Commonwealth v. Danforth , 395 Pa. Super. 1 ( 1990 )

TAMILLIA, Judge,

dissenting:

This case involves a one-car accident in which the passenger was killed. Following the accident, the appellant, who was driving, went to a nearby residence where she called the police. The police responded to the call and on the way to the residence, encountered a car with the driver side unoccupied and the passenger dead. The car had gone off the road and struck a tree stump and a utility pole which was lying on the side of the road. Moreover, because of its force and speed, the vehicle became impaled on the pole through the passenger compartment killing the passenger. At the residence, the appellant identified herself to the police as the driver. She informed the police that earlier in the evening, while at an Inn, she met the man who was her passenger, and while driving him home, he had lunged at her, attempting to remove her blouse. In defending herself, she lost control of the vehicle and ran off the road. After the accident, she ran to the Byrd residence from where she called the police. The police encouraged her to go to the hospital for treatment of her facial injuries. While she was receiving treatment at the hospital, the police arrived there and questioned her.

Based on the severity of the accident and the death of the passenger, the officers requested appellant to provide them with a blood sample. They did not detect an odor of alcohol on her breath nor were they able to observe any of the usual indicators of alcohol use. Appellant consented to the test and her blood tested, after the lab work done by the police, with a blood alcohol content of .21 per cent. Police did not give her Miranda warnings nor did they inform her that the test could result in criminal charges if she was found to be intoxicated according to the legal standards established by law.

As a result of the blood test finding of .21 per cent, appellant was charged with driving under the influence, homicide by vehicle, homicide by vehicle while driving under the influence and driving at unsafe speed. Following her arraignment and, in due course, a motion to suppress the blood test was presented alleging that the blood test was inadmissible as evidence because there was no probable cause for obtaining a blood test, the appellant had not been warned that she was subject to criminal prosecution, and she was not informed she was entitled to counsel under Miranda. The trial court denied the motion and held that because of the implied consent statute, 75 Pa.C.S. § 1547 Chemical testing to determine amount of alcohol or controlled substance, the police had a right to obtain the blood sample. Thereafter, appellant, following a jury trial, was convicted only of driving under the influence of alcohol, 75 Pa.C.S. § 3731(a)(4). Following denial of her post-trial motions, appellant was sentenced to forty-eight (48) hours to one (1) year imprisonment. This appeal followed.

The majority acknowledges the police procedure conformed with the statute as written, and in analyzing Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and other state and federal cases, finds that while the police and court complied with the statute and procedures it provides, the statute is unconstitutional. It is the contention of the majority that under the fourth amendment of the Federal Constitution, having to do with search and seizure, and the eighth section of article I of the Pennsylvania Constitution, likewise concerning search and seizure, the statute relied upon by the police and affirmed by the court is unconstitutional as it provides for search without probable cause in cases such as this.

I respectfully disagree with the result reached by the majority and believe that throughout most of the Opinion, it has provided the supporting law and judicial interpretations which permit a finding of constitutionality, sufficient to justify testing under the circumstances of this case. It is only the conclusion of the majority and its refusal to take the necessary step of interpreting both Skinner, supra, and other cases to sustain the constitutionality of the statute to which I dissent. It is my belief that the statute, under the very limited special circumstances of this class of case, supplies the necessary substitute for probable cause due to very important public interest considerations which, when balanced against the private interests, require the exercise of a search.

As developed in the majority Opinion tracking the Skinner analysis, every aspect of search and seizure related to this case has been identified and resolved. Skinner had to do with railroad regulations pursuant to the Federal Railroad Safety Act of 1970 which authorized the secretary of transportation to promulgate rules and regulations for all areas of railroad safety. Finding that alcohol and drug abuse by railroad employees poses a serious threat to safety, the Federal Railroad Administration (FRA) promulgated regulations mandating blood and urine tests of employees who were involved in certain train accidents.¹ Skinner involved a motion by certain employees of railroads to enjoin the regulation. The case, in due course, reached the United States Supreme Court, which reversed the Court of Appeals in its holding that these regulations were violative of the fourth amendment search and seizure provisions. In reversing the appeals court, the Supreme Court directed its attention to the multi-faceted fourth amendment issues presented, resolving all of them in favor of the interest of the public rather than the private interest of the individual.

In so holding, the Supreme Court found that blood, urine and breathalyzer tests were subject to the Federal Constitution’s fourth amendment application. It found that the FRA was an agent of the government and, therefore, such fourth amendment rights applied to their regulations.

Skinner went on to say that whether a search or seizure is reasonable under the Federal Constitution’s fourth amendment depends on all the circumstances surrounding the search or seizure. The fourth amendment prohibitions against search and seizure relate to unreasonable search and seizure. It reaffirmed that except in certain well-defined circumstances, a search or seizure in a criminal case is not reasonable under the fourth amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause. However, the evaluation and inquiry as to search and seizure under these circumstances did not end there. In requiring a warrant, pursuant to the fourth amendment, to justify a search and seizure, the purpose is to assure the citizen that the intrusion is authorized by law and that it is narrowly limited in the objectives and scopes, and also provides for the detached scrutiny of a neutral magistrate and thus ensures an objective determination whether an intrusion is justified in any given case. Skinner cited the cases which hold that we must strike the balance in favor of the procedure described by the warrant clause of the fourth amendment in most criminal cases. However, it recognized exceptions to the rule when special needs beyond the normal need for law enforcement make the warrant and probable cause requirements impracticable. Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).

“When faced with such special needs, we have not hesitated to balance the governmental and privacy interest to assess the practicality of the warrant and the probable cause requirements in the particular context.” See e.g., Griffin, supra at 868, 107 S.Ct. at 3164, 97 L.Ed.2d at 709 (search of a probationer’s home); New York v. Burger, 482 U.S. 691, 699-703, 107 S.Ct. 2636, 2642-2644, 96 L.Ed.2d 601 (1987) (search of premises of certain highly regulated businesses); O’Conner v. Ortega, 480 U.S. 709, 721-725, 107 S. Ct. 1492, 1500-1502, 94 L.Ed.2d 714 (1987) (work-related searches of employees’ desks and offices); New Jersey v. T.L.O., 469 U.S. 325, 337-342, 105 S.Ct. 733, 740-743, 83 L.Ed.2d 720 (1985) (search of student’s property by school officials); Bell v. Wolfish, 441 U.S. 520, 558-560, 99 S.Ct. 1861, 1884-1885, 60 L.Ed.2d 447 (1979) (body cavity searches of prison inmates), cited at Skinner, supra at -, 109 S.Ct. at -, 103 L.Ed.2d at 661. In those cases, as with Skinner, the Supreme Court held that the government’s interest in regulating the conduct of the persons involved, whether it be the railroads, government office, school or prison, presents a special need beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements. Skinner, supra 489 U.S. at -, 109 S.Ct. at -, 103 L.Ed.2d at 662.

In Skinner at footnote 5, the court stated: “We leave for another day the question whether routine use in criminal prosecutions of evidence obtained pursuant to the administrative scheme would give rise to an inference of pretext, or otherwise impugn the administrative nature of the Agency’s program.” It would not deal with the possibility that the regulations were a pretext to enable law enforcement authorities to gather evidence of penal law violations. However, in refusing to decide that issue because it was not there presented, Skinner did not rule out a statute such as that with which we deal here, which, without pretext, intends to use the implied consent of the individual to enable procurement of evidence from blood, breathalyzer or urine tests in order to determine whether that person had violated the law in driving while under the influence. The rationale in Skinner, that neither a warrant nor a showing of probable cause or reasonable suspicion is required to permit the intrusion for the purposes of the regulation, is applicable to the statute under scrutiny here, and the governmental interest involved in the statute is just as important as a regulation such as that promulgated by the FRA.

Skinner goes on to state that an essential purpose of a warrant requirement is to protect the privacy interests by ensuring citizens subject to search or seizure that such intrusions are not the random or arbitrary acts of government agents. A warrant assures the" citizen that the intrusion is authorized by law and that it is narrowly limited in its objectives and scope. See e.g., New York v. Burger, supra at 691, 96 L.Ed.2d at 601, 107 S.Ct. at 2636. A warrant also provides the detached scrutiny of a neutral magistrate and thus ensures an objective determination whether an intrusion is justified in any given case. See United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The Supreme Court then makes the essential point which needs to be made here, that in the present context a warrant would do little to further these aims. Paraphrasing Skinner, supra at -, 109 S.Ct. at -, 103 L.Ed.2d at 663, both the circumstances justifying toxilogical testing and the permissible limits of such intrusions are defined narrowly and specifically in the statute which authorizes them. This provides the necessary focus and restriction which normally is supplied by a showing of probable cause and the disinterested review by a neutral magistrate.

While we may not rely on the presumption that everybody knows the law for this purpose, in terms of its exact textual content, we may presume everybody knows that one may not drive while under the influence of alcohol. Carrying further the logic propounded by Skinner, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the testing, there are virtually no facts for a neutral magistrate to evaluate. Skinner, supra at -, 109 S.Ct. at -, 103 L.Ed.2d at 663. Going further, the Supreme Court stated it recognized the government’s interest in dispensing with the warrant requirement is at its strongest when, as here, the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. They concluded that imposing a warrant requirement in the context of a railroad accident would add little to the assurance of certainty and regularity already afforded by the regulation, while significantly hindering and, in many cases, frustrating the objectives of the government’s program. Therefore, the warrant is not essential to render the intrusion at issue with the reasonableness requirement of the fourth amendment. The identical considerations are applicable here.

Going forward to the next prong of search and seizure under the fourth amendment, Skinner analyzed the findings that even when a warrant is not required as a general matter, a search may not be instituted unless probable cause exists to believe the person violated the law. Skinner held that a showing of individualized suspicion is not a constitutional floor below which a search must be presumed unreasonable. United States v. Martinez-Fuerte, 428 U.S. 543, 560, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976). In limited circumstances where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. We believe this is true of the intrusions in question here. In Schmerber v. California, 382 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that the intrusion of the state pursuant to statute, in drawing a blood sample from a driver suspected of driving while intoxicated, despite his refusal to consent, was proper as the intrusion is not significant since such tests are common place and, in most persons, involve no risk or trauma. Skinner went on to analyze the- intrusion accompanying the breathalyzer or urine test as well and found that neither of those imposed a significant intrusion. Going further in its analysis, Skinner determined that since these intrusions were not considered to be significant intrusions and, in contrast, the government interest in testing, even without a showing of individual suspicion or probable cause was compelling, the probable cause requirement would be unrealistic under the circumstances of these types of laws and regulations. I would not conclude, therefore, that a test would be significantly intrusive simply because it implicated possible criminal prosecution.

The majority also finds, as stated before, that taking a blood sample pursuant to the statute was unconstitutional under article 1, section 8, of the Pennsylvania State Constitution. There is little distinction between the Pennsylvania Constitution and the Federal Constitution in terms of search and seizure, and while it is true that the State Constitution may be construed more broadly than the Federal Constitution, in the area of criminal law there has been relatively little expansion of the State Constitution in this regard. Like the federal courts, this Court and the Pennsylvania Supreme Court have determined the Pennsylvania Constitution does not prohibit certain arrests without warrant or without probable cause if special circumstances exist. The majority relies particularly on Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987), which held that a roadblock is not a permissible means for deterring drunk driving, as in applying the balancing test it cast too broad a net for that purpose. This holding is easily distinguishable from the present case in that specifically identified individuals pursuant to the statute are subject to testing, whereas in a roadblock, the persons have not been specifically identified and it is a random intrusion which depends on luck rather than particular conditions of identification to ascertain the person to be tested. Here, because of the special concerns for determining whether serious accidents and death were caused at least in part because of ingestion of alcohol or drugs, a serious and important governmental interest is implicated which justifies testing all persons who fit in that single limited and very narrow category. The relationship between alcohol and drug ingestion and serious accidents is so well documented that it need not be spelled out here. The special needs of the government in this class of cases are superior to the requirement of a warrant or probable cause in taking a blood sample.

A review of the Pennsylvania case law on this issue is, to a degree, informative but does not address the constitutionality of such a provision. In Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974), the issue concerning implied consent was addressed in relation to that portion of the statute which had to do with an arrest for drunken driving where it was suspected the party was under the influence. In interpreting the section which is now 7.5 Pa.C.S. § 1547(a), this Court determined the legislature had injected a probable cause requirement in a warrantless prearrest search, which was constitutional. Statutory reenactments since Quarles have been substantially the same in respect to the driving while under the influence section, but since that time, the section under question has been added which does not require a probable cause basis for obtaining a blood test. Quarles is, therefore, not helpful to us in coming to a decision in this matter. Cases which followed Quarles, Commonwealth v. Cieri, 364 Pa.Super. 77, 499 A.2d 317 (1985), and Commonwealth v. Pelkey, 349 Pa.Super. 373, 503 A.2d 414 (1985), were, likewise, rulings .which turned on the existence of probable cause and the issue present in this case was not raised. Commonwealth v. Smith, 382 Pa.Super. 288, 555 A.2d 185 (1989), involved the same issue as is presented here, that is, an accident resulting in injury and death with blood being extracted at a hospital. In that case, however, there was noticeable evidence of alcohol ingestion, and even though the sample was taken without consent, it was held to be a valid taking since probable cause existed for the taking. There was no need to consider the issue of implied consent absent a finding of probable cause.

We are now faced for the first time with the issue as to whether, under section 1547(a)(2), blood may be taken solely because of the implied consent provision and without the existence of probable cause in terms of physical appearance or odors of alcohol. The majority draws a bright line at the point where probable cause did not exist, holding that the implied consent provisions are unconstitutional to the extent that a probable cause requirement is not contained therein or read into the statute.

In making this leap, the majority ignores a primary rule in examining the constitutionality of a statute, which is that to the extent possible, we must find in favor of the constitutionality of a statute. Com., Dept. of Transp. v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987). It is clearly evident that the legislature did not intend to have a probable cause requirement be the triggering condition to a warrantless and nonconsensual search in order to obtain a blood sample.² Neither did the legislature intend to violate the constitution. See 1 Pa.C.S. § 1922(8). In reviewing this section, it is necessary to look at the legislative plan furthering a governmental interest in obtaining an important result, despite the reduction of the right of private individuals to a warranted and probable cause search and seizure. I believe the legislative plan is clearly apparent and the rationale for such a plan is reasonable and necessary.³

All of the reasons enunciated in Skinner as to the right of government to effectuate regulations to control an instrumentality which contains the prospect of great danger and harm to the public, by both deterrence and sanctions, are applicable here. The United States Supreme Court reviewed and documented the necessity to impose special treatment on employees of railroads, due to the numbers and kinds of accidents which are engendered when employees are under the influence of drugs or alcohol. That documentation is no less relevant and applicable to operators of motor vehicles, whether they be private vehicles such as the automobile in this case, or buses carrying large numbers of people, or trucks carrying an enormous array of products, some of which are extremely lethal and toxic, capable of damaging large areas and entire communities, or heavy transports carrying bridge beams and heavy equipment, which travel the hills of Pennsylvania and are capable of death and destruction over large areas if not properly controlled. The potential for harm on the highways of Pennsylvania, which is one of the most extensive highway systems in the world and one which involves tunnels, bridges, mountain roads, narrow passages, fog, ice, snow and rainy conditions, is so necessary of regulation as to go without question. It appears the potential for death, destruction and great public harm is far exceeded by the vehicle traffic on the Pennsylvania highways than is the case with the railroad system in this state. It is unquestionably necessary to assure that people, who are incompetent to drive because of drug and alcohol use and who, by their illegal use, dramatically increase the dangerousness and lethalness of the vehicle which they drive, are regulated. There cannot be any question about the necessity of adequate statutory provisions to prevent, deter and sanction those people who abuse this privilege to drive and then defy the regulations.

Thus a balancing test which the majority has refused to apply, if related to the privacy concerns of the individual as compared with the general governmental interest in this area of the law, clearly mandates, in a very narrow and restricted way, an application which favors the governmental interest. As we have said before, the intrusion by tests relating to the use of alcohol or drugs has been considered minimal by both the United States Supreme Court and the Courts of this Commonwealth. The statutory scheme which equates the privilege of driving to an implied assent to drive legally and without the use of alcohol is not an unreasonable one. The statutory scheme is also a measured scheme in which the intrusion is limited to the degree necessary in order to provide the maximum effectiveness in protecting the public while at the same time minimally intruding into the private interest.

Reviewing the statutory scheme, it is evident the legislature intended that under the implied consent law, a person who obtains a driver’s license and drives on the public highways gives up his right to a warranted search and seizure of blood, urine or breath samples, under 75 Pa.C.S. § 1547(a), if, prior to arrest, probable cause exists and an officer believes the driver is under the influence of drugs or alcohol. Under those conditions, a sample of blood, breath or urine could be taken without a warrant and without consent. See Quarles, supra. This section has been interpreted to mean, as discussed above, that probable cause must exist to believe a person is under the influence.

However, this applies only to those cases when a person is on the highway and no accident resulting in injury or death is at issue. The law thereby establishes a minimal intrusion where the need is not established to go further. However, in the “implied consent” provision of the Motor Vehicle Code, 75 Pa.C.S. § 1547(a)(2), the legislature recognized that when a person is injured to the degree of needing medical attention or a death occurs as a result of an vehicular accident, the ultimate condition to be prevented or deterred exists and this requires, as a governmental interest and public concern, the right to go further and mandates testing both for the purpose of deterrence and for the purpose of sanctions.

The greater danger and greater harm having been realized in actuality, the implied consent law goes further than subsection (a)(1) and eliminates the requirement of probable cause. A further reason for doing so is easily evident. If a party is injured in the accident and before the police can or perhaps should go further in evaluating that party’s condition to establish probable cause, he may have been transported to a hospital for treatment. By the time the police obtain an opportunity to deal with that person to ascertain whether probable cause for testing exists, the basis for ascertainment of probable cause may have dissipated. If for medical reasons the party was totally beyond contact of the police in the conduct of their investigation when there was a serious injury and the police were not able to observe the individual or to smell the odors of alcohol prior to the time the alcohol dissipated from the person’s system, then the person would escape the review that any other person, who might have been under the influence of drugs or alcohol, is subjected to by the implied consent laws. There is no better example of the above than the companion case of Commonwealth v. Kohl, 395 Pa.Super. 73, 576 A.2d 1049 (1988), which the majority also decided, under the reasoning it propounds here, on the unconstitutionality of 75 Pa.C.S. § 1547(a)(2). There, in an early morning accident, appellant/driver was rendered unconscious and his two passengers were killed. He was hospitalized and did not regain consciousness until the following day. After investigating the scene of the accident, police went to the hospital and requested a blood alcohol test, which established a blood alcohol content of .15 per cent. A motion to suppress this test result, on the basis of a fourth amendment right, was denied. In reversing the conviction, the majority makes it impossible for the Commonwealth to pursue a party who, through his knowing illegal behavior, has produced death and destruction, simply because his medical condition does not permit a finding of probable cause to test.

As stated above, the intrusion in terms of obtaining blood, urine or breath for the purpose of the test has been determined in Skinner and in other cases to be minimal. The goal to be achieved is the deterrence of uncontrolled and incompetent drivers by assuring that after the fact, there will be no escape from accountability when injury or death occurs in an accident in which the abuser was involved.

This governmental interest is much greater than the minimal intrusion resulting to the individual. This is a special necessity situation for which neither a warrant for arrest nor probable cause can be justified when the balance between the public and governmental interest and the private interest are weighed. When more persons are killed on our public highways each year than are killed in most of the wars in which this country has participated and the only effective weapon to reduce the carnage on the highways is by screening those persons who have ingested drugs or alcohol while driving or who have been involved in serious accidents while under the influence, then the right of the individual to be tested without probable cause being shown is far less than the need of the public to have the tests performed.⁴

I would affirm the judgment of sentence.

BROSKY, J., joins.

1 . There were other provisions of the regulations, dealing with testing of employees on mere suspicion when no accident had occurred, which were discussed and approved by the Supreme Court but which are not relevant to this review.

2 . While the Commonwealth would have us find that the search was consensual as appellant gave actual consent to the test, I am willing to adopt the majority’s view and that of the trial court that the consent, if uninformed and unconstitutional because of lack of probable cause, was a nullity. Commonwealth v. Monahan, 378 Pa.Super. 623, 549 A.2d 231 (1988).

Evidence such as blood tests are not testimonial in nature and consequently fall within the ambit of the fourth amendment, not the fifth amendment. Thus the Miranda warnings have no significance as to the voluntariness of the blood test, or the coerciveness implied by failing to warn a driver. Also see Commonwealth v. Anderl, 329 Pa.Super. 69, 477 A.2d 1356 (1984) (breathalyzer results). Also, no Miranda waiver is required where the appellant is not taken into custody. Pennsylvania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988); Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988); Commonwealth v. Britcher, 386 Pa.Super. 515, 563 A.2d 502 (1989). Also see Commonwealth v. Ellis, 379 Pa.Super. 337, 549 A.2d 1323 (1988), allocatur denied, 522 Pa. 601, 562 A.2d 824 (1989) (defendant not in custody when questioned in his hospital room).

3 . The statutory construction act, 1 Pa.C.S. § 1901 et seq., provides:

§ 1921. Legislative intent controls

(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:

(1) The occasion and necessity for the statute.

(2) The circumstances under which it was enacted.

(3) The mischief to be remedied.

(4) The object to be attained.

(5) The former law, if any, including other statutes upon the same or similar subjects.

(6) The consequences of a particular interpretation.

(7) The contemporaneous legislative history.

(8) Legislative and administrative interpretations of such statute.

4 . Commonwealth v. Leninsky, 360 Pa.Super. 49, 519 A.2d 984 (1986), discusses the role of governmental interest in preventing and controlling the extensive harm caused by irresponsible drivers. “ ‘The carnage caused by drunk drivers is well documented and needs no detailed recitation here.’ South Dakota v. Neville, 459 U.S. 553, 558, 103 S.ct. 916, 919, 74 L.Ed.2d 748 (1983). ‘The slaughter on the highways of our Nation exceeds the death toll of all our wars.’ Perez v. Cambell, 402 U.S. 637, 657, 91 S.Ct. 1704, 1715, 29 L.Ed.2d 233 (1971) (Blackmun, J., concurring). In the past decade, over 250,000 people have died in alcohol related accidents. Each year, 708,000 people are injured, 74,000 seriously____ From 1972 to 1981, the number of alcohol related fatal accidents in Pennsylvania increased 154%. It would be feckless to argue that the Commonwealth’s interest in ending the carnage is less than paramount.” Id. 360 Pa.Super. at 57, 519 A.2d at 988-89 (footnote omitted).