Com. v. Kohl

• Decision Date: 18 June 1990
• Citation: 576 A.2d 1049,395 Pa.Super. 73
• Parties: COMMONWEALTH of Pennsylvania v. Bruce A. KOHL, Appellant.
• Court: Pennsylvania Superior Court

Page 1049

576 A.2d 1049

395 Pa.Super. 73

COMMONWEALTH of Pennsylvania v. Bruce A. KOHL, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 23, 1989.

Filed June 18, 1990.

Michael Brunnabend, Allentown, for appellant.

Richard R. Tomsko, Asst. Dist. Atty., Allentown, for Com., appellee.

Mary B. Seiverling, Deputy Atty. Gen., Harrisburg, intervenor.

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

MONTEMURO, Judge:

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 3} and the summary offenses of reckless driving ⁴ 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 twelve (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, 75 Pa.C.S.A. § 1547(a). ⁶ We find that the blood test was constitutionally invalid, and remand and reverse for a new trial.

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 blood 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 75 Pa.C.S.A. § 1547(a):

§ 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 pedestrian required treatment at a medical facility or was killed.

75 Pa.C.S.A. § 1547(a).

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 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 acted 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 § 1547(a)(1)

This Court has previously upheld the constitutional validity of a warrantless search conducted under § 1547(a)(1), interpreting the requirement that the officer have "reasonable grounds" to believe that the driver was driving under the influence as requiring that the officer have "probable cause" to believe that the driver was under the influence. Commonwealth v. Quarles, 229 Pa.Super. 363, 388, 324 A.2d 452, 466 (1974). See also Commonwealth v. Smith, 382 Pa.Super. 288, 555 A.2d 185, 189 (1989); Commonwealth v. Cieri, supra 346 Pa.Super. at 87, 499 A.2d at 322. Probable cause exists where the officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver has been driving under the influence of alcohol or a controlled substance. Smith, supra 382 Pa.Super. at 296, 555 A.2d at 189; Commonwealth v. Pelkey, 349 Pa.Super. 373, 378-79, 503 A.2d 414, 416 (1985), citing Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279 (1969).

The trial court held that the test performed on appellant's blood sample fell within the purview of § 1547(a)(1), finding that the police officer had probable cause to believe that appellant had been driving while under the influence. In reaching this conclusion, the trial court cited the following facts 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 clear 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 § 1547(a)(1) had been met. In Commonwealth v. Smith, supra, 382 Pa.Super. at 297, 555 A.2d at 189, this Court held that the police officer had probable cause to believe the defendant had been driving under the influence of alcohol where the defendant smelled of alcohol and had glassy, bloodshot eyes, and the accident consisted of defendant's car rolling over at least once. In Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988), the Court found the police officer had probable cause to believe appellant had been driving under the influence where appellant's eyes were bloodshot, his speech was slurred, and he had a strong odor of alcohol on his breath. In Commonwealth v. Haynos, 363 Pa.Super. 1, 525 A.2d 394 (1987), allocatur denied, 517 Pa. 604, 536 A.2d 1329 (1987), the Court held that probable cause existed where the arresting officer observed that defendant was involved in a one-car accident and the officer detected an odor of alcohol on defendant's breath. In Commonwealth v. DeFaveri, 352...