Commonwealth of Pennsylvania vs. David Alan Lennon No. 38-CR-0001182-2016

Criminal Action-Law-Driving Under the Influence-Omnibus Pretrial Motion-Suppression of Evidence-Blood Test Results-Warrantless Taking-Implied Consent-Voluntariness of Consent-Totality of the Circumstances

Defendant, who was charged with two (2) counts of Driving Under the Influence, filed an Omnibus Pretrial Motion seeking suppression of the results of blood testing on the basis that he was subject to an unlawful search and seizure when his blood was drawn without a warrant and valid consent.

1. Pa.R.Crim.P. Rule 581 permits a defendant to make a motion to suppress any evidence alleged to have been obtained in violation of the defendant’s rights. When such a motion is presented, the burden is upon the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible.

2. In Birchfield v. North Dakota, 136 S.Ct. 2160 (U.S. 2016), the United States Supreme Court determined that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving, as the intrusiveness of blood testing deserves greater protection than the less invasive breath testing when arresting an individual for drunk driving and the warrantless taking of blood is not justified by search incident to arrest.

3. Regarding the implications of the decision in Birchfield as it relates to the statutory implied consent to draw blood that one gives when one is licensed to operate a motor vehicle and the enhanced criminal penalties existing for individuals who refuse to submit to blood testing, the United States Supreme Court indicated that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.

4. The holdings in Birchfield are applicable to the within case even though the enhanced criminal penalties for refusing to submit to blood testing in Pennsylvania are part of the statute criminalizing Driving Under the Influence at 75 Pa.C.S. § 3804 and the statute addressed in Birchfield involved a statute separate from the Driving Under the Influence statute allowing for enhanced criminal penalties for refusing to consent.

5. In reviewing the totality of the circumstances to determine the voluntariness of Defendant’s consent to the blood testing, the Court must consider the defendant’s custodial status, the use of duress or coercive tactics by law enforcement personnel, the defendant’s knowledge of his right to refuse to consent, the defendant’s education and intelligence, the defendant’s belief that no incriminating evidence will be found and the extent and the level of the defendant’s cooperation with law enforcement personnel.

6. In light of the fact that Defendant was transported to the hospital after being placed under arrest for suspicion of Driving Under the Influence and was read warnings from the DL-26 form indicating that failing to consent to have his blood drawn would result in criminal sanctions prior to consenting to the taking of his blood, the Commonwealth failed to establish that Defendant voluntarily consented to the taking of his blood outside of the threat of criminal prosecution if he were to withhold consent.

L.C.C.C.P. No. 38-CR-0001182-2016, Opinion by Samuel A. Kline, Judge, January 9, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION No.: CP-38-CR-1182-2016

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID ALAN LENNON

ORDER

And now, to wit, this 9^th day of January, 2017, upon consideration of the Defendant’s Omnibus Pretrial Motion, the parties’ briefs in support of their respective positions, and the record of the case, the Pretrial Motion to Suppress the blood results is GRANTED.

BY THE COURT:

SAMUEL A. KLINE, J.

APPEARANCES:

Jared Hinsey, Esq. for the Commonwealth

Nicholas Sidelnick, Esq. for the Defendant

OPINION, KLINE, J., January 5, 2017

Before the Court is the Defendant’s Omnibus Pretrial Motion. For the reasons set forth herein, we grant the Pretrial Motion, as specified below.

FACTS AND PROCEDURAL HISTORY

The Defendant is charged with two counts of Driving Under the Influence and two summaries. On September 9, 2016, the Defendant filed an Omnibus Pretrial Motion, by which he sought suppression of the blood draw results. The Defendant contends that he was subjected to an unlawful search and seizure because the blood draw was conducted without a warrant and without valid consent.

A pretrial hearing was held on November 23, 2016. At the hearing the parties stipulated to the facts as presented in the Affidavit of Probable Cause. The parties also stipulated that the DL-26 form was read to the Defendant prior to the blood draw.

The record reflects the following relevant facts. On May 21, 2016, Trooper Justin Prevost (hereinafter “Trooper Prevost”) was on duty in Bethel Township when he observed a black Ford F-350 cross the double yellow line on the road two times at approximately 0159 hours. Trooper Prevost followed the truck as it turned onto Sugar Road and again observed the truck cross the double yellow line. At that time, Trooper Prevost activated his emergency lights and conducted a traffic stop on the truck.

As the vehicle pulled over, Trooper Prevost observed the driver place what looked like a case of beer behind the passenger seat. Upon making contact with the driver, who was identified as the Defendant, Trooper Prevost detected the odor of an intoxicating beverage coming from the Defendant’s breath and person. Trooper Prevost asked the Defendant if he had anything to drink that night, to which the Defendant responded that he had one drink. Trooper Prevost noted that the Defendant’s speech was slurred, his eyes were blood shot and glassy and his pupils were dilated.

Trooper Prevost requested the Defendant to perform Standard Field Sobriety Tests, which the Defendant complied with but informed Trooper Prevost that he had some limitations. After completion of the sobriety tests and taking a Preliminary Breath Test that indicated the presence of alcohol, Trooper Prevost placed the Defendant under arrest for suspicion of Driving Under the Influence. The Defendant was transported to the Good Samaritan Hospital for a blood test. Trooper Prevost read the DL-26 warnings to the Defendant prior to the blood test and the Defendant consented. The blood test resulted in a Blood Alcohol Concentration (hereinafter “BAC”) of 0.121%.

At the conclusion of the hearing, this Court directed the parties to file briefs in support of their respective positions by December 23, 2016 with the case to be continued to the March 2017 trial term. The case is thus before us and ripe for disposition.

DISCUSSION

Pa.R.Crim.P. 581 permits a defendant to “make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant’s rights.” Suppression of evidence is an appropriate type of relief to include in an omnibus pretrial motion. Comment to Pa.R.Crim.P. 578. The burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Com. v. Hamilton, 673 A.2d 915, 916 (Pa. 1996).

Recently, the United States Supreme Court examined and expanded upon its past determinations that the taking of a blood sample or the administration of a breath test is a “search” under the Fourth Amendment of the United States Constitution. Birchfield v. North Dakota, 136 S.Ct. 2160, 2173 (U.S. 2016). In Birchfield, the Supreme Court was tasked with determining whether or not warrantless searches in the form of taking a blood sample or administering a breath test are reasonable under the Fourth Amendment. Id.

After thoroughly analyzing the privacy interests implicated in breath and blood testing and the States’ needs for BAC readings for those arrested for driving under the influence, the Supreme Court determined that “a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” Id. at 2185. In determining this, the Supreme Court stated that the intrusiveness of blood tests deserve greater protection than the less invasive breath testing when arresting an individual for drunk driving. Id. at 2184. In addition, the Supreme Court further stated that “nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement.” Id.

Upon concluding that the warrantless taking of a blood sample is not justified by the search-incident-to-arrest doctrine, the Supreme Court determined the implications of this decision as it relates to “implied consent” to conduct blood draws. Birchfield, 136 S.Ct. at 2185. The Court stated the following regarding implied-consent laws:

It is well established that a search is reasonable when the subject consents, and that sometimes consent to a search need not be express but may be fairly inferred from context. Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.

It is another matter, however, for a State not only to insist upon an intrusive blood test, but also impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

Id. (citations omitted). Finally, and importantly, the Supreme Court concluded that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id. at 2186.

Upon deciding the abovementioned legal conclusions, the Supreme Court set about applying their conclusions to the three cases before it. One of the petitioners, Beylund, had submitted to a blood test after the police informed him that the law required his submission to the blood test. Id. In reversing the North Dakota Supreme Court’s holding that Beylund’s consent was voluntary, the Supreme Court found that “because voluntariness of consent to a search must be determined from the totality of the circumstances, we leave it to the state court on remand to reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.” Id.

Applicability of Birchfield

Preliminarily, it should be noted that the United States Supreme Court’s decision in Birchfield applies to the present matter. The Commonwealth argues that Birchfield does not apply to the case at hand because the implied-consent laws in Birchfield involved separate statutes where enhanced criminal penalties existed for refusing to submit to a blood draw, and in Pennsylvania the enhanced criminal penalties for refusing to submit to a blood draw are part of the actual criminal statute for driving under the influence.

Title 75 section 3804 of the Motor Vehicle Code contains the criminal penalties for refusing a blood test and states the following:

(c) Incapacity; highest blood alcohol; controlled substances.–An individual who violates section 3802(a)(1) and refused testing of blood or breath or an individual who violates section 3802(c) or (d) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 72 consecutive hours;

(ii) pay a fine of not less than $1,000 nor more than $5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 90 days;

(ii) pay a fine of not less than $1,500;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than one year;

(ii) pay a fine of not less than $2,500; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

75 Pa. C.S. § 3804(c) (emphasis added).

The Commonwealth argues that this language does not make refusal to consent to a blood test a criminal offense and due to the fact that Pennsylvania has structured its laws differently than those of North Dakota and Minnesota that the Supreme Court found to be unconstitutional, section 3804(c) of the Motor Vehicle Code is not subject to the same scrutiny. We disagree.

The language of the statute clearly indicates that refusing to consent to a blood test will result in criminal penalties. The distinction the Commonwealth attempts to make is a “distinction without a difference.” The relevant portion of the Birchfield opinion is previously quoted. See supra 4. In that passage, the Supreme Court clearly held that a State cannot insist on an intrusive blood test by virtue of imposing criminal penalties for refusing to consent to said blood test. Consequently, we find that the Supreme Court’s decision in Birchfield is applicable to the matter sub judice and therefore, implicating Section 3804 of the Motor Vehicle Code for its unconstitutional criminal enhancement of the Defendant’s refusal to consent to a warrantless blood test.

Voluntariness of the Consent

This Court is now tasked with determining the voluntariness of the Defendant’s consent to the blood draw by reviewing the totality of all the circumstances, as instructed by the Supreme Court of the United States in Birchfield. As previously mentioned, the Court in Birchfield held that a motorist “cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Therefore, upon our review of this matter, it is imperative that the totality of the circumstances indicate that the Defendant’s consent to the blood draw was based upon more than a threat of possible criminal prosecution for failing to consent to the blood draw.

If consent is given after arrest, the law is clear that “once a defendant is in custody, the voluntariness of his consent to search will not be assumed, but must be proven by the Commonwealth.” Com. v. Newton, 943 A.2d 278, 284 (Pa. Super. 2007). The Pennsylvania Supreme Court determined in Com. v. Cleckley, 738 A.2d 427 (Pa. 1999), that in determining voluntariness of a person’s consent to a search, Article 1, Section 8 of the Pennsylvania Constitution will not provide greater rights than those enunciated by the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), which determined the standard to review a person’s voluntary consent to search under the Fourth Amendment of the United States Constitution. Therefore, Pennsylvania employs a totality of the circumstances review when determining the voluntariness of a consent to search under Article 1, Section 8 of the Pennsylvania Constitution. In Cleckley, the Pennsylvania Supreme Court indicated that the following factors are instructive in reviewing the totality of the circumstances as it relates to an individual’s voluntariness of their consent to search: 1) the defendant’s custodial status; 2) the use of duress or coercive tactics by law enforcement personnel; 3) the defendant’s knowledge of his right to refuse to consent; 4) the defendant’s education and intelligence; 5) the defendant’s belief that no incriminating evidence will be found; and 6) the extent and level of the defendant’s cooperation with the law enforcement personnel. Cleckley, 738 A.2d at 433 n.7.

However, in the matter at hand, the stipulated record is devoid of facts for which this Court could apply to the above referenced factors. Here, the Defendant was transported to the Good Samaritan Hospital upon being placed under arrest for suspicion of DUI. Thereafter, the Defendant consented to a blood draw after being read the DL-26 warnings that included the following language:

3. If you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months. In addition, if you refuse to submit to the chemical test and you are convicted of violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, then, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code. These are the same penalties that would be imposed if you were convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five year in jail and a maximum fine of $10,000.00.

DL-26 form (emphasis added). Clearly, the language of this form that was read to the Defendant, prior to the consenting to the blood draw, fits squarely within the Birchfield decision. The Defendant was warned that failing to consent to the blood draw would result in criminal sanctions. There is no indication in these stipulated facts that the Defendant manifested any voluntariness to consent to the blood draw apart from the coercive effects from the threat of criminal prosecution if consent was not given.

1) For all the aforementioned reasons, the Omnibus Pretrial Motion to Suppress the blood results is granted. We will enter an Order consistent with the foregoing.

 

The Defendant was charged with the following:

75 Pa. C.S. § 3802(b) – High Rate of Alcohol;

75 Pa. C.S. § 3802(a)(1) – General Impairment;

75 Pa. C.S. § 3309(1) – Driving on Roadways laned for Traffic; and

75 Pa. C.S. § 3714(a) – Careless Driving.

2) The Fourth Amendment provides:

The 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, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

U.S. Const. amend. IV.

3) The intrusiveness of blood tests that the Supreme Court was concerned about, centered on the fact that a subject’s skin is pierced and a part of their body is removed and that part of the body may be preserved by the government for uses outside the scope of a simple BAC reading. Birchfield, 136 S.Ct. at 2178.

4) Article 1, Section 8 of the Pennsylvania Constitution states the following:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.