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HomeMy WebLinkAboutCP-21-CR-2727-2006 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JOHN PAUL MULHOLLAN CP-21-CR-2727 -2006 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., March 14, 2007:-- Defendant, John Paul Mulhollan, is charged with counts of aggravated assault by vehicle while driving under the influence,1 recklessly endangering another person,2 driving under the influence, general impairment with accident, 3 driving under the influence, highest rate,4 reckless driving,5 following too closely,6 and driving a vehicle at an unsafe speed.7 Defendant filed a motion to suppress evidence for which a hearing was conducted on March 5, 2007. On July 8,2006, Steven Dunkerly, an Officer with the East Pennsboro Township Police Department, was dispatched at 5:22 p.m. to an automobile accident at the intersection of Erford Road and Poplar Church Road in East Pennsboro Township. 175 PaC.S. S 3735.1. 218 PaC.S. S 2705. 375 PaC.S. S 3802(a)(1). 475 PaC.S. S 3802(c). 575 PaC.S. S 3736(a). 675 PaC.S. S 3310. 775 PaC.S. S 3361. CP-21-CR-2727 -2006 When he arrived, he learned that defendant, while operating a Mercedes, had run into the rear of a motorcycle that was stopped in a line of traffic for a red light. The motorcyclist was severely injured, and taken to a hospital by helicopter. Officer Dunkerly's interaction with defendant revealed that defendant was manifestly under the influence of alcohol. Defendant's movements were slow and deliberate; he could not remove an insurance card from a plastic sleeve; his eyes were glassy and bloodshot; an odor of alcoholic beverages came from him; he swayed; he was unsteady on his feet, and he used his vehicle and a police vehicle to steady himself. He told the officer that he had left work an hour before. When he was asked where he was during that hour he said "just here." He denied drinking any alcoholic beverages despite the Officer telling him that he smelled alcohol on him. Officer Dunkerly arrested defendant for driving under the influence. He remained at the scene to continue his investigation while Sergeant Stewart Spencer took defendant to central processing. When they arrived, Officer Spencer read from a form advising defendant of his rights under the Implied Consent Law. Defendant, after initially appearing confused and having the warnings repeated, signed the form and consented to a test of his blood alcohol content. When it came time to take a test of his blood alcohol content defendant refused. Officer Dunkerly called the booking center at approximately 6:30 p.m. and was told that defendant had refused a test. The Officer was concerned that the motorcyclist -2- CP-21-CR-2727 -2006 might die, so he decided to apply for a search warrant to seize blood from defendant. Under the heading: "PROBABLE CAUSE BELIEF IS BASED UPON THE FOLLOWING FACTS AND CIRCUMSTANCES," the Officer set forth. On 07/08/2006 at appx. 1722 hours, this officer was dispatched to an auto accident located at the intersection of Erford Road and Poplar Church Road in Camp Hill, East Pennsboro Township. Upon arrival, this officer observed this to be a multiple vehicle automobile accident involving a motorcycle with the suspect vehicle being a white Mercedes Benz sw bearing PA registration FVN9641. This vehicle is registered to John Mulhollan. It appeared that the driver had rear ended the motorcycle crushing the operator between two vehicles while stopped at the intersection for red signal. The operator was arrest for DUI and transported to Carlisle Prison Booking Center for chemical testing where he refused testing. Due to my training and experiances [sic] operators who refuse chemical testing are above the legal BAC limit. Due to the nature and severity of the accident it is nessisary [sic] to determine the actual BAC of Mulhollan. Based on the above information, there exists sufficient reason to believe that Mulhollan was under the influence of an alcoholic beverage at the time of the accident and incapable of safe driving. A search warrant was issued by a Magisterial District Judge. The warrant identified the items to be searched for and seized as "Blood viles [sic] containing the blood sample(s) taken from patient, John Paul Mulhollan." Officer Dunkerly then picked up defendant, and took him to a hospital where blood was drawn at 8:42 p.m.8 Defendant seeks to suppress evidence of the results of the test of the alcohol content in the blood drawn from him at the hospital. He maintains: (1) he could not legally be subjected to a test of his blood alcohol content after he refused to take a test, (2) the affidavit of probable cause for the search warrant is legally deficient, (3) the 8 The motorcyclist survived. -3- CP-21-CR-2727 -2006 search warrant did not specifically authorize the removal of blood from his person, and (4) his blood was drawn more than two hours after he had operated his motor vehicle. -4- CP-21-CR-2727 -2006 DISCUSSION In Commonwealth v. Eisenhart, 531 Pa 103 (1992), the Supreme Court of Pennsylvania stated: The issue before this Court is whether the appellant has the right to refuse to submit to blood alcohol testing under the Motor Vehicle Code. If there is such a right, we must determine whether blood test results acquired in contravention of that asserted right should be suppressed. (Emphasis added.) The facts were that appellant's vehicle crashed into the cement wall of a residence. A police officer arrived at the scene and after investigating, arrested appellant for driving under the influence. Appellant alternately agreed and refused to submit to a blood alcohol test. He was then transferred to a hospital where he refused to consent to a test. Notwithstanding, blood was drawn from him. He filed a motion to suppress evidence of the results of the test, which was denied. He was convicted, and the Superior Court of Pennsylvania affirmed the conviction. Appellant argued that once he refused to submit to a blood test, the Implied Consent provision of the Motor Vehicle Code, 75 PaC.S. Section 1547, prohibited the testing of his blood for alcohol level, and the subsequent evidentiary use of such test results was prejudicial error. The Commonwealth argued that the testing of the blood satisfied both statutory and constitutional requirements, that the police officer complied with the requirements which permit blood to be tested upon the showing of probable cause, and that the police officer validly obtained the test results from a search incident to the lawful arrest and/or under exigent circumstances. The Supreme Court of Pennsylvania noted that Section -5- CP-21-CR-2727 -2006 1547(b)(1) provides: 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 a 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.9 The Court concluded that Section 1547 "grants an explicit right to a driver who is under arrest for driving under the influence to refuse to consent to chemical testing." Once a conscious driver denies consent, the testing shall not be conducted.10 Finding that it was error not to suppress the results of appellant's blood test "because it was taken unlawfully," the Court reversed the conviction for driving under the influence, and ordered a new trial. In Commonwealth v. Riedel, 651 A.2d 135 (Pa. 1994), the Supreme Court, commenting on its decision in Eisenhart, stated: "We held that because the appellant was under arrest, he had an explicit statutory right to refuse to consent to blood testing and suppressed the results of the test." Eisenhart was not decided on the basis that appellant's blood was drawn without a search warrant. Rather, it was decided based on a statutory right that we believe is applicable to the facts in the present case. Defendant herein was arrested 9 Section 1547(b)(1) now reads: "if any person placed under arrest for a violation of section 3802 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. . . ." Section 3802 is now the driving under the influence of alcohol or controlled substance section of the Vehicle Code. 10 The Court noted that "The issue of an unconscious driver or a driver whose blood is removed for medical purposes is not before us today. . ." -6- CP-21-CR-2727 -2006 for driving under the influence, and he refused a test of his blood alcohol content. Under the same reasoning as in Eisenhart, once a person is arrested for driving under the influence and refuses upon request to take a test, a search warrant cannot be used in contravention of the statutory right in Section 1547 that "testing shall not be conducted." Securing a search warrant in the present case is a distinction without a difference from Eisenhart, where, after a request and a refusal, blood was taken without a search warrant based on probable cause and exigent circumstances.11 Accordingly, the motion of defendant to suppress evidence of the results of the alcohol content in the blood drawn from him, will be granted.12 ORDER OF COURT AND NOW, this day of March, 2007, the motion of defendant to suppress evidence of the results of the test of the alcohol content in his blood, IS GRANTED. 11 Because defendant was taken to a hospital by Officer Dunkerly for the purpose of having blood drawn, and not because he required treatment in an emergency room, Section 3755(a) of the Vehicle Code, that requires hospital personnel to take a blood sample where probable cause exists to believe that the person being treated was driving while under the influence of alcohol, is not implicated. See Commonwealth v. Keller, 823 A.2d 1004 (Pa. Super. 2003). We note that there is no issue before us of whether a test result would have to be suppressed if, after an arrest on probable cause to believe that a person was operating a motor vehicle while under the influence of alcohol there was no request to submit to chemical testing, but a search warrant was issued which resulted in the removal of blood. See Commonwealth v. Kohl, 532 Pa. 152 (1992), where the Supreme Court noted that the Implied Consent provisions of Section 1547 of the Vehicle Code "dispense with the need to obtain a warrant." 12 This resolution makes it unnecessary to review the other issues raised by defendant in support of his motion to suppress evidence. -7- CP-21-CR-2727 -2006 Christin Mehrtens-Carlin, Esquire Assistant District Attorney Douglas K. Marsico, Esquire F or Defendant :sal By the Court, Edgar B. Bayley, J. -8- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JOHN PAUL MULHOLLAN CP-21-CR-2727 -2006 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE ORDER OF COURT AND NOW, this day of March, 2007, the motion of defendant to suppress evidence of the results of the test of the alcohol content in his blood, IS GRANTED. By the Court, Edgar B. Bayley, J. Christin Mehrtens-Carlin, Esquire Assistant District Attorney Douglas K. Marsico, Esquire F or Defendant :sal