gives rise to probable cause, and fully justifies a constitutionally reasonable, warrantless, minimally intrusive blood test. See Commonwealth v. Haynos, 363 Pa.Super. 1, 525 A.2d 394 (1987); Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985).
When, as here, there is a serious accident and a driver/suspect is in need of prompt medical attention, the investigating officers must yield to that exigency, and fore-go investigative detention, questioning, and observation. It is the medical exigency requiring officers to forgo lawful investigative detention which I find creates a “special need” which renders a warrantless, minimally intrusive blood test based upon reasonable suspicion, constitutionally reasonable in such cases, especially when the suspect is unconscious.
The purpose of a blood test in such circumstances is to confirm or dispel suspicions of intoxication by preserving highly evanescent evidence of the blood alcohol content at the time of the accident, when lawful alternatives are precluded by the exigency of the suspect’s medical emer*94gency. It should not be forgotten that, in the circumstances presented here, such evidence may acquit one whom circumstances might otherwise convict by preserving potentially exculpatory evidence which an unconscious driver cannot act on his or her own behalf to preserve.
Hence, I dissent.
. Evidence in this case indicated that it is standard medical practice to conduct blood alcohol tests on auto accident trauma patients. In this case, a blood alcohol test had already been ordered by appellant‘s treating physician when the officer’s request was made. Blood alcohol tests generally are minimally intrusive. When the suspect is a patient subject to the same test for medical purposes, the disclosure of the results of a dual purpose test, or the drawing of two vials of blood for testing, is even less intrusive.