Com. v. Danforth

• Citation: 395 Pa.Super. 1,576 A.2d 1013
• Parties: , 59 USLW 2031 COMMONWEALTH of Pennsylvania v. Sharon Louise DANFORTH, Appellant.
• Decision Date: 14 June 1990
• Court: Pennsylvania Superior Court

Page 1013

576 A.2d 1013

395 Pa.Super. 1, 59 USLW 2031

COMMONWEALTH of Pennsylvania v. Sharon Louise DANFORTH, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 23, 1989.

Filed June 14, 1990.

James A. Swetz, Stroudsburg, for appellant.

E. David Christine, Dist. Atty., East Stroudsburg, for Com., appellee.

Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, OLSZEWSKI, DEL SOLE, MONTEMURO, TAMILIA, KELLY, and JOHNSON, JJ.

MONTEMURO, Judge:

The issue on appeal is whether the taking and testing of a blood sample for alcohol content pursuant to one of the "implied consent" provisions of the Motor Vehicle Code, 75 Pa. C.S.A. § 1547(a)(2), ¹ violates the federal and state constitutional prohibition against unreasonable searches and seizures. We find that the breath, blood and urine tests authorized by Section 1547(a)(2) are constitutionally invalid. We reverse appellant's conviction and remand for a new trial.

Following a trial by jury, appellant, Sharon Louise Danforth, was convicted of driving under the influence of alcohol, 75 Pa. C.S.A. § 3731(a)(4). The trial judge denied appellant's post-trial motions and sentenced appellant to a minimum term of imprisonment of forty-eight (48) consecutive hours to a maximum term of one year.

During the early morning hours of September 29, 1987, the Coolbaugh Township police received a call for help from the Byrd residence. While responding to the call, the police encountered a serious one-car accident which had occurred a few hundred yards south of the Byrd residence. The driver's side of the vehicle was unoccupied. The police discovered that a male passenger with no apparent signs of life remained in the car. The car had impacted with a tree stump and a utility pole lying on the side of the road.

The investigating police officer continued to the Byrd residence where he found appellant who identified herself as the driver of the car involved in the accident. Appellant told the officer that earlier she had been at the Swiftwater Inn where she met a man who told her that he lived near her in Pocono Farms. At the man's request, appellant agreed to give him a ride home. During the ride, the man lunged at appellant, grabbed at her clothes, and tried to remove her blouse. Appellant told him to stop several times, but he persisted. When appellant tried to defend herself by pushing her passenger away, she lost control of the car which ran off the road into a nearby wooded area. After the accident appellant ran to the Byrd residence and called the police.

The police officer encouraged appellant to go to the hospital for treatment of her facial injuries. While appellant was receiving treatment at the hospital, the officer came to the hospital to ask more questions. When asked by the officer to recount what had happened, appellant told the same story she had told earlier while at the Byrd residence.

Based solely on the severity of the accident and the fact that a death had occurred, the officer decided to ask appellant for a blood sample. At no time did the officer suspect that appellant was under the influence of alcohol. There was no odor of alcohol about her, her complexion appeared normal, her eyes were not bloodshot, her balance while standing was normal, and she did not need any help in walking. The officer told appellant that he was investigating the accident and that as part of the accident investigation he wanted to obtain a sample of her blood for analysis. Appellant agreed to have a sample of her blood taken. The officer did not tell appellant that the blood test was part of a criminal investigation, or that if the sample resulted in a blood alcohol content of .10% or more she could be charged and prosecuted for driving under the influence. He did not give appellant a Miranda warning or inform her that she may be giving evidence against herself. At no time was appellant asked to sign a consent form. A hospital laboratory technician drew blood from appellant and turned the sample over to the police officer. The police crime lab test results revealed a .21% blood alcohol level.

Appellant was arrested several weeks after the accident, on October 16, 1987, and charged with driving under the influence, ² homicide by vehicle, ³ homicide by vehicle while driving under the influence ⁴ and [failing to] driv[e] vehicle at safe speed. ⁵

In her pre-trial motions, appellant moved to suppress the results of the blood test on the basis that the test was taken in violation of her federal and state constitutional right against unreasonable searches and seizures. The suppression court denied the motion to suppress, finding that appellant's consent to the blood test was implied under the implied consent provision of the Motor Vehicle Code, 75 Pa. C.S.A. § 1547(a)(2). The court never addressed the issue of whether appellant voluntarily consented to the test. After a trial by jury, appellant was convicted of driving under the influence. The trial court denied her post-trial motions. Following sentencing, appellant brought this timely appeal.

Appellant argues that the blood test administered pursuant to § 1547(a)(2) of the Motor Vehicle Code was unconstitutional because the police officer lacked probable cause to believe appellant was under the influence. We agree.

I. CONSTITUTIONALITY OF § 1547(a)(2) UNDER THE FEDERAL CONSTITUTION

The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ... "U.S. Const. amend. IV. The Fourth Amendment applies to the States by virtue of the Fourteenth Amendment of the Federal Constitution. New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 738, 83 L.Ed.2d 720 (1985). The Fourth Amendment functions as a constraint against arbitrary intrusions by the government into an individual's privacy, dignity, and security. Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967); Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966).

In order for the Fourth Amendment concerns to be implicated, we must first ascertain that the test is attributable to the Government or its agents. Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317, 320-21 (1985) (citations omitted); Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983), rev'd on other grounds, Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). At the police officer's request, appellant's blood was drawn by a hospital technician who handed over the sample to the officer for testing. Thus, the hospital technician acted as an agent of the Commonwealth in drawing the blood sample. See Commonwealth v. Cieri, supra 346 Pa.Super. at 85, 499 A.2d at 321 (where private hospital nurse drew defendant's blood according to routine hospital procedure, and later forwarded sample to police for blood alcohol test, nurse acted as an "instrument" or "agent" of the government). The analysis for blood alcohol content was performed by the state police crime laboratory. Given these facts, the taking and testing of appellant's blood are attributable to the Commonwealth.

It is well-established that 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, supra 384 U.S. at 767-68, 86 S.Ct. at 1834; Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985). See also Commonwealth v. Murray, 441 Pa. 22, 25 271 A.2d 500, 501 (1970); Commonwealth v. Smith, 382 Pa.Super. 288, 555 A.2d 185 (1989). ⁶ Since a blood alcohol test constitutes a search within the meaning of the Fourth Amendment, the test is constitutionally valid only if reasonable. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); Schmerber v. California, supra 384 U.S. at 768, 86 S.Ct. at 1834; In re Gartley, 341 Pa.Super. 350, 491 A.2d 851 (1985), aff'd, In re Search Warrant B-21778, 513 Pa. 429, 521 A.2d 422 (1987) (Fourth Amendment prohibits only those searches which are unreasonable).

As a general rule, a search or seizure is not reasonable unless it is conducted pursuant to a search warrant issued by a magistrate upon a showing of probable cause. Commonwealth v. Quarles, 229 Pa.Super. 363, 377, 324 A.2d 452, 460 (1974), quoting Commonwealth v. Maione, 227 Pa.Super. 239, 324 A.2d 556, 558 (1974). See also Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). The warrant requirement is separate from the probable cause requirement, and, even if the search may be performed without a warrant, the search still must be based on probable cause to believe that the person to be searched has violated the law. New Jersey v. T.L.O., supra 469 U.S. at 340, 105 S.Ct. at 742, citing Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

The investigating officer in this case testified that he requested the sample of appellant's blood for testing under the authority of the provision of the Motor Vehicle Code which permits blood tests in the event that the driver is involved in an accident in which death results. The officer was referring to the provision of the "implied consent law" which provides:

§ 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...