Question: Do motorists have a right to refuse a blood test? If the motorist is unconscious, may the withdraw blood without a warrant?

The Pennsylvania Supreme Court recently decided the case of Commonwealth v. Darrell Myers. In Myers, the police encountered the defendant in a stopped vehicle. The police testified that the defendant appeared to be under the influence, smelled of alcohol, had slurred speech and stumbled when exiting the vehicle. There was also a bottle of brandy on the car seat. Accordingly, the police started a DUI investigation.

The defendant was taken to the hospital because the police officer believed he needed medical assistance. The medical staff gave the defendant medication that rendered him unconscious.

The police officer arrived after the defendant had received this medication. The officer testified that the defendant was unconscious and unresponsive. The officer read him his rights with respect to refusing a blood test — the defendant did not respond. The officer then instructed the hospital to involuntarily draw blood from the defendant.

The Supreme Court held that, on these facts, the police were required to obtain either (i) the defendant’s consent to draw blood or (ii) a warrant to withdraw the blood. Because the police obtained neither, the Commonwealth could not use the defendant’s blood alcohol results against him.

And, importantly, PennDOT could not suspend the defendant’s license for “refusing” a chemical test.

The important parts of the Supreme Court’s holdings in Myers may be summarized as follows:

1.  A motorist arrested for DUI — even an unconscious one — has a right to refuse chemical testing.

2.  For a blood test to be constitutionally valid the consent must be given voluntarily (i.e., the person must be aware that he or she has consented to a blood draw). The question of whether the consent is voluntary is evaluated “under the totality of the circumstances” meaning courts will consider all the factors involved in making final determinations regarding voluntariness.

3.  A motorist must be informed about his right to refuse chemical testing before consent can be deemed valid. If the police do not accurately advise a motorist of his rights, the “consent” to withdraw blood will not be considered voluntary.

4.  If someone is unconscious, they cannot give voluntary consent (which, of course, should seem obvious).

5.  With respect to PennDOT license suspensions for “refusing” a chemical test, the inability to give consent does not mean the person has refused. An unconscious person cannot be punished by PennDOT (with a license suspension) for a “refusal” if a person is unable to consent to or refuse a blood test because he is unconscious state.

One important note here. The Supreme Court pointed out that in Myers, there was no evidence that an “exigency” (or emergency situation) existed which could have permitted a warrantless seizure of the defendant’s blood. This necessarily implies that if such an “exigency” did exist, the warrantless draw of the blood could conceivably have been used by the police.