Com. v. Molino

• Decision Date: 26 June 1991
• Citation: 406 Pa.Super. 66,593 A.2d 872
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Dominick Mario MOLINO.
• Court: Pennsylvania Superior Court

Page 872

593 A.2d 872

406 Pa.Super. 66

COMMONWEALTH of Pennsylvania, Appellant, v. Dominick Mario MOLINO.

Superior Court of Pennsylvania.

Argued Jan. 23, 1991.

Filed June 26, 1991.

Nancy L. Butts, Asst. Dist. Atty., Williamsport, for Com., appellant.

Anthony D. Miele, Williamsport, for appellee.

Before OLSZEWSKI, BECK and TAMILIA, JJ.

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 75 Pa.C.S.A. § 3731(a)(1) (driving under the influence); 75 Pa.C.S.A. § 3714 (reckless driving); 18 Pa.C.S.A. § 5104 (resisting arrest), § 5503 (disorderly conduct), and § 5505 (public drunkenness). The question before us is whether the results of a blood alcohol test are admissible into evidence, where the blood test is administered after the driver exercises his statutory right to refuse chemical testing under 75 Pa.C.S.A. § 1547(b)(1). For the reasons below, we hold that the trial court erred in suppressing the test results and accordingly reverse the suppression order.

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 75 Pa.C.S.A. § 1547(b)(1) to refuse the blood test, the trial court granted appellee's motion to suppress the test results. In an appeal from the denial of a motion to suppress, our role is to determine:

... 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...." 75 Pa.C.S.A. § 1547(a)(1). Under, § 1547(b)(1), however, a person may refuse to submit to such testing, thereby withdrawing his or her implied consent under § 1547(a). While we agree with the trial court's finding that a violation of 75 Pa.C.S.A. § 1547(b)(1) did in fact occur, we believe that such statutory violation does not warrant the suppression of evidence obtained in the process. 75 Pa.C.S.A. § 1547(b)(1) provides:

(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 § 1547(b)(1) in fact occurred under the trial court's findings of fact. The testing should not have been conducted once appellee expressed his refusal to submit to the blood test. Therefore, the persistence of the police in verbally pressuring appellee to submit to the blood test violated appellee's statutory right to refuse. The only issue before us is whether the violation of appellee's rights under § 1547(b)(1) should be remedied by suppression of the blood test results from the evidence.

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 content, but only a limited statutory right by virtue of 75 Pa.C.S.A. § 1547(b)(1). Specifically, we stated:

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. 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...