Commonwealth v. Bell, T., Aplt. , 211 A.3d 761 ( 2019 )

[J-103-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 11 MAP 2018
:
Appellee : Appeal from the Order of the Superior
: Court at No. 1490 MDA 2016, dated
: July 19, 2017, Reconsideration
v. : Denied September 26, 2017,
: Reversing the Order of the Court of
: Common Pleas of Lycoming County,
THOMAS S. BELL, : Criminal Division, at No. CP-41-CR-
: 0001098-2015, dated August 19, 2016
Appellant : and Remanding for Sentencing.
:
: SUBMITTED: November 30, 2018
OPINION
JUSTICE DOUGHERTY DECIDED: July 17, 2019
We granted discretionary review to determine whether Section 1547(e) of the
Vehicle Code, 75 Pa.C.S. §1547(e),1 which expressly allows the Commonwealth to
introduce evidence at trial that a defendant charged with Driving Under the Influence
(DUI) refused to submit to chemical testing, violates the Fourth Amendment to the United
1 Section 1547(e) provides, “[i]n any summary proceeding or criminal proceeding in which
the defendant is charged with a violation of [75 Pa.C.S. §3802 (Driving Under the
Influence)] or any other violation of this title arising out of the same action, the fact that
the defendant refused to submit to chemical testing as required by [75 Pa.C.S. §1547(a)
(deeming drivers to have given consent to chemical testing)] may be introduced in
evidence along with other testimony concerning the circumstances of the refusal. No
presumptions shall arise from this evidence but it may be considered along with other
factors concerning the charge.” 75 Pa.C.S. §1547(e).
States Constitution2 or Article I, Section 8 of the Pennsylvania Constitution.3 We conclude
the evidentiary consequence authorized by Section 1547(e) is constitutional.
Accordingly, we affirm the order of the Superior Court.
Following his arrest on suspicion of DUI on May 16, 2015, appellant Thomas Bell
was transported to the Lycoming County DUI Center. N.T. 4/28/16 at 37. At the DUI
Center, Detective Douglas Litwhiler read the PennDOT DL-26 form to appellant and he
refused to submit to a blood test. Id. at 38. Appellant was subsequently charged with
DUI — general impairment, 75 Pa.C.S. §3802(a)(1), and a summary traffic offense for
failing to use required lighting, 75 Pa.C.S. §4302(a)(1).
Appellant filed a pre-trial motion to dismiss arguing he had a constitutional right to
refuse to submit to a warrantless blood test and thus evidence of his refusal should be
suppressed and the DUI charge dismissed. See Appellant’s Motion to Dismiss, 3/8/16 at
5. The trial court denied the motion on April 28, 2016, and appellant proceeded to a
nonjury trial that same day. N.T. 4/28/16 at 6. During trial, Detective Litwhiler testified
regarding appellant’s refusal to submit to blood testing and his assertion he did not want
a needle in his arm because he had previously contracted hepatitis from a hospital needle.
Id. at 38. At the conclusion of trial, appellant was found guilty of all charges.
2 The Fourth Amendment to the United States Constitution states as follows: “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 persons or things to be seized.” U.S. CONST. amend.
IV.
3 Article I, Section 8 of the Pennsylvania Constitution states as follows: “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.” PA. CONST. art. I, §8.
[J-103-2018] - 2
Appellant filed a motion for reconsideration. Appellant specifically argued the
United States Supreme Court’s decision in Birchfield v. North Dakota, __ U.S.__, 136
S. Ct. 2160 (2016),4 precludes states from penalizing DUI defendants for refusing to
submit to warrantless blood testing and, because he was convicted of DUI based on his
refusal, his DUI charge should have been dismissed or, alternatively, he should be
granted a new trial at which evidence of his refusal would be inadmissible. See
Appellant’s Motion for Reconsideration, 7/1/16 at 2. The trial court ruled the matter was
“clearly controlled [by] Birchfield’s main point: a warrantless blood test violates a
defendant’s right to be free from unreasonable searches and he thus has a constitutional
right to refuse it, which refusal cannot provide the basis for him to be convicted of a crime
or otherwise penalized.” Trial Court Op., 8/19/16 at 5 (emphasis omitted). The trial court
ultimately determined appellant was entitled to a new trial because the court had relied
on his refusal as a basis for the DUI conviction. Id.
The Commonwealth filed an interlocutory appeal to the Superior Court pursuant to
Pa.R.A.P. 311(a)(6) (new trial awarded and Commonwealth claims trial court committed
error of law). The Commonwealth argued Birchfield did not alter the admissibility of
refusal evidence to show consciousness of guilt. The Commonwealth noted the Birchfield
Court explicitly stated it had previously approved of “‘implied-consent laws that impose
civil penalties and evidentiary consequences on motorists who refuse to comply . . . and
nothing we say here should be read to cast doubt on them.’” Commonwealth’s Superior
Court Brief at 11 (emphasis omitted), quoting Birchfield, 136 S. Ct. at 2185. The
Commonwealth further contended scenarios involving implied consent are
distinguishable from other situations, such as an individual’s refusal to consent to a
4Birchfield was decided on June 23, 2016, after appellant’s April 2016 trial and his March
2016 pre-trial motion to dismiss.
[J-103-2018] - 3
warrantless search of his home, where such refusal would be inadmissible at trial. Id. at
13. Appellant responded that Birchfield created a constitutional right to refuse a
warrantless blood test and the admission of his refusal was improper as it penalized him
for exercising this constitutional right. Appellant’s Superior Court Brief at 4.
A three-judge panel of the Superior Court reversed the trial court’s order granting
appellant a new trial and remanded the case for sentencing. Commonwealth v. Bell, 167
A.3d 744, 750 (Pa. Super. 2017). The panel reviewed Pennsylvania’s implied consent
statute, 75 Pa.C.S. §1547, as well as case law in which both the United States Supreme
Court and the Superior Court stated motorists suspected of drunk driving have no
constitutional right to refuse chemical testing. Bell, 167 A.3d at 748-49, discussing South
Dakota v. Neville, 459 U.S. 553 (1983) and Commonwealth v. Graham, 703 A.2d 510
(Pa. Super. 1997). Based on this precedent, the panel held appellant had no
constitutional right to refuse a blood test and it was constitutionally permissible for the
Commonwealth to introduce evidence of such refusal at his trial. Id. at 749.
The panel further held the trial court’s reliance on Birchfield for the opposite
conclusion was misplaced, finding the decision did not support the assertion appellant
had a constitutional right to refuse chemical testing and thus did not change the analysis
applied by the courts in Neville and Graham. Instead, the panel agreed with the
Commonwealth, concluding although the Birchfield Court ultimately held it was
unreasonable for implied consent laws to impose criminal penalties for refusals, the Court
“express[ed] approval of the imposition of civil penalties and evidentiary consequences
on motorists who refuse to comply with chemical testing upon their arrest[.]” Id. at 750,
citing Birchfield, 136 S. Ct. at 2185. Based on the Supreme Court’s approval of evidentiary
consequences set forth in implied consent laws such as Pennsylvania’s statute, the
[J-103-2018] - 4
Superior Court held appellant’s refusal was properly admitted into evidence and thus he
was not entitled to a new trial. Id.
We accepted review to consider the following question raised by appellant:
“Whether §1547(e) of the Vehicle Code, 75 Pa.C.S. §1547(e), is violative of Article 1
Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United
States Constitution to the extent that it permits evidence of an arrestee's refusal to submit
a sample of blood for testing without a search warrant as proof of consciousness of guilt
at the arrestee’s trial on a charge of DUI?” Commonwealth v. Bell, 183 A.3d 978 (Pa.
2018) (per curiam). As we are presented with a question of law, our scope of review is
plenary and non-deferential. Commonwealth v. Ali, 149 A.3d 29, 34 (Pa. 2016).
Appellant contends Missouri v. McNealy, 569 U.S. 141 (2013), which rejected a
per se exigent circumstances exception to the warrant requirement for blood testing
based on dissipation of blood alcohol content (BAC), and Birchfield, which rejected a
search incident to arrest exception to the warrant requirement for blood testing, make
clear that DUI suspects have a Fourth Amendment right to refuse warrantless blood
testing. Appellant’s Brief at 7-8. Appellant submits the cases relied on by the Superior
Court, Neville and Graham, are inapposite as those decisions were based on a Fifth
Amendment5 analysis and were decided when it was still viewed as constitutionally
permissible to conduct blood testing without first securing a warrant. Id. at 8-9. According
to appellant, since Birchfield declared a Fourth Amendment right to be free from
warrantless blood testing, we must follow the law as stated in Commonwealth v. Welch,
585 A.2d 517 (Pa. Super. 1991), which held a defendant’s refusal of a warrantless search
of her bedroom could not be used as evidence of consciousness of guilt. Appellant’s Brief
5 The Fifth Amendment to the United States Constitution states, in relevant part, as
follows: “No person shall . . . be compelled in any criminal case to be a witness against
himself[.]” U.S. CONST. amend. V.
[J-103-2018] - 5
at 9, citing Welch, 585 A.2d at 520. In further support of this proposition, appellant cites
Commonwealth v. Chapman, 136 A.3d 126 (Pa. 2016), in which this Court held a
defendant’s refusal to submit to a warrantless blood test for DNA purposes was
inadmissible to demonstrate consciousness of guilt. Appellant’s Brief at 15, citing
Chapman, 136 A.3d at 131.
Appellant further argues the language in Birchfield pertaining to evidentiary
consequences was dicta and does not require a different result here. Id. at 10, citing Trial
Court Op., 8/19/16 at 4. Appellant contends the issue in Birchfield was whether DUI
defendants may be “‘convicted of a crime or otherwise penalized’” for their refusal and it
is clear that allowing the Commonwealth to introduce his refusal into evidence penalized
him by providing a basis for his conviction. Id. (emphasis omitted), quoting Birchfield, 136
S. Ct. at 2172. Additionally, appellant argues our decision in Commonwealth v. Myers,
164 A.3d 1162 (Pa. 2017) (plurality) held the Pennsylvania implied consent statute does
not establish an exception to the warrant requirement and the Commonwealth is required
to prove there was voluntary consent given prior to the extraction of blood. Id. at 11.
Appellant requests we expand the holding in Myers — which involved an unconscious
DUI suspect — to conscious individuals and hold there is a Fourth Amendment right to
refuse warrantless blood testing. Id.
Appellant alternatively requests we hold there is an independent right to refuse a
warrantless blood test under Article I, Section 8 of the Pennsylvania Constitution, and that
Section 1547(e) violates it. Id. at 12-14, citing Commonwealth v. Edmunds, 586 A.2d 887
(Pa. 1991). Appellant contends although the text of Article I, Section 8 is very similar to
that of the Fourth Amendment, this Court has held Article I, Section 8 to be more
protective. Id. at 12, citing, e.g., Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994).
Relative to his claim herein, appellant maintains this Court has continuously held the
[J-103-2018] - 6
search of a person involves greater intrusion upon privacy interests than the search of a
thing. Id. at 13, citing Theodore v. Delaware Valley Sch. Dist., 836 A.2d 76, 89 (Pa. 2003).
Appellant observes no other jurisdiction has addressed the admissibility of refusal
evidence utilizing a state constitutional analysis. Id. Appellant argues this Court should
hold, as a matter of public policy, the severity of the drunk driving problem does not
outweigh individual privacy rights, and police may use breath tests or their own
observations to prove DUI cases without violating those rights. Id. at 13-14.6
In response, the Commonwealth asserts the United States Supreme Court has
consistently approved of implied consent laws like Pennsylvania’s statute.
Commonwealth’s Brief at 6-8, citing Schmerber v. California, 384 U.S. 757 (1966)
(holding admission of blood test evidence does not violate Fifth Amendment) and Neville,
supra (holding admission of refusal evidence does not violate Fifth Amendment). The
Commonwealth further asserts Pennsylvania courts have consistently upheld Section
1547. Id. at 8-9, citing Commonwealth v. Stair, 699 A.2d 1250 (Pa. 1997) (Opinion in
Support of Affirmance) (holding no constitutional right to refuse chemical testing) and
Graham, supra (holding admission of refusal evidence does not violate United States
Constitution). Based on this precedent, the Commonwealth argues there is no
constitutional right to refuse blood testing in the DUI context and the general rule proffered
in Welch regarding a completely separate situation — i.e., evidence of a refusal to consent
to a warrantless search of a bedroom is inadmissible for purposes of demonstrating
consciousness of guilt — does not apply here. Id. at 9. To bolster this argument, the
Commonwealth points to Chapman, where this Court specifically stated “‘the admission
of evidence of a refusal to consent to a warrantless search to demonstrate consciousness
6 The Defender Association of Philadelphia and the Pennsylvania Association of Criminal
Defense Lawyers filed an amicus curiae brief in which they present arguments similar to
those presented by appellant.
[J-103-2018] - 7
of guilt is problematic, as most jurisdictions hold (outside the context of implied-
consent scenarios) that such admission unacceptably burdens an accused’s right to
refuse consent.’” Id. at 9-10 (emphasis in original), quoting Chapman, 136 A.3d at 131.
The Commonwealth contends the implied consent law is the distinguishing factor
between Welch and the case at hand, observing “Welch had not agreed (by undertaking
to engage in a civil privilege such as operating a motor vehicle) to accept an ultimatum
pursuant to which she would either consent to a search or accept non-criminal
consequences of a refusal to so consent.” Id. at 10. The Commonwealth explains “[a]
motorist asked to consent to a blood test is not in the same position as Welch, and is not
being penalized for exercising a constitutional right. Rather . . . the motorist is subjected
to evidentiary consequences for exercising his statutory choice to refuse a chemical test,
the non-criminal consequences of which he has already agreed to[.]” Id. (emphasis in
original). The Commonwealth further asserts our recent decision in Myers supports this
distinction as the lead opinion stated “Pennsylvania’s implied consent statute ‘imposes
an ultimatum upon the arrestee, who must choose either to submit to a requested
chemical test or to face the consequences that follow from the refusal to do so.’” Id. at
11, quoting Myers, 164 A.3d at 1177 (plurality).
The Commonwealth additionally contends the decisions in McNeely and Birchfield
support the continued validity of Section 1547(e). The Commonwealth observes the
McNeely Court, in rejecting a per se exigency rule, recognized “‘[s]tates have a broad
range of legal tools to enforce their drunk-driving laws and to secure BAC evidence,’
including ‘allow[ing] the motorist’s refusal to take a BAC test to be used as evidence
against him[.]’” Id. at 12, quoting McNeely, 569 U.S. at 160-61. And, the Commonwealth
notes the Birchfield Court “confirmed its approval of non-criminal consequences related
to implied consent laws” by stating “‘[o]ur prior opinions have referred approvingly to the
[J-103-2018] - 8
general concept of implied-consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply . . . and nothing we say here should be
read to cast doubt on them.’” Id. at 13-14 (emphasis omitted), quoting Birchfield, 136
S. Ct. at 2185. Accordingly, the Commonwealth asserts the evidentiary consequences for
a refusal to submit to blood testing remain permissible under the Fourth Amendment post-
Birchfield. Id. at 14.
With regard to appellant’s alternative Article I, Section 8 argument, the
Commonwealth contends it is waived because appellant never raised it in the lower
courts. Id. at 15-19. The Commonwealth also argues appellant’s Article I, Section 8 claim
should be deemed waived because he failed to adequately develop the issue in his brief
to this Court. Id. at 19-21.
The Commonwealth nevertheless presents an Edmunds analysis and asks this
Court to conclude Article I, Section 8 provides no greater protections than the Fourth
Amendment in the context of this case. The Commonwealth agrees the text of Article I,
Section 8 is similar to that of the Fourth Amendment and that this Court has found
independent rights guaranteed by Article I, Section 8 on privacy grounds. Id. at 22-24,
citing Theodore, 836 A.2d at 88. However, the Commonwealth maintains Pennsylvania
courts have had numerous opportunities to consider implied consent in the search and
seizure context and have consistently aligned with the High Court’s decisions. Id. at 24-
25. In fact, the Commonwealth contends, in no case has a Pennsylvania court suggested
Article I, Section 8 provides greater protections in the implied consent context, and our
courts have instead referred to “‘the Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution’ together[,]” which suggests they
are coterminous in this context. Id. at 25, quoting Myers, 164 A.3d at 1167.
[J-103-2018] - 9
The Commonwealth recognizes that no state court has ruled upon the admissibility
of refusal evidence in the implied consent context using a state constitutional analysis,
but points to several state court decisions that have applied a post-Birchfield Fourth
Amendment analysis to hold “a defendant’s refusal to submit to a chemical test of blood
in the implied consent context may be constitutionally admitted into evidence at trial.” Id.
at 26. Specifically, the Commonwealth cites to an en banc Colorado Supreme Court
decision concluding Birchfield was distinguishable from cases involving the admissibility
of refusal evidence, id. at 26-27, citing Fitzgerald v. People, 394 P.3d 671, 675-76 (Colo.
2017), and a Vermont Supreme Court decision holding “‘criminalizing the revocation of
implied consent crosses the line in terms of impermissibly burdening the Fourth
Amendment . . . [b]ut allowing evidence of a refusal to submit to a blood test in the context
of a DUI prosecution does not warrant the same constitutional protection.’” Id. at 28,
quoting State v. Rajda, 196 A.3d 1108, 1121 (Vt. 2018).
Regarding public policy, the Commonwealth argues Section 1547(e) does not
infringe upon privacy rights as the subsection applies only when a motorist invokes his
statutory right to refuse a blood test. Id. at 30. Where no blood test takes place, the
Commonwealth maintains, the motorist’s privacy has not been invaded. Id. The
Commonwealth further argues the inability to present refusal evidence at trial would
prejudice DUI prosecutions because the jury will expect evidence of BAC or an
explanation for its absence. Id. at 31-32. Lastly, the Commonwealth contends it is vital
for it to possess non-criminal means, such as the admissibility of refusal evidence, to
encourage motorists to comply with requests for chemical testing. Id. at 32-34.7
7The Pennsylvania District Attorney’s Association filed an amicus curiae brief in which it
presents arguments similar to those presented by the Commonwealth.
[J-103-2018] - 10
Preliminarily, we agree with the Commonwealth that appellant’s current claim
Section 1547(e) violates Article I, Section 8 is waived. Although appellant stated in his
pre-trial motion to dismiss “Pennsylvania’s Implied Consent Law violates Article 1, Section
8 of the Pennsylvania Constitution and the Fourth Amendment to the United States
Constitution[,]” Appellant’s Motion to Dismiss, 3/8/16 at 2, he failed at that time to develop
an argument that the Pennsylvania Constitution provided any independent grounds for
relief. Furthermore, in his post-trial motion for reconsideration, appellant did not reference
Article I, Section 8 at all, but only stated Birchfield provided him with a “constitutional right
to refuse testing of blood[.]” Appellant’s Motion for Reconsideration, 7/1/16 at 2. Although
appellant includes a brief and cursory Edmunds analysis in his brief to this Court, it is the
first time he has suggested that Article I, Section 8 provides an independent basis for
relief. See Appellant’s Brief at 12-14. As appellant failed to preserve his Article I, Section
8 claim we decline to consider it. See Commonwealth v. Chamberlain, 30 A.3d 381, 405
(Pa. 2011) (declining to consider whether state constitution departed from federal
counterpart where argument was not directly advanced in lower courts); Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the first time on
appeal”). We therefore limit our review to appellant’s argument Section 1547(e) violates
his rights under the Fourth Amendment.8
8 Neither appellant’s failure to develop an Edmunds analysis in the trial court nor his failure
to reference Article I, Section 8 in his motion for reconsideration is the basis upon which
we find waiver. Instead, we find waiver on the same basis as did the Court in Chamberlain
— appellant “did not claim before the trial court that the Pennsylvania Constitution
provided an independent basis for relief.” Chamberlain, 30 A.3d at 405; see also id. at
406 (“We decline to consider whether state due process should depart from federal due
process with regard to missing evidence where this argument was not directly
advanced in the court below.”) (emphasis added). Although we recognize appellant
stated in his motion to dismiss that “Pennsylvania’s Implied Consent Law violates Article
1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United
States Constitution[,]” see Appellant’s Motion to Dismiss, 3/8/16 at 2, appellant failed to
directly advance any argument regarding whether the clauses differed. We find the
[J-103-2018] - 11
The Fourth Amendment to the United States Constitution provides, in relevant part,
“[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[.]” U.S. CONST.
amend. IV. It has long been established that a blood draw for purposes of determining
BAC constitutes a search under the Fourth Amendment. Schmerber, 384 U.S. at 767.
As such, the pertinent question under a Fourth Amendment analysis is whether such a
search is reasonable. Birchfield, 136 S. Ct. at 2173. Generally, in order for a search to
be reasonable, the Fourth Amendment requires that police obtain a warrant, supported
by probable cause and issued by a neutral magistrate, prior to searching an individual or
his property. Commonwealth v. Arter, 151 A.3d 149, 153 (Pa. 2016). Although searches
conducted without a warrant are presumed to be unreasonable, there are exceptions to
this rule, including searches conducted with the consent of the individual whose person
or property is being searched. Commonwealth v. Wilmer, 194 A.3d 564, 567-68 (Pa.
2018).
In order to combat the dangers of drunk driving, states, including Pennsylvania,
have enacted laws which criminalize driving with a BAC that exceeds a certain level.
Birchfield, 136 S. Ct. at 2166. Blood testing is necessary to determine a motorist’s BAC
but those suspected of DUI routinely decline to submit to testing when given the option.
Id. Accordingly, states have also enacted implied consent laws, which impose penalties
on motorists who refuse to undergo BAC testing. Id. These laws are based on the notion
current situation to be akin to cases where this Court has repeatedly stated general claims
under the state and federal constitutions do not present independent questions of state
constitutional law. See e.g., Commonwealth v. Lagenella, 83 A.3d 94, 99 n.3 (Pa. 2013);
Commonwealth v. Galvin, 985 A.2d 783, 793 n.15 (Pa. 2009); Commonwealth v. Starr,
664 A.2d 1326, 1334 n.6 (Pa. 1995). Lastly, the fact that the question granted for review
in this case included appellant’s claim under Article I, Section 8, see Commonwealth v.
Bell, 183 A.3d 978 (Pa. 2018) (per curiam), does not preclude us from ultimately finding
the claim waived. See Commonwealth v. Metz, 633 A.2d 125, 126 (Pa. 1993) (declining
to address an issue upon which allocatur was granted due to waiver).
[J-103-2018] - 12
that driving is a privilege rather than a fundamental right. PennDOT v. Scott, 684 A.2d
539, 544 (Pa. 1996). When partaking in the privilege of driving on Pennsylvania’s roads,
motorists must comply with Pennsylvania’s implied consent statute, 75 Pa.C.S. §1547.
The version of the implied consent statute in effect at the time of appellant’s arrest
provided, in relevant part, as follows:
Any person who drives, operates or is in actual physical control of the
movement of a 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 vehicle:
(1) in violation of . . . [75 Pa.C.S. §] 3802 (relating to driving
under influence of alcohol or controlled substance)[.]
Former 75 Pa.C.S. §1547(a)(1).9
Section 1547 also sets forth penalties for motorists who were arrested on suspicion
of DUI and refused to submit to chemical testing. These penalties include requiring
PennDOT to suspend the motorist’s license for at least one year, see 75 Pa.C.S.
§1547(b)(1),10 and the penalty at issue here: expressly allowing evidence of the motorist’s
9 We refer in this opinion to the version of Section 1547(a) in effect at the time of
appellant’s arrest as former 75 Pa.C.S. §1547(a). The full citation for this version is as
follows: Act of June 17, 1976, P.L. 162, No. 81, §1, amended December 15, 1982, P.L.
1268, No. 289, §5, amended February 12, 1984, P.L. 53, No. 12, §2, amended May 30,
1990, P.L. 173, No. 42, §5, amended December 18, 1992, P.L. 1411, No. 174, §6,
amended July 2, 1996, P.L. 535, No. 93, §1, amended July 11, 1996, P.L. 660, No. 115,
§8, amended December 21, 1998, P.L. 1126, No. 151, §18, amended October 4, 2002,
P.L. 845, No. 123, §3, amended September 30, 2003, P.L. 120, No. 24, §9.1, 10,
amended November 29, 2004, P.L. 1369, No. 177, §2, amended May 11, 2006, P.L. 164,
No. 40, §2, former 75 Pa.C.S. §1547(a). Subsection (a) was amended in the wake of the
Birchfield decision. However, subsections (b) and (e) remained unchanged following the
amendments.
10Section 1547(b) also requires police officers to inform motorists that their refusal would
subject them to enhanced criminal penalties if convicted of DUI. See 75 Pa.C.S.
§1547(b)(2)(ii). Such penalties were held to be unconstitutional in Birchfield. In this case,
appellant challenges the constitutionality of Section 1547(e) only and, in any event, the
[J-103-2018] - 13
refusal to be admitted at his subsequent criminal trial on DUI charges. See 75 Pa.C.S.
§1547(e). Section 1547(e) provides as follows:
In any summary proceeding or criminal proceeding in which the defendant
is charged with a violation of [75 Pa.C.S. §]3802 or any other violation of
this title arising out of the same action, the fact that the defendant refused
to submit to chemical testing as required by subsection (a) may be
introduced in evidence along with other testimony concerning the
circumstances of the refusal. No presumptions shall arise from this
evidence but it may be considered along with other factors concerning the
charge.
75 Pa.C.S. §1547(e).
With this statutory framework in mind, we now review the relevant jurisprudence
surrounding warrantless blood testing in the context of DUI arrests. In Schmerber, the
United States Supreme Court considered whether use of the results of a DUI defendant’s
warrantless blood test as evidence at his trial violated, inter alia, the Fourth and Fifth
Amendments. 384 U.S. at 759. The High Court reasoned the results of the blood test
were not testimonial in nature and thus did not constitute compelled self-incrimination in
violation of the Fifth Amendment. Id. at 760-65. The Court also denied the defendant’s
Fourth Amendment claim, concluding it was reasonable for the officer to conduct a
warrantless blood test based on exigent circumstances, namely that the defendant was
rushed to the hospital, the officer had to investigate the scene of the accident before
arriving at the hospital to make the blood draw, and the amount of alcohol in the
defendant’s blood would have begun to dissipate had the officer first sought a warrant.
Id. at 766-72.
The Court later decided Neville, which presented the question of whether the trial
court’s admission of a DUI defendant’s refusal to submit to a warrantless blood test
Commonwealth has previously conceded that appellant cannot be subject to enhanced
criminal penalties based on his refusal when this case proceeds to sentencing. See Trial
Court Op., 8/19/16 at 2.
[J-103-2018] - 14
violated his rights under the Fifth Amendment. 459 U.S. at 554. The defendant’s refusal
was admitted into evidence by way of a South Dakota implied consent statute which
permitted motorists to refuse the test, but penalized such refusal by revoking their driving
licenses for one year and allowing evidence of their refusal to be used against them at
trial. Id. at 559-60. The Neville Court ultimately held the admission of refusal evidence
did not violate the Fifth Amendment because the defendant had not been coerced into
refusing the test, but instead was given a choice between submitting to the test or
accepting the consequences of refusing the test. Id. at 562-63. In doing so, the Court
recognized the state would prefer the defendant choose to submit to the test as actual
BAC evidence which exceeds lawful limits is far stronger evidence of guilt than refusal
evidence. Id. at 564. As the refusal was not coerced, the Court held its admission into
evidence was not barred by the Fifth Amendment right against self-incrimination. Id. The
Court additionally held the officer’s failure to warn the defendant that his refusal could be
used against him at trial did not violate his due process rights. Id. at 564-66.
The legal landscape regarding warrantless blood tests changed with McNeely, in
which a DUI defendant challenged the admission of his BAC results where he had refused
to submit to a breath test and was then transported to a hospital where a warrantless
blood draw was performed without his consent. 569 U.S. at 145-47. The Court held
suppression of the blood test results was proper because the warrantless blood test
violated the defendant’s Fourth Amendment rights. Id. at 164-65. The Court rejected
Missouri’s argument there should be a per se rule allowing warrantless blood tests in all
DUI cases, based on the alleged automatic exigency arising from the natural dissipation
of alcohol in the bloodstream. Id. at 151-56. Instead, the Court continued to follow
Schmerber and held whether a warrantless blood test is reasonable based on exigent
circumstances must be determined by viewing the totality of the circumstances of each
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particular case. Id. at 156. In support of this conclusion, a plurality of the Court noted
states have other tools to enforce drunk driving laws and to secure BAC evidence, that
presumably do not implicate Fourth Amendment concerns. Id. at 160-61 (plurality).
Included in these tools, the plurality expressly recognized, are “implied consent laws that
require motorists, as a condition of operating a motor vehicle within the State, to consent
to BAC testing if they are arrested . . . on suspicion of a drunk-driving offense” and “[s]uch
laws impose significant consequences when a motorist withdraws consent[,]” including
“allow[ing] the motorist’s refusal to take a BAC test to be used as evidence against him in
a subsequent criminal prosecution.” Id. at 161 (plurality).
The Court then decided Birchfield. In the introduction to its opinion, the Court noted
the penalties for refusing chemical testing in early implied consent laws were suspension
or revocation of a motorist’s license and allowing evidence of a motorist’s refusal to be
admitted in a subsequent trial. 136 S. Ct. at 2169. The Court also observed that, more
recently, in an effort to further strengthen drunk driving laws, states began imposing
criminal penalties on motorists who refuse to submit to chemical testing. Id. Birchfield
squarely presented the question of whether compelling motorists to submit to warrantless
breath or blood tests on pain of criminal consequences violates the Fourth Amendment.
Id. at 2172.
In deciding this question, the High Court first considered whether the search of a
DUI suspect’s blood or breath was exempted from the warrant requirement as a search
incident to arrest. Id. at 2174-84. After an assessment of “the effect of BAC tests on
privacy interests and the need for such tests,” the Court concluded “the Fourth
Amendment permits warrantless breath tests incident to arrests for drunk driving”
because “[t]he impact of breath tests on privacy is slight, and the need for BAC testing is
great.” Id. at 2184. However, the Court reached “a different conclusion with respect to
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blood tests[,]” concluding “[b]lood tests are significantly more intrusive,” “their
reasonableness must be judged in light of the availability of the less invasive alternative
of a breath test[,]” and there is no “justification for demanding the more intrusive
alternative without a warrant.” Id.
The Court next considered whether the implied consent statute at issue satisfied
the consent exception to the warrant requirement. Id. at 2185-87. The Court recognized
its “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 . . . and nothing we say here should be read to cast doubt on them.” Id. at
2185, citing McNeely, 569 U.S. at 160-62; Neville, 459 U.S. at 560. However, the High
Court held “[t]here 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” and “motorists cannot
be deemed to have consented to submit to a blood test on pain of committing a criminal
offense.” Id. at 2185-86.
Following Birchfield, this Court decided Myers. In Myers, police officers arrested
a motorist for DUI and transported him to the hospital as they believed he was so severely
intoxicated he required medical attention. 164 A.3d at 1165. Notwithstanding the fact
that medical treatment at the hospital rendered the DUI suspect unconscious, a police
officer read out the PennDOT DL-26 form in his presence and instructed hospital
personnel to draw blood from him for purposes of securing BAC evidence. Id. This Court
affirmed suppression of the blood test results, holding a blood draw from an unconscious
DUI suspect violates the dictates of Pennsylvania’s implied consent law as Section
1547(b)(1) provides an absolute right to refuse chemical testing, and an unconscious
individual is unable to exercise that right. Id. at 1172. A majority of the Court also held,
albeit without complete agreement as to reasoning, that a warrantless blood draw from
[J-103-2018] - 17
an unconscious DUI suspect violates the Fourth Amendment. Id. at 1173-82 (plurality);
1183-84 (Saylor, C.J., concurring).
The United States Supreme Court’s decisions in McNeely and Birchfield and this
Court’s decision in Myers indicate a warrantless blood test, which is conducted when no
exceptions to the warrant requirement apply, violates the Fourth Amendment rights of a
motorist suspected of DUI. Outside the implied consent context, such a violation would
trigger the application of Welch and a refusal to submit to the warrantless blood test would
be inadmissible at any subsequent trial on the DUI charges. See Welch, 585 A.2d at 520
(defendant’s refusal of a warrantless search of her bedroom could not be used as
evidence of consciousness of guilt). However, we agree with the Commonwealth that the
Pennsylvania implied consent statute is the distinguishing factor between Welch and the
case at hand. See Chapman, 136 A.3d at 131 (“the admission of evidence of a refusal
to consent to a warrantless search to demonstrate consciousness of guilt is problematic,
as most jurisdictions hold (outside the context of implied-consent scenarios) that such
admission unacceptably burdens an accused’s right to refuse consent”) (emphasis
added). As the Commonwealth aptly states, unlike the defendant in Welch, appellant
“agreed (by undertaking to engage in a civil privilege such as operating a motor vehicle)
to accept an ultimatum pursuant to which [he] would either consent to a search or accept
non-criminal consequences of a refusal to so consent.” Commonwealth’s Brief at 10.
Indeed, as the Myers plurality recognized, implied consent laws “authorize a police
officer to request a motorist’s submission to a chemical test, at which point the motorist
must choose either (a) to comply with the test or (b) to refuse and accept the
consequences that accompany refusal.” 164 A.3d at 1174 (plurality). The choice may
well be a difficult one, but this alone does not invalidate the “implied consent” created by
the statute. See Jenkins v. Anderson, 447 U.S. 231, 236 (1980) (“the Constitution does
[J-103-2018] - 18
not forbid ‘every government-imposed choice in the criminal process that has the effect
of discouraging the exercise of constitutional rights’”), quoting Chaffin v. Stynchcombe,
412 U.S. 17, 30 (1973). As implied by Birchfield, the pertinent question in determining
the constitutionality of a statute demanding this particular choice is whether the
consequence for refusing a warrantless blood test undermines the inference that the
motorist implicitly consented to it, and suggests instead that the “search” was coerced.11,12
11 This question fully encompasses the threshold issue in Jenkins and Chaffin and our
analysis below answers it. Jenkins, 447 U.S. at 236 (“The ‘threshold question is whether
compelling the election impairs to an appreciable extent any of the policies behind the
rights involved.’”), quoting Chaffin, 412 U.S. at 32. As seen infra, we disagree with the
dissent’s assertion that “[t]he sole purpose of the implied consent law’s consequences of
refusal is to induce a motorist’s compliance with chemical testing.” Dissenting Opinion,
slip op. at 21 n.6. See also id. at 29 (“the ‘only objective’ of this practice is to ‘discourage
the assertion’ of that constitutional right”), quoting Chaffin, 412 U.S. at 32 n.20. Indeed,
the consequence at issue here — allowing evidence of a motorist’s refusal at his
subsequent trial for DUI — does not solely punish a defendant but also has a legitimate
purpose, just as the consequence at issue in Jenkins. See Jenkins, 447 U.S. at 238
(impeachment evidence has the legitimate purpose of “advanc[ing] the truth-finding
function of the criminal trial”). As stated below, the admission of refusal evidence “furthers
the reliability of the criminal process and its truth-seeking function by allowing the jurors
to understand why the State is not submitting an evidentiary test in a DUI prosecution.”
Rajda, 196 A.3d at 1120. Surely, it cannot be said that the sole purpose of the admission
of refusal evidence “is to induce a motorist’s compliance with chemical testing.”
Dissenting Opinion, slip op. at 21 n.6.
12 The dissent criticizes our decision not to address the High Court’s jurisprudence
regarding the unconstitutional conditions doctrine and the penalization of the exercise of
constitutional rights. See Dissenting Opinion, slip op. at 14-15 n.4, 19 & n.5, 20. Although
appellant may have raised the unconstitutional conditions doctrine in his motion to dismiss
before the trial court, see Appellant’s Motion to Dismiss, 3/8/16 at 2 (“Pennsylvania’s
Implied Consent Law violates Article 1, Section 8 of the Pennsylvania Constitution and
the Fourth Amendment to the United States Constitution under the Unconstitutional
Conditions Doctrine”), we decline to address the doctrine here because appellant himself,
in his brief to this Court, does not discuss the doctrine or its potential application to his
case, nor does he cite to any of the High Court’s cases discussing the penalization of
constitutional rights, but instead cites solely to the distinguishable cases of Chapman and
Welch. Furthermore, we take considerable issue with Justice Wecht’s spurious assertion
that we prefer “to set a dangerous and unfounded precedent suggesting that the universe
[J-103-2018] - 19
Our view on this point is substantially aligned with that of the Supreme Court of
Vermont. When deciding an issue identical to the one at hand, the court opined:
As the [Birchfield] Court suggested . . . the admission of evidence of a
refusal to submit to a blood draw is a qualitatively different consequence
with respect to its burden on the Fourth Amendment. Criminalizing refusal
places far more pressure on defendants to submit to the blood test —
thereby impermissibly burdening the constitutionally protected right not to
submit to the test — than merely allowing evidence of the refusal at a
criminal DUI trial, where a defendant can explain the basis for the refusal
and the jury can consider the defendant’s explanation for doing so.
Moreover, the admission of refusal evidence in the context of a DUI
proceeding, without directly burdening the privacy interest protected by the
Fourth Amendment, furthers the reliability of the criminal process and its
truth-seeking function by allowing the jurors to understand why the State is
not submitting an evidentiary test in a DUI prosecution.
of applicable law is limited to the Table of Citations section of an appellant’s brief.” See
Dissenting Opinion, slip op. at 20. Of course we are not limiting our review. Instead, we
apply the longstanding principle that courts should not act as advocates at the risk of
depriving the parties the opportunity to be heard. Yount v. DOC, 966 A.2d 1115, 1119
(Pa. 2009), citing Luitweiler v. Northchester Corp., 319 A.2d 899, 901 n.5 (Pa. 1974).
Indeed, the Commonwealth here had no opportunity to present advocacy to this Court as
to whether the unconstitutional conditions doctrine is implicated because the words
“unconstitutional conditions doctrine” do not even appear in appellant’s brief.
In any event, we find the unconstitutional conditions doctrine is inapplicable here as the
implied consent law does not condition the privilege of driving upon a motorist’s
submission to future warrantless blood testing. Indeed, as stated previously, Section
1547(b)(2) provides an absolute right to refuse all chemical testing. See Myers, 164 A.3d
at 1172. The fact that certain consequences arise from a motorist’s refusal to submit to
chemical testing, including the evidentiary consequence presently at issue, does not
render the implied consent statute unconstitutional. The lead opinion in Myers, authored
by Justice Wecht, who takes a dissenting position here, recognized as much by stating:
“[t]he statute does not authorize police officers to seize bodily fluids without an arrestee’s
permission. Instead, it imposes an ultimatum upon the arrestee, who must choose either
to submit to a requested chemical test or to face the consequences that follow from the
refusal to do so.” Id. at 1177; see also Jenkins, 447 U.S. at 236 (“the Constitution does
not forbid ‘every government-imposed choice in the criminal process that has the effect
of discouraging the exercise of constitutional rights’”), quoting Chaffin, 412 U.S. at 30.
[J-103-2018] - 20
The implied consent statute establishes a bargain in which, in exchange for
the privilege of engaging in the potentially dangerous activity of operating a
motor vehicle on the highway, motorists impliedly consent to testing for
impaired driving to protect the public. The critical question is whether civil
or criminal sanctions resulting from motorists’ revocation of their implied
consent unconstitutionally coerce them to submit to testing. In Birchfield,
the U.S. Supreme Court has ruled, with respect to the more invasive blood
test, that only criminalizing the revocation of implied consent crosses the
line in terms of impermissibly burdening the Fourth Amendment.
But allowing evidence of a refusal to submit to a blood test in the context of
a DUI prosecution does not warrant the same constitutional protection. The
speculative conclusion that a citizen will consent to a search that he or she
would otherwise resist solely to avoid evidentiary implications at a possible
future trial seems too attenuated to meet the U.S. Supreme Court’s test in
practice. Indeed, as the Court in Birchfield pointed out, states began
criminalizing refusals because the other civil and evidentiary consequences
provided an insufficient incentive for motorists — most particularly repeat
DUI offenders — to submit to testing.
Rajda, 196 A.3d at 1120-21 (internal footnotes, quotations, brackets, and citations
omitted). Like the Vermont Supreme Court, and following Birchfield, we focus our
analysis on the nature of the consequences permitted by Pennsylvania’s implied consent
statute.
Undeniably, the Birchfield Court rejected criminal prosecution as a valid
consequence for refusing a warrantless blood test by stating “motorists cannot be
deemed to have consented to submit to a blood test on pain of committing a criminal
offense.” 136 S. Ct. at 2186. At the same time, the Court did not back away from its prior
approval of other kinds of consequences for refusal, such as “evidentiary consequences.”
Id. at 2185 (“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. Petitioners do not question the constitutionality of those
laws, and nothing we say here should be read to cast doubt on them.”) (internal citations
omitted).13 Moreover, the Birchfield Court cited to the McNeely plurality which provided
13The Supreme Court of the United States recently decided the Birchfield-related case of
Mitchell v. Wisconsin, ___ U.S. ___, 139 S. Ct. 2525 (2019) (plurality), in which the
[J-103-2018] - 21
a general endorsement of the evidentiary consequence at issue in this case — evidence
of a refusal being admitted at a DUI suspect’s trial. Id. at 2185, citing McNeely, 569 U.S.
at 161 (implied consent laws “impose significant consequences when a motorist
withdraws consent; typically the motorist’s driver’s license is immediately suspended or
revoked, and most [s]tates allow the motorist’s refusal to take a BAC test to be used as
evidence against him in a subsequent criminal prosecution”). Finally, the Birchfield Court
also cited Neville, which approved of admitting refusal evidence in a DUI trial, albeit in the
context of a Fifth Amendment challenge. Id., citing Neville, 459 U.S. at 560. Based on
the above, we find ample support to conclude the High Court would approve this particular
evidentiary consequence in the context of a Fourth Amendment challenge. 14
plurality determined a warrantless blood test is generally valid under the 4th Amendment
based on exigent circumstances where a motorist suspected of DUI is unconscious.
Although Mitchell is not directly relevant here, the opinion signals general approval of
implied consent laws and evidentiary consequences for failing to comply with such laws.
See Mitchell, 139 S. Ct. at 2532 (“‘Our prior opinions referred approvingly to the general
concept of implied-consent laws that impose civil penalties and evidentiary consequences
on motorists who refuse to comply.’”), quoting Birchfield, 136 S. Ct. at 2185.
14 Our learned colleague in dissent is deliberate in his attempt to dispute this conclusion.
In doing so, Justice Wecht relies on dicta from Birchfield which he finds useful, see
Dissenting Opinion, slip op. at 10-11 (quoting dicta from Birchfield regarding the seeking
of warrants), while simultaneously criticizing our reliance on the High Court’s expressed
intention not to cast doubt on implied consent laws that impose civil penalties and
evidentiary consequences. Compare id. at 23 (“As I read Birchfield’s caveat, the Court
merely declined to opine concerning matters outside the scope of the issue upon which
certiorari was granted”) with Birchfield, 136 S. Ct. at 2185 (“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 . . . and
nothing we say here should be read to cast doubt on them.”). The dissent also
manufactures an illusory circularity problem where one does not exist in order to reach a
conclusion — invalidating all implied consent laws with respect to blood testing — that no
other court has reached. Cf. Rajda, 196 A.3d at 1121 (“[t]he case law interpreting implied
consent laws demonstrates that the judiciary overwhelmingly sanctions the use of civil
penalties and evidentiary consequences against DUI suspects who refuse to comply”)
[J-103-2018] - 22
Accordingly, we conclude the “evidentiary consequence” provided by Section
1547(e) for refusing to submit to a warrantless blood test — the admission of that refusal
at a subsequent trial for DUI — remains constitutionally permissible post-Birchfield. We
therefore affirm the order of the Superior Court.
Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer, Todd and Mundy join the opinion.
Justice Mundy files a concurring opinion in which Justice Todd joins.
Justice Wecht files a dissenting opinion in which Justice Donohue joins.
(citation omitted); Fitzgerald, 394 P.3d at 676 (“the Supreme Court has all but said that
anything short of criminalizing refusal does not impermissibly burden or penalize a
defendant’s Fourth Amendment right to be free from an unreasonable warrantless
search”). Rather than engaging in a discussion of the dissent’s perceived “paradox,” we
need only answer one question: is the evidentiary consequence at issue so coercive that
it renders a motorist’s prospective consent to blood testing involuntary? As detailed
above, the answer to that question is no.
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