30th May 2014

If a person is pulled over in Pennsylvania and police believe the driver is under the influence, the driver is said to have impliedly consented to chemical testing, usually a breathalyzer or blood testing. As a licensed driver in PA, implied consent is consent that is not expressly granted by a person, but rather inferred from simply holding a valid driver’s license. In routine DUI cases the result is an essential involuntarily agreement to chemical testing. Currently, when administering these chemical tests, the officer must read an informed consent form (DL-26) and have the driver sign to acknowledge its reading. This form advises the driver that a failure to consent to the testing will result in a highest tier DUI charge.

This practice contradicts the US Supreme Court’s decision in the case of Missouri v. McNeely (2013). In this case, the Court determined that in a DUI case, absent emergency circumstances a warrant must be secured prior to blood chemical testing despite implied consent associated with driver’s licenses.   In its holding, Supreme Court Justice Sotomayor, stated for consent to a blood test to be valid there must be “current consent” and not merely informed or prior consent. The Court reasoned the invasion of the body by a needle for blood test constitutes a violation of a person’s right against an illegal search and seizure under the 4th Amendment of US Constitution. The Missouri rules of informed consent are similar to those in Pennsylvania.

In recent cases defending those accused of DUI, I have found the Commonwealth of PA argues that signing the informed consent form at a hospital serves as current consent and therefore a warrant is not needed. This is the opposite of Justice Sotomayor’s decision. Currently, under Pennsylvania law, if an officer believes the driver of a vehicle is incapable of safe driving due to their observations or through field sobriety tests, they may take the driver for chemical testing to determine what the blood alcohol level of the driver. In her opinion, Justice Sotomayor found requiring a warrant a Judge determines whether enough evidence is present to perform the invasive blood test and avoid a Constitutional violation.

Prior to the issuing of the McNeely decision, the Philadelphia Magazine predicted a potential conflict if the Court upheld the warrant requirement. Over a year has passed since the article and the McNeely decision and Pennsylvania courts have yet to rule on how the McNeely warrant requirement applies to Pa’s informed consent rule. It will be interesting to see how Pa Courts begin to decide how the McNeely warrant requirement fits in those situations where a warrant is readily available and no emergency exists.

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