# Commonwealth v. Kohl > Supreme Court of Pennsylvania · November 14, 1990 · 395 Pa. Super. 73 URL: https://www.frixlaw.com/law-library/cases/9629465 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Bruce A. KOHL, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** November 14, 1990 - **Citations:** 395 Pa. Super. 73; 576 A.2d 1049 - **Precedential status:** Published - **Opinion:** Dissent by Tamilia - **Judges:** Cirillo, Cavanaugh, Brosky, Olszewski, Sole, Montemuro, Tamilia, Kelly, Johnson - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9629465 ## How later opinions describe it (automated extraction) - holding a blood draw and test conducted at the request of police constituted a search ## Opinion text TAMILIA, Judge, dissenting. The majority Opinion vacates the judgment of sentence and remands the case for a new trial by holding that the blood alcohol test performed on appellant violated his constitutional rights pursuant to the fourth amendment of the United States Constitution and Article I, section 8, of the Pennsylvania Constitution. I respectfully dissent and would hold that 1) the Implied Consent Statute, 75 Pa.C.S. § 1547(a)(2), clearly creates a constitutionally permissible basis for a search based upon special need in the exercise of a governmental interest; 2) the admission of testimony from a pathologist as to the probable speed of the vehicle was not reversible error, and 3) the mandatory sentencing provisions of the drunk driving laws are constitutional and 4) they do apply to person over 18 years and under 21 years of age. I would, therefore, affirm the judgment of sentence of the trial court. The facts of this case may be briefly stated as follows. The appellant Bruce Kohl, who was 18 years of age at the time, was involved in a one-car accident on March 30, 1985 *85 at approximately 4:00 a.m. Appellant’s vehicle struck a pole and then hit a retaining wall. When police arrived at the scene, they found appellant unconscious behind the wheel of the car which contained two other passengers. The three occupants were removed from the car shortly before it burst into flames. One passenger was dead at the scene, the other died in an ambulance en route to the hospital. Appellant was taken to the hospital by Medi-vac and remained unconscious throughout the following day. During that time, police, following investigation of the accident scene, went to the hospital and requested that a blood sample be taken from defendant for analysis as to alcohol content. A second sample had been ordered by the emergency room doctor, but it does not enter into the consideration here. Between March 30th and April 23rd, appellant was unavailable for questioning, despite several attempts by police, as he was hospitalized and doctors would not permit questioning. Arrest warrants were issued on April 29, 1985 based on laboratory findings that appellant’s blood alcohol content was .15 per cent. On April 23, 1985, police were informed appellant could be questioned and, upon contacting him in his hospital room and informing him of his rights, defendant declined to answer any questions by the officer. Subsequently, a motion was made to suppress the blood tests on the ground of infringement of his constitutional rights. Appellant moved to quash indictments and to discharge all charges pending against him. The motions to quash and discharge were denied and the case proceeded to a trial by jury, following which appellant was convicted of two counts each of homicide by vehicle, 1 homicide by vehicle while under the influence of alcohol 2 and driving under the influence. 3 For the vehicular homicide while driving under the influence convictions, appellant was sentenced to three to seven years imprisonment on each count, to run concur *86 rently. For driving under the influence, he was fined $300 and sentenced to 30 days to 12 months imprisonment, consecutive to the homicide sentences. In deciding this case, the majority relies on the rationale and conclusions it developed in Commonwealth v. Danforth, 395 Pa.Super. 1 , 576 A.2d 1013 (1990), as the constitutionality of the implied consent law was similarly at issue there. This case, to a far greater extent than Danforth , establishes the wisdom of the legislation and the necessity for the Commonwealth to create a “special need” exception to fourteenth amendment search and seizure requirements of warrant or probable cause in order to obtain blood samples where injury requiring medical attention or death occurs in motor vehicle accidents. The trial court found that either under 75 P.S. § 1547(a)(1) or section 1547(a)(2), there was probable cause to obtain a blood test, or implied consent to do so. The trial court does not discuss the issue of constitutionality further but relies on the findings by the suppression judge. The suppression judge likewise found that the facts in this case satisfied the reasonable grounds requirement of section 1547(a)(1). In both the suppression and trial Opinions, the judges relied on the facts that this was a serious single vehicle accident at 4:00 a.m., causing the death of two men and serious injury to a third. Police believed appellant had operated his vehicle at an excessive rate of speed, due to the damage to the car, on a roadway posted for 35 miles per hour. The roadway was dry, visibility clear and without obstruction to inhibit defendant’s driving. There was no evidence of braking or skid marks. Police could not communicate with defendant due to his unconscious condition, and the automobile was consumed by flames almost immediately after removal of the three occupants. As to section 1547(a)(2), the suppression court properly accorded a strong presumption of constitutionality to lawfully enacted legislation. Martin v. Unemployment Compensation Board of Review 502 Pa. 282 , 466 A.2d 107 *87 (1983), cert. denied 466 U.S. 952 , 104 S.Ct. 2156 , 80 L.Ed.2d 541 (1984). While the trial court found that despite lack of evidence of alcohol ingestion from odors or physical signs exhibited by the appellant, there was other evidence from the circumstances surrounding the accident to give rise to a reasonable belief (probable cause) that the driver was intoxicated, permitting the prearrest testing of appellant pursuant to Commonwealth v. Quarles, 229 Pa.Super. 363 , 324 A.2d 452 (1974); Commonwealth v. Cieri, 346 Pa.Super. 77 , 499 A.2d 317 (1985), and Commonwealth v. Pelkey, 349 Pa.Super. 373 , 503 A.2d 414 (1985). However, in each of those cases, the odor of alcohol was detected on drivers not involved in serious accidents. Here, appellant was seriously injured and his two passengers killed but no odor of alcohol was detected nor was there present any other behavior or observations giving rise to a reasonable belief of alcohol ingestion. Thus reliance on section 1547(a)(1) does not address the issue of constitutionality framed by this case;2 4 nor does Commonwealth v. Smith, 382 Pa.Super. 288 , 555 A.2d 185 (1989), which has facts similar to those in this case except that the odor of alcohol was detected and the constitutional issue was not present. All relevant preliminary issues raised by the implied consent provision in section 1547(a)(2) have been resolved by Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989), as thoroughly discussed in Commonwealth v. Danforth, 395 Pa. *88 Super. 1 , 576 A.2d 1013 (1990) (Tamilia, J., dissenting). While Skinner refused to consider whether a regulation, fulfilling a governmental special need to protect persons from injury and death in the operations of railroad, requiring blood, breath or urine testing in the event of an accident resulting in injury or death, was constitutional if such results were used in criminal prosecution, I fail to see how such a result could be denied. This case, far more than Danforth , illustrates the absolute necessity of section 1547(a)(2), which, in its very narrow and limited manner, provides the necessary legal basis for testing. To hold otherwise would be to permit the most serious and egregious cases, which the statute was designed to prevent, to go undetected because of inability of the police to conduct even a cursory preliminary evaluation. Danforth and this case raise the additional problem of detecting possible drug use when behavior cannot be observed, since the odor of most drugs is not detectable and the behavioral observa-' tions are not possible, or may be compatible with other factors related to the accident and emergency treatment. When persons are dead or so badly injured they must be transported forthwith to a hospital in an unconscious state, the usual opportunity to observe behavior or detect odors of alcohol is simply not present. The first duty is to save lives under the facts, whereas, in an ordinary DUI stop, ample opportunity exists to establish probable cause for testing. The statute requires that when conditions are relatively normal in the usual stop, reasonable cause must exist to require testing. Common experience informs us that this is usually sufficient as the indicators of alcohol or drug use are detectable by a trained observer such as a police officer. As Skinner explained, this is sufficient under the fourteenth amendment to go forward with a test without a warrant. In the more serious and difficult situation, when an injury requiring medical treatment or death occurs, the law does not require preliminary attempts to establish probable cause, as treatment and care become paramount. Under those circumstances, probable cause is not essential because the Commonwealth has placed such great impor *89 tance on detecting and preventing the most serious consequence of driving while intoxicated, as a condition of granting the privilege (or right) to drive, implied consent substitutes for reasonable belief. For this Court to hold otherwise creates a huge gap in effective deterrence and prosecution of the worst cases involving driving while under the influence. There are no means to deal with this special governmental need to reduce the enormous cost in life and property resulting from driving under the influence other than the implied consent law detailed in section 1547(a)(2). See Danforth, supra (Tamilia, J., dissenting). As to the remaining issues that the pathologist was erroneously permitted to testify as to the speed of the automobile, and the mandatory sentencing provision is unconstitutional, both are without merit. As to the first, Dr. Mihalakis, a forensic pathologist, was interrogated extensively in direct and cross-examination as to his qualifications. Following the interrogation, the trial judge found him qualified to testify as to the speed of the vehicle. Dr. Mihalakis testified that, since 1963, he has been privy to 30 to 50 cases of vehicular deaths each year and that he previously testified, on at least six occasions in Pennsylvania courts, on the speed of vehicles based on the injuries sustained by passengers. Defense counsel was afforded wide latitude to address his concerns to the jury and having done so, it was properly within the jury’s discretion to accept or reject the doctor’s opinion. Expert testimony is admissible when it is offered by a witness with any reasonable pretension to specialized knowledge on the subject under investigation. See Kravinsky v. Glover, 263 Pa.Super. 8 , 396 A.2d 1349 (1979), citing Ragan v. Steen, 229 Pa.Super. 515 , 331 A.2d 724 (1974). (Slip Op., Davison, J., p. 5.) I see no reason to go beyond this accurate statement of the law to affirm the court’s holding on this issue. As to the validity of the mandatory sentencing provisions, their constitutionality is beyond dispute. The appellant *90 makes an unsupported bald statement that the laws are unconstitutional. However, in his brief, the appellant acknowledges the DUI law was held to be constitutional in Commonwealth v. Wright, 508 Pa. 25 , 494 A.2d 354 (1985), Commonwealth v. Kunselman, 363 Pa.Super. 475 , 526 A.2d 443 (1987), and Commonwealth v. Hernandez, 339 Pa.Super. 32 , 488 A.2d 293 (1985). Since our Supreme Court has resolved this issue, appellant’s allegation of unconstitutionality must be unavailing before this Court and need not be addressed further. Neither is appellant’s plea that an 18 year old should not be subject to the driving under the influence laws, since he is not permitted to drink until he is 21 years old. This argument is specious at best. The prohibition of sale or use of alcohol to persons under 21 is in recognition that persons under 21 are more apt to be harmed or cause harm by drinking than those over 21. To permit a person to be immunized from the consequence of his illegal act, when the act and the resulting crime are both punishable, is an argument that defies reason. I would affirm the jury convictions and judgment of sentence. Joined by BROSKY, J. . 75 Pa.C.S. § 3732. . 75 Pa.C.S. § 3735. . 75 Pa.C.S. § 3731. . Implied Consent Law, 75 Pa.C.S. 1547(a)(2): (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 giveen 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 motor vehicle: (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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629465. Public record. Not legal advice.