holding a blood draw and test conducted at the request of police constituted a search
How later courts described this case
- holding a blood draw and test conducted at the request of police constituted a search
- “[P]olice did not have probable cause to believe appellant was driving under the influence. In the absence of any evidence of alcohol or drug use, the occurrence of a one-car accident during the early morning hours of a clear, dry day in an area with a low accident incidence rate is not a sufficient factual basis to support the belief that the driver was under the influence of alcohol.”
Written by the judges who cited it.
The opinion
OLSZEWSKI, Judge,
concurring.
I agree with the decision reached by the majority; however, I write separately to emphasize the limited scope of our decision.
The decision reached by the majority is compelled by long-standing precedent. Taking blood samples constitutes a search and seizure. Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966). Contrary to the implication of 75 Pa.C.S.A. § 1547(a), drivers cannot be “deemed” to consent to warrantless searches and seizures as a condition on the right or privilege of driving. Commonwealth v. Quarles, 229 Pa.Super. 363 , 324 A.2d 452, 460-462 (1974). The blood test must fall under some recognized exception to the warrant requirement. Id.
Ordinarily, blood tests are justified on grounds of probable cause. 75 Pa.C.S.A. § 1547(a)(1); Commonwealth v. Quarles, 229 Pa.Super. 363 , 324 A.2d 452, 460-462 (1974) (holding that blood tests are constitutional where there is probable cause). In the present case, the blood test was based solely on the severity of the accident, applying 75 *84 Pa.C.S.A. § 1547(a)(2). Severity of the accident, standing alone, is not sufficient grounds to justify a warrantless blood test; accordingly, 75 Pa.C.S.A. § 1547(a)(2) is unconstitutional.
Where, as here, the only reason for the blood test is the severity of the accident, a blood test is an illegal search and seizure. If the police officer in this case had noticed any signs of intoxication, such as an odor of alcohol, bloodshot eyes, lack of coordination or slurred speech, the blood test would have been authorized by 75 Pa.C.S.A. § 1547(1). See, e.g., Commonwealth v. Haynos, 363 Pa.Super. 1 , 525 A.2d 394 (1987), Commonwealth v. Pelkey, 349 Pa.Super. 373 , 503 A.2d 414 (1985) (probable cause based on existence of an accident and odor of alcohol on the driver’s breath). Consequently, our decision affects only those cases in which the officer requesting the blood test has no reason to suspect intoxication.