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HomeMy WebLinkAbout96-0017 CriminalCOMMONWEALTH Ve ERIC WILLIAM McKENZIE OTN: E005539-2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0017 CRIMINAL TERM CHARGE: (A) DUI (B) DUS (Sum) (C) CARELESS DRIVING (Sum) IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., October,S, 1996. In this criminal case involving charges of driving under the influence, driving under suspension and careless driving Defendant filed an omnibus pretrial motion for relief in the form of a motion to suppress. The evidence sought to be suppressed was a chemical 'test of Defendant's blood. A hearing on Defendant's motion was held by the writer of this opinion on February 28, 1996. Following the hearing, the court denied the motion.~ Defendant was subsequently found guilty in a nonjury trial of the offenses. On appeal, he has asserted, inter alia, that the court erred in denying the suppression motion. This opinion in support of the court's ruling on Defendant's suppression motion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On Saturday, March 18, 1995, at about 1:00 a.m., Pennsylvania State Trooper William C. Palmero, an accident reconstruction ~ Order of Court, February 28, 1996. NO. 96-0017 CRIMINAL TERM specialist stationed in Carlisle (Cumberland County), was dispatched to the scene of a one-car accident along Pennsylvania State Route 34 in South Middleton Township, Cumberland County, Pennsylvania.2 Defendant had been the driver of the vehicle,3 and the occurrence of the accident was described by the trooper as follows: There was a car that failed to negotiate what would have been a left-hand bend going south on Route 34 approaching the bridge over the creek, at that location. Instead of making a left-hand bend, it had drifted off the roadway, went down the berm, through a grass ditch, hit a concrete culvert, and started to go airborne and started to roll, came to rest in a driveway of a farm house just prior to the creek, and ca/ne to rest on its roof.4 Defendant, who had been injured and who was essentially incoherent, emitted "the odor of an alcoholic beverage ..... a pungent drunken smell," according to Trooper Palmero -- and had bloodshot eyes; he was "disoriented [and had] no idea what was going on."5 The car contained an open can of beer, half full of still-cold beverage.6 2 Hearing, Defendant's Omnibus Pre-trial Motion, February 28, 1996, N.T. 3-4 (hereinafter N.T.__). N.T. 5. Id. N.T. 6. N.T. 7. 2 NO. 96-0017 CRIMINAL TERM Defendant was transported by helicopter to Hershey Medical Center (Dauphin County).7 Trooper Palmero advised state police in Harrisburg (Dauphin County), that probable cause existed for Defendant's arrest for driving under the influence and instructed them to obtain a "legal blood alcohol" from Defendant.8 Pennsylvania State Trooper Galen E. Glassmire, stationed in Harrisburg, went to Hershey Medical Center in response to Trooper Palmero's direction. He found Defendant under treatment in the trauma unit in an incoherent state, and requested hospital personnel to draw blood from him for purposes of a BAC test.9 Defendant's medical condition was such that there was no use in attempting to solicit his position on the subject of a blood test.~° The blood was drawn at 3:45 a.m.~ The BAC test result was · 21%.'~2 This test result was the subject of Defendant's motion to suppress.~3 1996. N.T. 5. N.T. 7-8. N.T. 11-12. N.T. 15-16. N.T. 14. N.T. 19. Defendant's Omnibus Pre-trial Motion, filed February 20, NO. 96-0017 CRIMINAL TERM DISCUSSION Basis for appeal. The basis for Defendant's contention that the court erred in declining to suppress the chemical test is summarized as follows: [T]he manner in which the blood sample was obtained is violative of the Pennsylvania Constitution, Article I, Section 8; in that the blood sample was obtained from the Defendant without his consent, without a Search Warrant, without the subpoenaing of the medical records, and the blood was drawn not as a part of the Defendant's general treatment for injuries received, but specifically at the direction of Trooper Glassmire, who was present at the Hershey Medical Center and who requested a nurse draw "legal blood" which was later analyzed in support of the above- referenced charges (Omnibus Pre-trial Motion to Dismiss Hearing, February 28, 1996, p. 11.) At the time the blood was drawn, the officer testified the Defendant was "incoherent," and the' officer attempted to interview the Defendant but "was unable to get an interview at that time" due to his medical condition (Omnibus Pre-trial Motion to Dismiss Hearing, February 28, 1996, p. 12.) For the reasons set forth within this paragraph, and generally for the reasons revealed in the course of the Omnibus hearing and the trial, the Defendant's Pennsylvania Constitutional rights were violated by the taking of a blood sample under the circumstances.TM Statement of law. Section 8 of Article I 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 ~4 Defendant's Concise Statement of Matters Complained of on Appeal, paragraph 4(A). NO. 96-0017 CRIMINAL TERM 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. Sections 3755 and 1547 of the Vehicle Code comprise a statutory scheme that implies the consent of a driver to undergo chemical/blood testing under particular circumstances.~s Section 3755 provides in pertinent part as follows: (a) General rule. -- If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persbns and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for that purpose. This section shall be applicable to all injured occupants who were capable of motor vehicle operation if the operator or person in actual physical control of the movement of the motor vehicle cannot be determined. Test results shall be released upon request of the person tested, his attorney, his physician or governmental officials or agencies.~6 Section 1547 provides in pertinent part as follows: ~ Commonwealth v. Riedel, 539 Pa. 172, 651A.2d 135 (1994). ~6 Act of December 15, 1982, P.L. 1268, §11, as amended, 75 Pa. C.S. §3755(a). 5 NO. 96-0017 CRIMINAL TERM (a) General rule. -- Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood, urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle: (1) while under the influence of alcohol or a controlled substance or both; or (2) which was involved.in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.~? Probable cause is a prerequisite to the application of Section 1547(a)(2). Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992). The scheme created by Sections 3755 and 1547 is designed to do more than just preserve evanescent evidence.~8 The purpose is to facilitate prosecution of chemically impaired drivers.~9 ~7 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1547(a). "Reasonable grounds" is the equivalent of "probable cause." Commonwealth v. Pelkey, 349 Pa. Super. 373, 503 A.2d 414 (1985). ~ Commonwealth v. Riedel, 539 Pa. 172, 182-83, 651 A.2d 135, 141 (1994). 6 NO. 96-0017 CRIMINAL TERM To the extent that a police officer has probable cause to believe that a person who is unconscious and being treated at a hospital was driving under the influence, it would appear that he or she may, without a warrant, request hospital personnel to draw blood for purposes of a chemical test without violation of search and seizure provisions of the federal or state constitutions. Commonwealth v. Simon, 440 Pa. Super. 428, 655 A.2d 1024 (1995); cf. Commonwealth v. Riedel, 539 Pa. 172, 651 A.2d 135 (1994). "The Superior Court has repeatedly upheld probable cause to conduct a blood alcohol test ... where the defendant has looked and smelled like, he has consumed alcohol and a serious one car or head-on accident has occurred."2° Probable cause exists, moreover, where a serious motor vehicle accident has occurred involving a driver who was found in a semi- conscious state with the odor of alcohol on his breath.2~ In the present case, Defendant was for all intents and purposes unconscious while being provided emergency treatment at the Hershey Medical Center. Indicia of his having driven under the influence included unsafe driving,~ a one-car accident under 2o Commonwealth v. Simon, 440 Pa. Super. 428, 655 A.2d 1024, 1027 (1995). 2~ Id. at 435, 655 A.2d at 1027-28. ~ See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990). 7 NO. 96-0017 CRIMINAL TERM circumstances suggestive of serious driver error,23 the odor of an alcoholic beverage,24 incoherence and disorientation,~5 and an open beer can in the vehicle.26 These indicia, it is believed, constituted ample probable cause to support the request to hospital personnel. For the foregoing reasons, the court declined to suppress the chemical test in the present case on the ground that the evidence was unconstitutionally obtained. Thomas Placey, Esq. Assistant District Attorney Samuel W. Milkes, Esq. Assistant Public Defender : rc ~ See Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920 (1990); Commonwealth v. Zelinski, 392 Pa. Super. 489, 573 A.2d 569, appeal denied, 527 Pa. 646, 593 A.2d 419 (1990). ~ See Commonwealth v. Fick, 391 Pa. Super. 625, 571 A.2d 1091-(1990); Commonwealth v. Fairley, 298 Pa. Super. 236, 444 A.2d 748 (1982). ~ See Commonwealth v. Kowalek, 436 Pa. Super. 361, 647 A.2d 948 (1994). ~6 See Commonwealth v. Mordan, 419 Pa. Super. 214, 615 A.2d 102 (1992), afl'd, Pa. , 633 A.2d 588 (1993).