Commonwealth v. Bush , 1996 Pa. Dist. & Cnty. Dec. LEXIS 164 ( 1996 )

REILLY, J.,

On October 15, 1994, defendant above-named was involved in a motor vehicle accident and transported to the Philipsburg Area Hospital. While at the hospital, it appears that no treatment was necessary but that hospital personnel withdrew blood at the request of the state trooper investigating the accident for purposes of obtaining the defendant’s blood alcohol content. Prior to the withdrawal of blood the defendant had not been officially arrested for driving under the influence but had been advised both of his Miranda rights and the Implied Consent Law. Further, before the blood was drawn defendant had indicated a refusal to submit to a blood alcohol test. In addition, both parties agree that the trooper had reasonable cause to request the sample.

Defendant now seeks to suppress the results of the blood tests in light of the fact that defendant had previously refused to submit thereto under the provisions of 75 Pa.C.S. §1547. Commonwealth argues that this situation is properly governed by 75 Pa.C.S. §3755 and the Supreme Court’s decision in Commonwealth v. Riedel, 539 Pa. 172, 651 A.2d 135 (1994).

This court is of the opinion that section 3755 does not apply here in that defendant was not treated at the hospital and had previously indicated his refusal to submit to the subject test. In Riedel, supra, the blood had been taken for purposes of medical treatment whereas in the instant case, no medical treatment was provided and the blood was drawn at the request of the prosecuting police officer. It would appear that to permit the Commonwealth to proceed to admit the results of the test would effectively deny the defendant his right to refuse under section 1547, supra, and render the provisions of that section moot.

Wherefore, the court enters the following:

ORDER

Now, April 4, 1996, following argument and briefs into the above-captioned motion to suppress, it is the order of this court that said motion be and is hereby sustained and the results of the blood test to determine blood alcohol content shall be and are hereby suppressed.