COMMONWEALTH of Pennsylvania, Appellant, v. Dominick Mario MOLINO.
Superior Court of Pennsylvania.
Argued Jan. 23, 1991. Filed June 26, 1991. Petition for Allowance of Appeal Granted Nov. 22, 1991.
593 A.2d 872
Nancy L. Butts, Asst. Dist. Atty., Williamsport, for Com., appellant. Anthony D. Miele, Williamsport, for appellee.
OLSZEWSKI, Judge:
This is an appeal by the Commonwealth from an order entered in the Court of Common Pleas of Lycoming County suppressing evidence, in the nature of a blood test result, obtained from appellee following his arrest for driving under the influence.1 Appellee was subsequently charged under
The trial court adequately summarized the facts of this case as follows:
The defendant was arrested by an officer of the Montoursville Police Department on the early morning of January 25, 1990. He was allegedly unruly and resisted arrest. Following the arrest he was taken to the DUI Processing Center operated at the Divine Providence Hospital under the general supervision of the County District Attorney’s Office and Chief County Detective.
The only evidence presented at the suppression hearing was a video tape of the events which transpired at the DUI Processing Center. The actors on the video tape were the defendant, two off duty police officers from the Williamsport Bureau of Police who were manning the DUI Processing Center at the time and a nurse from the Hospital who had been called for the purpose of drawing
blood. The defendant was seated and was passive in his demeanor. Officer Foust advised the defendant of the provisions of the Implied Consent Law, i.e., that he was being requested to submit to a blood test to determine the presence of alcohol in his blood; that if he refused, his motor vehicle operator’s license would be suspended for a period of one year; that any refusal would be admitted into evidence against him in a trial; and that he would be charged with driving under the influence whether he submitted to the test or not. The defendant initially did not respond to the request but after it had been repeated he eventually indicated that he would not submit to the test. The officer asked him to sign a form indicating that he was not consenting to the test and the defendant signed that form. At one point, the defendant stood up, not in an aggressive way, and was told summarily to “sit down” by the officer. After the defendant had signed the form indicating that he was not going to consent to the test, Officer Foust and the other officer, Officer Lawrence Kuhns, then advised him that he should put his arm out. The defendant asked why and the officers said that they were going to take the blood from him. The defendant protested; the officers insisted that they had a right to take the blood; the defendant at no time was aggressive, but he was insistent that he did not want the blood drawn from him. He expressed concern about the needles. The officers insisted that they were going to take the blood from him whether he wanted it drawn or not. Officer Kuhns stated “we can do this the easy way or we can do it the hard way.” With one officer holding his arm down, the nurse placed a needle in his arm. The defendant jerked away; the needle had to be changed. The second time the attempt was made, the defendant’s shoulder and arm were held and the blood sample was involuntarily obtained from the defendant.
(Trial court opinion at 1-3.)
After determining that this above scenario was in violation of appellee’s statutory right under
... whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986). In making this determination, we may consider only the evidence of the prosecution’s witnesses and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings. Reddix, 355 Pa.Super. at 518, 513 A.2d at 1042.
Commonwealth v. Fromal, 392 Pa.Super. 100, 111, 572 A.2d 711, 717 (1990).
In Pennsylvania, “Any person who drives ... 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 ... if a police officer has reasonable grounds to believe the person to have been driving ... a motor vehicle ... while under the influence of alcohol....”
(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) 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 for a period of 12 months.
(Emphasis added.)
In the case sub judice, it is clear that a violation of
It is undisputed that appellee did not have a constitutional right to refuse the blood alcohol test. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber, supra, the defendant was involved in an automobile accident and received treatment at a hospital for his injuries. A blood sample was withdrawn at the direction of a police officer, despite the defendant’s refusal to consent to the test. At trial, over the defendant’s objection, the blood test results were admitted into evidence. With respect to whether the defendant’s Fourth Amendment right against unreasonable searches and seizures was violated, the United States Supreme Court held that the administration of a non-consensual blood alcohol test was a reasonable search incident to the arrest of the defendant, where there was probable cause to believe the defendant had been operating a motor vehicle while under the influence of alcohol. The Court went on to state that the non-consensual blood test, while implicating the human dignity and privacy rights protected by the Fourth Amendment, was a reasonable search under the circumstances. Schmerber, supra, 384 U.S. at 770, 771, 86 S.Ct. at 1835, 1836.
In Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988), an en banc panel of this Court, following Schmerber, supra, held that there is no constitutional right to refuse to submit to a chemical test for blood alcohol
While the legislature has provided by statute that a driver, whom the police have probable cause to believe has been operating a vehicle while under the influence of alcohol, may refuse to submit to a chemical test for blood alcohol content, this right of refusal is not a constitutional right but rather is created solely by operation of the statute. “Neither the Fourth Amendment bar against unreasonable searches and seizures nor Fifth Amendment privilege against self-incrimination prevents the Commonwealth from requiring that a driver submit to a breathalyzer test. A driver therefore does not have a constitutional right to refuse. He has no right to refuse other than as provided in the implied consent law. Neither the Fourth nor Fifth Amendments prevents the admission into evidence of test results or of refusal.... A driver has no constitutional right to refuse and no right to have evidence either of the test results or of the refusal excluded....”
Id., 380 Pa.Superior Ct. at 359, 551 A.2d at 1092-1093, citing, Commonwealth v. Funk, 254 Pa.Super. 233 at 241-242, 385 A.2d 995 at 999-1000 [1978], quoting Commonwealth v. Rutan, 229 Pa.Super. 400, 404, 323 A.2d 730, 732 (1974) (citations omitted).
Therefore, as there is no constitutional right to refuse the blood alcohol test, but only a statutory right, we must now decide whether the suppression of the test results is appropriate where the police ignore a driver’s refusal to consent to such testing. The Hipp case is instructive on this point. In Hipp, appellant was involved in a two-car collision and transported to a hospital, wherein blood was withdrawn from appellant by hospital personnel for medical purposes and tested for alcohol content, pursuant to hospital procedure. A police officer investigating the accident spoke with and observed appellant in the emergency room. Having determined that appellant had been drinking alcohol, the officer requested hospital personnel to take a blood sample from appellant to be tested for alcohol content. A member
In arguing that the results of the initial blood test should be suppressed, appellant contended, inter alia, that the fact that he refused the officer’s request to submit to a second blood test precluded the officer from gaining access to the results of the earlier blood test conducted by the hospital. This Court stated:
However, Section 1547(b) does not require the affirmative consent of the driver prior to the administration of a blood alcohol test as appellant would have us find. See: Commonwealth v. Haynos [363 Pa.Super. 1, 525 A.2d 394 (1987)], supra; Commonwealth v. Funk, supra. See also: State v. Baker, 502 A.2d 489 (Me.1985); People v. Fite, 267 Cal.App.2d 685, 73 Cal.Rptr. 666 (1968). Cf. State v. Loscomb, 291 Md. 424, 437-38, 435 A.2d 764, 771 (1981). Nor does it create an exclusionary rule where (1) the suspect did not affirmatively consent to the test, or (2) where such a test was administered before or even after the suspect refused to consent to the test. All the statute provides is a limited, statutory privilege to refuse to submit to a chemical test. “Where the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Zimmerman v. O‘Bannon, 497 Pa. 551, 556, 442 A.2d 674, 677 (1982). Thus, we find that the refusal to submit to the blood alcohol test as requested by the officer has no bearing upon the admissibility of the results of the medical purposes blood alcohol test.
Id., 380 Pa.Superior Ct. at 360, 551 A.2d at 1093 (emphasis added).
While the Hipp case is factually dissimilar to the case sub judice in that appellant’s (Hipp’s) statutory right to refuse
The trial court, in determining that the test results should be suppressed in the present case, stated that admitting the test results into evidence would be contrary to the legislative intent of
We must stress that according to Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), there is no constitutional right to refuse a blood alcohol test where the police have probable cause to believe the person was driving a motor vehicle while under the influence of alcohol. Additionally, we fully acknowledge the state’s right to provide broader protections from searches and seizures based on state constitutional grounds than those provided by the Federal Constitution. Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), cert. granted in part, 489 U.S. 1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989). Under the present version of
We do not intend our decision today to be a sanction of the police conduct in the present case. In no way should our holding be interpreted as an abrogation of a defendant’s rights under
For the foregoing reasons, we reverse the trial court’s suppression order. Jurisdiction relinquished.
BECK, Judge, dissenting:
I respectfully dissent. I agree with the majority that the forced extraction of blood from appellee was a clear violation of the provisions of Pennsylvania’s Implied Consent Law,
I stress at the outset that this court’s review of a suppression court’s order is limited. On appeal,
we must consider only the evidence of the defendant’s [appellee’s] witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court’s findings of fact if those findings are supported by the record. Id.
Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988), appeal denied, 520 Pa. 588, 551 A.2d 215 (1988); see also Interest of Jermaine, 399 Pa.Super. 503, 504, 582 A.2d 1058, 1059 (1990).
I begin my analysis by reviewing the relevant language of the Implied Consent Law. The legislature provides in pertinent part within section 1547 that
(a) [a]ny person who drives, ... 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 ... if a police officer has reasonable grounds to believe the person to have been driving ... a motor vehicle ... while under the influence of alcohol;
(b) [i]f any person placed under arrest for [driving under the influence of alcohol or a controlled substance,
75 Pa.C.S.A. § 1547 ] 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 for a period of 12 months.
As acknowledged by the majority, the forced extraction of blood from appellee Molino was a clear violation of section 1547(b). The majority notes, and I completely agree, that “[t]he testing should not have been conducted once [Molino] expressed his refusal to submit to the blood test.” However, the majority finds that the intentional violation of this legislative mandate does not require the suppression of the test results at appellee’s criminal trial. I disagree with the majority’s reasoning and conclusion.
The majority concludes that a violation of the Implied Consent Law does not warrant exclusion of the blood test results based on dicta presented in a prior inapposite decision of this court: Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988) (en banc). Specifically the majority relies on the Hipp court’s dicta that the ICL does not “create an exclusionary rule where (1) the suspect did not affirmatively consent to the test, or (2) where such a test was administered before or even after the suspect refused to consent to the test.” 380 Pa.Super. at 360, 551 A.2d at 1093. Hipp is simply inapposite to the instant matter. Neither the facts nor issues addressed by the Hipp court are analogous to the facts or issue before this panel. The majority in fact acknowledges that Hipp “is factually dissimilar to the case sub judice.” Majority Opinion, at 72-73. In Hipp, “[t]he officer complied with the provisions of the [Implied Consent Law] in that after appellant’s refusal, no test was performed. Thus there was no violation of the terms of the [Implied Consent Law].” Hipp, 380 Pa.Super. at 359, 551 A.2d at 1093 (emphasis added). Moreover, the blood test in question in Hipp was taken for normal emergency room medical purposes, and not forced by the police. It is clear therefore that neither the facts nor issue before the Hipp court are apposite to our analysis and disposition of the instant matter.
The trial court summarized the events following appellee’s arrest as they were recorded on video tape. After being advised of the provisions of the ICL, the police requested appellee to submit to a blood test. Appellee at first did not respond. The police repeated the request for appellee to submit to the test, to which appellee clearly indicated he would not submit to the test. The police then requested that appellee sign a form stating that he knowingly refused to submit to the blood test. Appellee signed the form.
A short time afterward the police told appellee to put his arm out. When appellee asked why, the police told him they were going to administer a blood test. Appellee protested to any administration of a blood test. The police
This conduct plainly establishes the police acted in bad faith, intentionally violating the provisions of the Implied Consent Law. The video tape recording shows that the police were knowledgeable of and understood the provisions of the ICL. In fact, the police explained the various provisions of the ICL to appellee, including appellee’s right to refuse to submit to a chemical test and the evidentiary effect of such a refusal. The police had appellee sign a form evidencing appellee’s unambiguous and knowing refusal to consent to the blood test. Nevertheless, in response to appellee’s explicit refusal to submit to a blood test, the police ignored appellee’s exercise of his right to refuse, and forced the extraction of blood from appellee.3
As additional support for concluding that suppression is the proper remedy in this case, I find our supreme court’s decision in Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987), to be instructive. In Tarbert, the court found that police conduct which violated a statute could result in suppression. Tarbert did not involve bad faith on the part of the police; at issue was a misapplication of a statute on the part of the police. The rationale for suppression is stronger in the instant case than in Tarbert.
The Tarbert court confronted the issue “whether the police may set up systematic roadblocks for the purpose of stopping and observing drivers to determine whether they are operating a motor vehicle under the influence of alcohol.” 517 Pa. at 278, 535 A.2d at 1036. The court analyzed the challenged police conduct of setting up systematic roadblocks and requiring suspected drivers to submit to breathalyzer tests in light of the statutory authority which limited the power of the police to stop motor vehicles. Id., 517 Pa. at 294, 535 A.2d at 1043.
Pursuant to the language provided in
Of significance to the instant matter, the court held that because the roadblock stops were in violation of the state statute, the breathalyzer tests obtained during the stops were also unlawful. Therefore, the court held “the results of the [chemical] tests were properly suppressed in the ensuing criminal proceeding.” Id. Moreover, I note that the court held suppression was a proper remedy in Tarbert even though there was no indication that the police acted in bad faith.
The majority also states that suppression is not an appropriate remedy because appellee’s right to refuse to submit to the blood test is “only a statutory right.” For support of this proposition, the majority refers to a recent decision of this court, Commonwealth v. Loop, 400 Pa.Super. 597, 584 A.2d 343 (1990). In Loop, the panel held the superior court could not require the suppression of evidence for an alleged violation of a state law enforcement records statute. 400 Pa.Super. at 600, 584 A.2d at 346. In reaching this conclusion, the Loop court stated that it found the asserted statutory violation to be, at best, “problematic.” The court therefore, did not find a clear violation of the statute. Moreover, in Loop there was no allegation or indication of bad faith police conduct. The panel in fact limited its holding to the matter before it, stating that “under the facts of this case” suppression was improper. Loop, 400 Pa.Super. at 600, 584 A.2d at 346.
As a final point, I find the majority’s analysis of the instant suppression motion to be contrary to the language and intentions of the Implied Consent Law. The language of the Implied Consent Law is a careful and clear presentation of the legislature’s intent. The provisions of the statute demonstrate the General Assembly’s specific balancing of the privacy interests of motor vehicle operators within Pennsylvania against the equally important state interest to protect its citizens from the tragic harm caused by drunk drivers.
This court has previously recognized the important countervailing interests carefully considered by the legislature when enacting the Implied Consent Law. As explained by Judge Hoffman,
[o]ur Court has identified [the] competing interests which are involved when the state orders a chemical test to determine a person’s sobriety. On the one hand, the Commonwealth has an interest in attempting to secure evanescent and probative evidence of intoxication; on the other hand, an individual has an abiding interest in the integrity and sanctity of his person.
Commonwealth v. Funk, 254 Pa.Super. 233, 245, 385 A.2d 995, 1001 (Hoffman, J., concurring).
With today’s decision, the majority is rearranging the balance of interests carefully weighed by our legislature. As originally enacted and intended, the Implied Consent Law permitted a prosecutor to use as evidence either the blood test results obtained after a driver consented to the test, or use the fact that the driver refused to take the test.
In summary, I find no error of law in the suppression court’s order excluding appellee’s blood test results, where appellee’s blood was extracted by the police in bad faith, and in direct violation of the Implied Consent Law. I would affirm the suppression court’s order. Any other result is unjust, condones police conduct taken in bad faith, and is contrary to legislative intent.
Notes
Id. at 772, 86 S.Ct. at 1836. I find the instant police conduct to be closer in relation to the forced stomach pumping of a suspect in Rochin v. California, 342 U.S. 165, 166, 72 S.Ct. 205, 206, 96 L.Ed. 183 (1952), than to the reasonably administered blood test in Schmerber. Police actions involving the forced restraint of a suspect while a nurse attempts on two occasions to put a needle into a suspect’s arm “do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience.” Rochin, 342 U.S. at 172, 72 S.Ct. at 209.we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions ... in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.