September 11, 2017By Brian Manchester
Individual’s rights during a blood draw by the police have come front and center in the media this past week. As a nurse in Utah was arrested for refusing to provide the police a sample of a patient’s blood because the police lacked probable cause, they had no warrant, and the individual was not even under arrest. In addition, the patient was unconscious and could not consent to a voluntary blood draw. The police claimed they had a right to take the blood because of the implied consent law in Utah. It has been determined that the Nurse did nothing wrong and that the police were attempting to collect a blood sample illegally.
Pennsylvania also has an implied consent law under 75 PACSA 1547. The general is as follows:
Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath or blood 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 vehicle:
- in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock);
- or (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.
Now this law has been changed and modified, and sections have been deemed unconstitutional. Paragraph (2) has been deemed unconstitutional for many years however for some reason the legislature in Harrisburg has not removed this section of the law. In the general provision when it states that the officer has reasonable grounds this has been determined by the Courts to mean Probable Cause. Thus the officer cannot just come into your hospital room and take our blood; they need to have Probable Cause to ask for the blood sample. In addition this law has been questioned lately in whether or not it is constitutional. As the Courts have looked down on forced blood draws, including those of unconscious individuals; the Pennsylvania Supreme Court has stated that an individual has the right to refused and they have to have the ability to exercise that right. If they are unconscious they no longer have the ability to refuse. If the Police want a blood sample they can always request a warrant or request a warrant at a later date for individuals that are undergoing treatment when the hospital took a blood sample for medical purposes.
Whether or not this statute is Constitutional under the 4th Amendment and/or Pennsylvania’s Constitution Article 1 Section 8 that offers more protections then the Federal Constitution is a question that the Pennsylvania Supreme Court has not yet answered. As cases continue to be submitted to the Court we will have to wait and see if Pennsylvania’s Implied Consent Statute will be upheld or not. For now it is the law.
It is extremely important to contact an experienced law firm right away if you or someone you know is facing criminal charges in Pennsylvania. If you, your son, daughter, or loved one in Pennsylvania has been arrested for a crime in state or federal court in Pennsylvania you need legal representation. Here at Manchester and Associates, we represent people across the Commonwealth of Pennsylvania. For a strategy session, we can be contacted at 1-800-243-4878.
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