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HomeMy WebLinkAbout96-0394 CriminalCOMMONWEALTH RANDY DEAN AXE OTN: E222548-4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0394 CRIMINAL TERM CHARGES: (A) DUI (B) DUS (C) SELLING OR FURNISHING LIQUOR TO MINOR IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., November 14, 1996. In this criminal case involving charges of driving under the influence, driving under suspension (d.u.i. related) and selling or furnishing liquor or malt or brewed beverages to minors, 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 July 11, 1996. By order dated August 28, 1996, the court denied the motion to suppress. Following a jury trial, over which the Honorable Kevin A. Hess presided, Defendant was found guilty of the offenses charged.2 He was sentenced on October 15, 1996, to the mandatory minimum sentence prescribed for a third offense of driving under the ~ A second pretrial motion for relief, denominated a motion in limine and filed with the motion to suppress, was withdrawn pursuant to an agreement of counsel. See Order of Court, July 11, 1996. 2 The jury found Defendant guilty of driving under the influence and selling or furnishing liquor or malt or brewed beverages to minors. The court found Defendant guilty of the summary offense of driving under suspension (d.u.i. related). Order of Court, September 10, 1996. NO. 96-0399 CRIMINAL TERM influence, to the mandatory sentence prescribed for the offense of driving under suspension (d.u.i. related), and to a fine of $100 on the charge of selling or furnishing alcohol or malt or brewed beverages to minors.3 Defendant appealed from the judgment of sentence on October 21, 1996. The basis for the appeal was the allegedly erroneous ruling by this writer on his suppression motion.4 This opinion in support of the court's denial of Defendant's suppression motion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Following a one-vehicle accident in Cumberland County on Thursday, October 5, 1995, at about 9:00 p.m., Defendant was flown by helicopter to Hershey Medical Center in Dauphin County for medical treatment,s The accident occurred when the vehicle went 3 Order of Court, October 15, 1996 (Hess, J.). 4 Defendant's Rule 1925 Concise Statement of Matters Complained of on Appeal (filed November 4, 1996). s Defendant's omnibus pretrial motion, paragraphs 3, 5. 2 NO. 96-0399 CRIMINAL TERM out of control on the Pennsylvania Turnpike and left the roadway.6 Trooper James O'Neal of the Pennsylvania State Police, Troop T (Turnpike), requested state police of Troop H (Harrisburg) to proceed to the Hershey Medical Center to obtain a legal blood alcohol content (BAC) test with respect to Defendant.7 Such requests among state police in this geographical area are routine.8 Trooper David Conrad of Troop H responded to the Hershey Medical Center, arriving sometime before midnight with another trooper.9 Trooper Conrad met Defendant in the emergency room, read him his Miranda warnings and advised him as to the implied consent law.l° He asked Defendant if he would consent to have his blood drawn for legal purposes and Defendant said that he would,ii Id., paragraph 3. The facts recited in this first paragraph are generally contained in Defendant's motion and were not controverted by the Commonwealth. The occurrence of the accident in Cumberland County is being inferred from the filing of the charges in this county; the court has taken judicial notice of the fact that Hershey Medical Center is in Dauphin County. The evidence at the hearing was not particularly informative as to the events in the field leading up to Defendant's arrival at the hospital for treatment. 7 N.T. 8, Hearing, July 11, 1996; (hereinafter N.T. __); Commonwealth's Exhibit 2, Hearing, July 11, 1996 (hereinafter Commonwealth's Exhibit __). 8 N.T. 11-12. 9 N.T. 10. l0 N.T. 7-8. il N.T. 7. NO. 96-0399 CRIMINAL TERM Defendant then signed, at 11:55 p.m., a hospital form entitled "Toxicology Form A [--] Consent to Tests for Other Than Medical Purposes."12 This document stated, in pertinent part, as follows: I, Randy Axe, hereby consent to the taking of a blood sample, urine sample and/or a breath sample, for purposes other than medical, such as for police purposes. I release the hospital of the Milton S. Hershey Medical Center, its agents and employees, nurses and physicians, from any liability whatsoever arising out of the taking of said samples. It has been fully explained to me by representatives of the hospital that the United States Constitution grants me the right to refuse to allow these tests, and being under no duress and of my own free will, I hereby consent to them.~3 After obtaining Defendant's consent, Trooper Conrad approached hospital personnel for the purpose of requesting that blood be drawn from Defendant; he discovered that the staff had anticipated the police request and had drawn a sample of blood for legal purposes at 10:35 p.m.~4 Trooper Conrad accepted the sample drawn, choosing not to subject Defendant to a second procedure for the 15 same purpose. At this time, Defendant's medical condition appeared to be deteriorating, and Trooper Conrad left the hospital without N.T. 8, 10-11; Commonwealth's Exhibit 2. Commonwealth' s Exhibit 2. N.T. 8-9, 11-12. N.T. 9. NO. 96-0399 CRIMINAL TERM engaging him further.~6 At no time during this encounter with police was Defendant placed under arrest.~7 With respect to Defendant's motion to suppress the chemical test result, it was Defendant's position that the consent obtained did not relate to a sample of blood already taken, and that in the absence of such consent a search warrant was required for the acquisition of the sample.~8 The first part of Defendant's contention will be discussed in the balance of this opinion. DISCUSSION Where a driver has validly consented to the provision of blood to police for a BAC test, a search warrant is not required to Id. N.T. 13. N.T. 17-18. Defendant did not quarrel with the right of the trooper to ask Defendant if he would consent to a blood test, even though he was not under arrest. N.T. 18. 5 NO. 96-0399 CRIMINAL TERM obtain the blood~9 or the test result.2° The validity of a person's consent is dependent upon its being knowing, intelligent and voluntary.2~ In this regard, the totality of the circumstances must be examined.22 "At any suppression hearing, the burden is on the Commonwealth to show that consent was voluntarily, knowingly and intelligently given."23 It has sometimes been said that the waiver of one's ~ See Commonwealth v. Reidel, 539 Pa. 172, 651 A.2d 135 (1994); see generally Commonwealth v. Elliott, 376 Pa. Super. 536, 546 A.2d 654 (1988); Commonwealth v. Walsh, 314 Pa. Super. 65, 460 A.2d 767 (1983). It is possible that a driver may actually consent to a seizure of his person and 'the administration of a test of his breath or blood. Actual consent may then provide a constitutional basis for the seizure and test. Such consent must appear from "all the surrounding circumstances" to have been voluntary - i.e., not "coerced, by explicit or implicit means, by implied threat or covert force." Commonwealth v. Quarles, 229 Pa. Super. 363, 377-78, 324 A.2d 452, 460 (1974) (plurality opinion)(citation omitted); see generally Commonwealth v. Cieri, 346 Pa. Super. 77, 89 n.5, 499 A.2d 317, 323 n.5 (1985). 2o Commonwealth v. Leib, 403 Pa. Super. 223, 588 A.2d 922 (1991). 2~ See 1 Wasserbly, Pennsylvania Criminal Practice §19:27, at 93 (1996). 22 Bolden v. Southeastern Pennsylvania Transp. Authority, 953 F.2d 807 (3d Cir. 1991), cert. denied, 504 U.S. 943, 112 S. Ct. 2281, 119 L. Ed. 2d 206 (1992). 23 1 Wasserbly, Pennsylvania Criminal Practice §19:27, at 98 (1996). NO. 96-0399 CRIMINAL TERM rights inherent in the giving of consent must be proven by clear and convincing evidence.23 In addition, the following exclusionary rule must be recognized: principle involving the [T]here is no benefit to be obtained from penalizing police for an act of humaneness by an overzealous application of the exclusionary rule. Commonwealth v. Rehmeyer, 349 Pa. Superior Ct. 176, 502 A.2d 1332 (1985). The exclusionary rule was intended to discourage lawless, overbearing or harassing police conduct. Id. at 187, 502 A.2d at 1338.24 In the present case, Defendant was not under arrest at the time he agreed to provide a sample of his blood for police purposes. He was not subjected to any form of coercion or intimidation, nor was he the victim of trickery or deceit. He was given his Miranda warnings, and he was informed that he did not have to submit to the test.25 His consent to provide a sample was in writing and was unequivocal. The trooper's acceptance of a sample already drawn for legal purposes, rather than subjecting Defendant to a second medical procedure to the same end, did not substantively deviate from the 2~ Commonwealth v. Burgos, 223 Pa. Super. 325, 299 A.2d 34 (1972). Commonwealth v. Hoch, 44 Cumberland L.J. 140, 144 (1995). 25 For a case in which the implied consent warning was given to a driver who had not been placed under arrest, as was the case here, see Commonwealth v. Aiello, Pa. Super. , , 675 A.2d 1279, 1280-81 (1996)(judgment of sentence affirmed). 7 NO. 96-0399 CRIMINAL TERM terms of Defendant's consent. It represented, instead, a humane accommodation to Defendant, who had already been injured and whose condition was deteriorating. To punish and deter such conduct through the application of the exclusionary rule would not be consistent with its purpose. Based upon the totality of the circumstances in this case, the court was of the view that Defendant had validly consented to the chemical test of his blood. For this reason, it declined to grant Defendant's motion to suppress. The Honorable Kevin A. Hess Thomas A. Placey, Esq. Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender : rc 26 Because of the court's disposition of this motion upon a finding of actual consent, it was unnecessary to consider the admissibility of the evidence on the basis of implied consent. As the Pennsylvania Superior Court stated in Commonwealth v. Cieri, 346 Pa. Super. 77, 88, 499 A.2d 317, 322 (1985): It is important to note that there are two, alternative constitutional bases for a blood test: actual consent, and implied consent. Not every case requires a decision on whether both bases have been satisfied. Thus, where a suspect has actually consented to the test, the test may be upheld on that basis alone, with no inquiry being made regarding implied consent.