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State Supreme Court Holds Police Cannot Take Warrantless Blood Draws From Unconscious DUI Suspects

When a motorist drives on a road in Pennsylvania, he or she is “deemed to have given consent” to chemical testing to determine whether he or she is driving under the influence of alcohol or a controlled substance (“DUI”), provided that a police officer first develops “reasonable grounds” to suspect such an impairment. Nonetheless, this “implied consent” statute also grants DUI arrestees the right to refuse chemical testing. While Illinois has its own laws, these principles are also relevant to Illinois DUI defendants.

In a recent case, the Pennsylvania Supreme Court granted an appeal to consider the lawfulness of a warrantless blood draw conducted upon a motorist who, having been arrested for DUI, had then been rendered unconscious by medical personnel before a police officer provided O’Connell warnings and before the officer requested the motorist’s submission to a chemical test. The Philadelphia Municipal Court, the Court of Common Pleas, and the Superior Court all held that a blood draw conducted under these circumstances is impermissible and that the results of the derivative blood test are accordingly inadmissible at trial. Since the seizure of blood violated Pennsylvania’s implied consent statute, 75 Pa.C.S. § 1547, and since no other circumstances justified the failure to obtain a search warrant, the state high court affirmed.

On December 29, 2012, at approximately 3:30 p.m., a Philadelphia Police Officer was on routine patrol when he received a radio call indicating that there was a person screaming in the vicinity of 100 West Penn Street. The radio call warned him to be on the lookout for a maroon SUV. When he arrived on West Penn Street, he observed a vehicle matching that description with its engine running and its brake lights repeatedly flickering on and off. A man later identified as the defendant was sitting in the driver’s seat. The officer activated his siren and emergency lights and pulled up behind the maroon SUV. The defendant exited the vehicle and began to stagger toward the officer, even though he had not been ordered to step out of the vehicle. He tried to speak, but his speech was so slurred that the officer could not understand what he was saying. He detected the smell of alcohol emanating from the defendant, and he observed a bottle of brandy on the front seat of the SUV. The bottle was in plain view, since the defendant had left the driver’s door open when he exited the vehicle. Based upon his observations and experience, the officer believed that the defendant was intoxicated to the point that he required medical attention. He placed him under arrest for DUI and called for a wagon, which transported the defendant to Einstein Medical Center.

At around 4:45 p.m. that same day, another officer arrived at Einstein Medical Center, having been informed that an individual at that hospital had been arrested for DUI. A few minutes before he arrived, however, the hospital staff administered four milligrams of Haldol to the defendant, rendering him unconscious. The officer attempted to communicate with the defendant by speaking his name and tapping him on the shoulder, but he was unresponsive. Nevertheless, the officer read O’Connell warnings to the defendant. Still unconscious, he was unable to respond in any manner. The officer then instructed a nurse to draw blood. It was undisputed that neither officer attempted to secure a search warrant for this blood draw. It was also undisputed that, due to his unconscious state, the defendant could neither hear the officer nor sign the implied consent warnings.

The Commonwealth charged the defendant with DUI. He filed a pre-trial motion to suppress the evidence derived from the blood draw, which he alleged had been conducted in violation of his rights under the Fourth Amendment. He argued that the officer lacked probable cause to arrest him for DUI and that the blood draw was unlawful under the decision of the Supreme Court of the United States in Missouri v. McNeely because the police did not obtain a search warrant and because no exigent circumstances justified the warrantless search of his blood.

Following a suppression hearing on May 21, 2013, the Philadelphia Municipal Court granted the motion and suppressed the results of the blood draw. The Municipal Court concluded that, although probable cause existed for the DUI arrest, the officers were required to obtain a warrant for the blood draw because his unconscious state prevented him from consenting or refusing, and no exigent circumstances were present. Considering the totality of the circumstances as required by McNeely, the Municipal Court concluded that it would not have been unreasonable for the police to obtain a warrant before having blood drawn.

The Commonwealth appealed to the Court of Common Pleas, which affirmed the Municipal Court’s suppression order. The trial court, also applying McNeely, concluded that the Commonwealth failed to show “that it would have been impracticable or infeasible for [either officer] to obtain a warrant in the circumstances.” The Superior Court affirmed.

The Pennsylvania Supreme Court affirmed. It first held that the defendant had an absolute right to refuse chemical testing pursuant to the implied consent statute, that his unconscious state prevented him from making a knowing and conscious choice as to whether to exercise that right, and that the implied consent statute did not authorize a blood test conducted under such circumstances.

Having determined that the statutory right of refusal applies to all DUI arrestees without regard to an arrestee’s state of consciousness, the court next considered the consequence that flows from the deprivation of that right.

The court concluded that the language of 75 Pa.C.S. § 1547(a), providing that a DUI suspect “shall be deemed to have given consent” to a chemical test, does not constitute an independent exception to the warrant requirement of the Fourth Amendment. Like any other search premised upon the subject’s consent, a chemical test conducted under the implied consent statute is exempt from the warrant requirement only if consent is given voluntarily under the totality of the circumstances.

Consistent with its understanding of the statute in O’Connell, the court concluded that a DUI arrestee must be provided with an opportunity to make a “knowing and conscious choice” between providing voluntary consent to a chemical test or accepting the consequences that will follow from the refusal to do so. Implied consent, standing alone, does not satisfy the constitutional requirements for the searches that the statute contemplates. If neither voluntary consent nor some other valid exception to the warrant requirement is established, a chemical test may be conducted only pursuant to a search warrant.

The court concluded that since the officers failed to satisfy the requirements of the implied consent statute to establish voluntary consent, the Commonwealth could not demonstrate that the blood draw was justified by the consent exception to the warrant requirement. Furthermore, the Commonwealth did not seek to demonstrate that exigent circumstances dispensed with the need to obtain a warrant or that the blood draw was justified by any other exception to the warrant requirement. Therefore, no warrant was obtained, and no exception to the warrant requirement applied. Accordingly, the blood sample was obtained in violation of the right to be free from unreasonable searches and seizures, and the results of a derivative blood test correctly were suppressed.

The order of the Superior Court was affirmed.

If you have been charged with a DUI offense in Illinois, it is crucial to speak to an experienced Illinois DUI lawyer as soon as possible. Harvatin Law Offices, PC provides knowledgeable representation to people in Springfield and throughout Illinois. We have considerable experience defending individuals charged with DUI offenses and representing drivers with revoked licenses before the Illinois Secretary of State. To learn more, and to set up a free initial consultation, contact us online or call us at 217.525.0520.

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Hawaii Supreme Court Holds a DUI Suspect May Not Be Preemptively Refused the Opportunity to Communicate with Counsel, Illinois DUI Lawyer Blog, July 3, 2017.

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