Does McNeely impact PA’s DUI laws?

Earlier this week the U.S. Supreme Court held that the police cannot obtain BAC results without a warrant in every DUI case.  Some commentators, including the Allegheny County DA’s Office, quickly–and correctly–pointed out that this ruling won’t affect the majority of DUI cases brought in Pennsylvania.  The fact is that most DUI suspects agree to submit to blood tests when they learn that their licenses will be automatically suspended for one year if they refuse.  Those who refuse testing typically don’t have blood drawn and end up being prosecuted under the “general impairment” provision of the DUI law where prosecutors must prove intoxication through other means (field sobriety testing, observations of driving before being stopped, behavioral observations, etc.).

However, there is one category of DUI offenses where the McNeely decision could have a significant impact:  DUIs charged following a car accident.  In these scenarios, the suspect often isn’t able to consent.  Many hospitals routinely will draw blood to get a BAC for medical purposes.  However, few people know that hospital personnel can be ordered to draw blood to obtain a BAC if probable cause exists.

The statute authorizing such blood draws–section 3755 of the vehicle code–states that results can be obtained by government officials upon request.  Note that it does not say that a warrant is necessary.  This is where McNeely may change things in PA.

The statute doesn’t say who must determine whether probable cause exists, but McNeely provides plenty of support to argue that the results can only be released to the police pursuant to a search warrant.  Further, while Pennsylvania’s appellate courts have often stated that the drawing of blood doesn’t constitute a government search since hospital employees physically draw the blood, McNeely could provide a basis to defeat that logic, too.

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