warrantless blood test in Pennsylvania

2026Rather, [this Court] said, “Birchfield addressed the constitutionality of a [s]tate statute that made it a crime to refuse a warrantless blood test after being arrested for DUI.” Id. (emphasis [omitted]).

2026It (Footnote continued on next page…) I further agree with the Majority’s conclusion that both this Court’s and the Pennsylvania Supreme Court’s controlling Fourth Amendment precedents hold that the United States Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. 438 (2016), does not apply in the civil context, i.e., to situations where implied consent statutes impose only civil penalties for refusing to consent to a warrantless blood test.

2020In Birchfield, “the Supreme Court of the United States held that a state cannot impose criminal penalties upon an individual who refuses to submit to a warrantless blood test because such penalties violate an individual’s Fourth Amendment ... right to be free from unreasonable searches[.]” Commonwealth v. Giron, 155 A.3d 635, 639 (Pa. Super. 2017) (citation omitted).

2019Was not the sentence imposed for a conviction upon 75 Pa.C.S. § 3802(a)(1) -with accident and with refusal, illegal because it exceeded the maximum sentence allowed by law and, because Appellant cannot be sentenced to an enhanced penalty for refusing to submit to a warrantless blood test upon threat of punishment under Birchfield and Commonwealth v. Giron, 155 A.3d 635 (Pa. Super. 2017)? 4.

2019See Commonwealth v. Smith, 177 A.3d 915, 921 (Pa. Super. 2017) (restating Birchfield “prohibited states from imposing criminal penalties upon an individual’s refusal to submit to a warrantless blood test.”). ____________________________________________ 6 We note the DL-26 forms were not admitted into evidence at the time of the suppression hearing.

2019See, e.g., Commonwealth v. Smith, 177 A.3d 915, 921 (Pa.Super. 2017) (reiterating that Birchfield “prohibited states from imposing criminal penalties upon an individual’s refusal to submit to a warrantless blood test.”).

2025No presumptions shall arise from this evidence but it may be considered along with other factors concerning the charge. 75 Pa.C.S.A. § 1547(e). “[T]he ‘evidentiary consequence’ provided by Section 1547(e) for refusing to submit to a warrantless blood test—the admission of that refusal at a subsequent trial for DUI—remains constitutionally permissible post-Birchfield.”3 Bell, supra at 540 , 211 A.3d at 776 .

2020In Commonwealth v. Bell, 211 A.3d 761 (Pa. 2019), cert. denied 140 S. Ct. 934 (U.S. Jan. 21, 2020), that court applied Myers and Birchfield, clarifying that “the pertinent question in determining the constitutionality of a statute demanding this particular choice is whether the consequence for refusing a warrantless blood test undermines the inference that the motorist implicitly consented to it, and suggests instead that the ‘search’ was coerced.” Bell, 211 A.3d at 773 .

2020“One such exception is consent, voluntarily given.” -9- J-S23014-20 Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000) (citation omitted); see also Myers, 164 A.3d at 1178 (plurality) (explaining that Birchfield’s holding “supports the conclusion that . . . an individual must give actual, voluntary consent at the time that testing is requested”).6 In determining whether Appellant provided voluntary consent to the warrantless blood test, we note: [i]n determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essential

2019“One such exception is consent, voluntarily given.” Id. at 888-889 (citation omitted). [A panel of this Court] set forth fundamental law with regard to warrantless blood draws and consent as follows: In Birchfield [v. North Dakota, U.S. , 136 S.Ct. 2160 (2016)], the Supreme Court of the United States held that criminal penalties imposed on individuals who refuse to submit to a warrantless blood test violate the Fourth Amendment (as incorporated into the Fourteenth -6- J-A06010-19 Amendment).

2022See Commonwealth v. Monarch, 200 A.3d 51, 57 (Pa. 2019) (providing that a claim that “enhanced mandatory minimum sentences authorized by the [J-31-2022] - 11 statute are unconstitutional when based on a refusal to submit to a warrantless blood test” constitutes a challenge to the legality of the sentence); see also Moore, 247 A.3d at 997 (explaining that, because a sentencing court does not have authority to sentence a defendant under a sentencing statute that is unconstitutionally vague, a void-for- vagueness challenge “is exactly the type of claim” that we held “implicated the legality of th

2019In Monarch, we concluded that, “[u]nder Birchfield, it is clear the enhanced mandatory minimum sentences authorized by the statute are unconstitutional when based on a refusal to submit to a warrantless blood test.” Id. at 57 .

2020The Court relied upon its 1966 decision in Schmerber, where it held that an officer who arrested a DUI suspect at a hospital following an automobile accident lawfully could demand the suspect’s submission to a warrantless blood test because, due to the body’s natural metabolic processes, the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” Schmerber, 384 U.S. at 770 (internal quotation marks omitted).

2019In Schmerber , the United States Supreme Court considered whether use of the results of a DUI defendant's warrantless blood test as evidence at his trial violated, inter alia , the Fourth and Fifth Amendments. 384 U.S. at 759 , 86 S.Ct. 1826 .

2025Such “rival priorities would put officers, who must often engage in a form of triage, to a dilemma,” forcing them to “choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits.” 118 Accordingly, the Mitchell plurality concluded that, if a police officer has probable cause to suspect DUI, and the suspect’s “unconsciousness or stupor requires him to be taken to the hospital or similar facility b

2025Such “rival priorities would put officers, who must often engage in a form of triage, to a dilemma,” forcing them to “choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits.” 118 Accordingly, the Mitchell plurality concluded that, if a police officer has probable cause to suspect DUI, and the suspect’s “unconsciousness or stupor requires him to be taken to the hospital or similar facility b

2020Commonwealth v. Johnson, 188 A.3d 486, 489 (Pa.Super. 2018) (quoting Commonwealth v. Evans, 153 A.3d 323, 328 (Pa.Super. 2016) (quotation marks omitted)). -7- J-S61033-19 In determining whether Appellant provided voluntary consent to the warrantless blood test, we apply the following precedent: In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice—not the result of duress or coercion, express or implied, or a will overborne—under the totality of the circumstances.

2020Commonwealth v. Johnson, 188 A.3d 486, 489 (Pa.Super. 2018) (quoting Commonwealth v. Evans, 153 A.3d 323, 328 (Pa.Super. 2016) (quotation marks omitted)). -7- J-S61033-19 In determining whether Appellant provided voluntary consent to the warrantless blood test, we apply the following precedent: In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice—not the result of duress or coercion, express or implied, or a will overborne—under the totality of the circumstances.

2020See Commonwealth v. Farrow, 168 A.3d 207, 213, 215-18 (Pa.Super. 2017) (stating issue implicates legality of sentence; vacating duplicative DUI convictions where Commonwealth charged DUI-general impairment as well as two separate counts reflecting sentencing enhancements).5 In addition, in the wake of Birchfield, we have held that the previous versions of Sections 3803 and 3804 are unconstitutional, insofar as they impose enhanced criminal penalties upon defendants who refused to consent to a warrantless blood test.

2020See Commonwealth v. Farrow, 168 A.3d 207, 213, 215-18 (Pa.Super. 2017) (stating issue implicates legality of sentence; vacating duplicative DUI convictions where Commonwealth charged DUI-general impairment as well as two separate counts reflecting sentencing enhancements).5 In addition, in the wake of Birchfield, we have held that the previous versions of Sections 3803 and 3804 are unconstitutional, insofar as they impose enhanced criminal penalties upon defendants who refused to consent to a warrantless blood test.

2020Commonwealth v. Johnson, 188 A.3d 486, 489 (Pa.Super. 2018) (quoting Commonwealth v. Evans, 153 A.3d 323, 328 (Pa.Super. 2016) (quotation marks omitted)). -7- J-S61033-19 In determining whether Appellant provided voluntary consent to the warrantless blood test, we apply the following precedent: In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice—not the result of duress or coercion, express or implied, or a will overborne—under the totality of the circumstances.

2020Commonwealth v. Johnson, 188 A.3d 486, 489 (Pa.Super. 2018) (quoting Commonwealth v. Evans, 153 A.3d 323, 328 (Pa.Super. 2016) (quotation marks omitted)). -7- J-S61033-19 In determining whether Appellant provided voluntary consent to the warrantless blood test, we apply the following precedent: In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice—not the result of duress or coercion, express or implied, or a will overborne—under the totality of the circumstances.

2019See Welch , 585 A.2d at 520 (defendant's refusal of a warrantless search of her bedroom could not be used as evidence of consciousness of guilt).

2019See Commonwealth v. Welch, 585 A.2d 517 (Pa. Super. 1991) (holding that a defendant’s refusal to consent to a search in the absence of a warrant was not admissible under a consciousness-of-guilt theory of relevancy); see also Commonwealth v. Chapman, 136 A.3d 126 (Pa. 2016) (holding that a defendant’s refusal to submit to a warrantless blood test for DNA purposes was inadmissible to demonstrate consciousness of guilt).

2025In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.”). 78 Id. at 152 (citing McDonald v. United States, 335 U.S. 451, 456 (1948)). 79 Id. at 153 (quoting Richards v. Wisconsin, 520 U.S. 385, 393 (1997)). [J-43-2024] - 24 never” situations involving the destruction of evidence because the suspect has no control over the dissipation of BAC evidence, which occurs naturally, gradually, and predictably. 80 Moreover, the McNeely Court reasoned, suspects typicall

2022(Licensee’s Br. at 29-30 (discussing Missouri v. McNeely, 569 U.S. 141 (2013), and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)).) Licensee stresses a motorist’s constitutional right to refuse a warrantless blood test, as opposed to a breath test, and contends that any penalty imposed upon that refusal—such as a driver’s license suspension—is violative of the unconstitutional conditions doctrine.

2020“One such exception is consent, voluntarily given.” -9- J-S23014-20 Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000) (citation omitted); see also Myers, 164 A.3d at 1178 (plurality) (explaining that Birchfield’s holding “supports the conclusion that . . . an individual must give actual, voluntary consent at the time that testing is requested”).6 In determining whether Appellant provided voluntary consent to the warrantless blood test, we note: [i]n determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essential

2019As the Majority indicates, "[t]he United States Supreme Court's decisions in [ Missouri v. ] McNeely [, 569 U.S. 141 , 133 S.Ct. 1552 , 185 L.Ed.2d 696 (2013) ] and Birchfield [ v. North Dakota , --- U.S. ----, 136 S. Ct. 2160 , 195 L.Ed.2d 560 (2016) ], and this Court's decision in [ Commonwealth v. ] Myers , [ 640 Pa. 653 , 164 A.3d 1162 (2017) ] indicate a warrantless blood test, which is conducted when no exceptions to the warrant requirement apply, violates the Fourth Amendment rights of a motorist suspected of DUI." Majority Op. at 773.

2019In further support of this proposition, appellant cites Commonwealth v. Chapman , 635 Pa. 273 , 136 A.3d 126 (2016), in which this Court held a defendant's refusal to submit to a warrantless blood test for DNA purposes was inadmissible to demonstrate consciousness of guilt.

2019As with those other types of warrantless searches, admission into evidence of one's refusal to consent to a warrantless blood test to demonstrate consciousness of guilt is similarly "problematic." Chapman , 136 A.3d at 131 .

2019The Court later decided Neville , which presented the question of whether the trial court's admission of a DUI defendant's refusal to submit to a warrantless blood test violated his rights under the Fifth Amendment. 459 U.S. at 554 , 103 S.Ct. 916 .

2019The Court later decided Neville , which presented the question of whether the trial court's admission of a DUI defendant's refusal to submit to a warrantless blood test violated his rights under the Fifth Amendment. 459 U.S. at 554 , 103 S.Ct. 916 .

2019Moreover, because the search warrant process provides a simple, routine, and well-understood mechanism to validate a blood test, and therefore to establish a constitutional prerequisite to the imposition of penalties for refusal to comply, the admission of evidence of refusal to consent to a warrantless blood test not only penalizes the exercise of a constitutional right, but it does so "needlessly." Jackson , 390 U.S. at 583 , 88 S.Ct. 1209 ("Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right.").

2019Moreover, because the search warrant process provides a simple, routine, and well-understood mechanism to validate a blood test, and therefore to establish a constitutional prerequisite to the imposition of penalties for refusal to comply, the admission of evidence of refusal to consent to a warrantless blood test not only penalizes the exercise of a constitutional right, but it does so "needlessly." Jackson , 390 U.S. at 583 , 88 S.Ct. 1209 ("Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right.").

2019Because there is no categorical basis for dispensing with the warrant requirement for blood tests, and because there is a concomitant constitutional right to refuse to consent to such a warrantless search, the introduction of a motorist's refusal to consent to a warrantless blood test as evidence of his guilt is "a penalty imposed by courts for exercising a constitutional privilege." Griffin , 380 U.S. at 614, 85 S.Ct. 1229 .

2019Because there is no categorical basis for dispensing with the warrant requirement for blood tests, and because there is a concomitant constitutional right to refuse to consent to such a warrantless search, the introduction of a motorist's refusal to consent to a warrantless blood test as evidence of his guilt is "a penalty imposed by courts for exercising a constitutional privilege." Griffin , 380 U.S. at 614, 85 S.Ct. 1229 .

2025In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.”). 78 Id. at 152 (citing McDonald v. United States, 335 U.S. 451, 456 (1948)). 79 Id. at 153 (quoting Richards v. Wisconsin, 520 U.S. 385, 393 (1997)). [J-43-2024] - 24 never” situations involving the destruction of evidence because the suspect has no control over the dissipation of BAC evidence, which occurs naturally, gradually, and predictably. 80 Moreover, the McNeely Court reasoned, suspects typicall

2025In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.”). 78 Id. at 152 (citing McDonald v. United States, 335 U.S. 451, 456 (1948)). 79 Id. at 153 (quoting Richards v. Wisconsin, 520 U.S. 385, 393 (1997)). [J-43-2024] - 24 never” situations involving the destruction of evidence because the suspect has no control over the dissipation of BAC evidence, which occurs naturally, gradually, and predictably. 80 Moreover, the McNeely Court reasoned, suspects typicall

2025In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.”). 78 Id. at 152 (citing McDonald v. United States, 335 U.S. 451, 456 (1948)). 79 Id. at 153 (quoting Richards v. Wisconsin, 520 U.S. 385, 393 (1997)). [J-43-2024] - 24 never” situations involving the destruction of evidence because the suspect has no control over the dissipation of BAC evidence, which occurs naturally, gradually, and predictably. 80 Moreover, the McNeely Court reasoned, suspects typicall

2025“But technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s 80 Id. 81 Id. 82 Id. at 153-54. 83 Id. at 154. 84 Id. at 154-55; see Pa.R.Crim.P. 203(a) (“In the discretion of the issuing authority, advanced communication technology may be used to submit a search warrant application and affidavit(s) and to issue a search warrant.”). [J-43-2024] - 25 essential role as a check on police discretion, are relevant to an assessment of exigency.” 85 In light of these considerations, McNeely held “that in drunk-d

2022In Pennsylvania, however, a licensee arrested for DUI has a right to refuse chemical testing, see 75 Pa. C.S. § 1547(b)(1) and (b.1)(1); Com. v. Eisenhart, 611 A.2d 681, 684 (Pa. 1992),5 and it is not a crime for a licensee arrested for DUI to refuse chemical testing.

2022See Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016) (holding that “[p]rior to addressing the merits of the appeal, we must review counsel’s compliance with the procedural requirements for withdrawing as counsel”). ____________________________________________ 7 In Birchfield, the Supreme Court held that a warrantless blood test is not valid under an implied consent law when there are criminal sanctions for refusing consent.

2022The court also noted the great deference given to the sentencing court “because it is in the best position to view an appellant’s character, displays of remorse, defiance, indifference, and the overall effect and nature of the crime.” Id. (citing Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa. Super. 2011)).