Commonwealth v. Bell, T., Aplt.

[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

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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”)

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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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