The Pennsylvania Superior Court found that a warrantless blood draw was proper, despite improper implied consent warnings being read, because the suspect consented to the test before receiving the improper implied consent warnings. In Commonwealth v. Moser, two troopers were dispatched to a one motor vehicle crash. The vehicle had hit a stump that was off the road. One trooper stated that Moser appeared to be under the influence of alcohol because he smelled like alcohol, had bloodshot eyes, and slurred speech. Moser told the trooper that he drank at a friend’s house and he remembered being in the driver’s seat after the crash.
After speaking with Moser, they instructed him to complete field sobriety tests, which they claim he failed. The troopers stated that Moser was impaired and could not safely drive. Moser was handcuffed, placed under arrest, put into the back of a patrol vehicle, and transported to the hospital. On the way to the hospital, the troopers requested a blood draw to determine Moser’s blood alcohol content (BAC) and Moser allegedly agreed. Once at the hospital, the troopers advised him of his implied consent warnings in per the DL-26 form and Moser did not sign the form but indicated that he understood and held out his arm.
Moser’s attorney filed a motion to suppress the results of the blood test, claiming that the warrantless blood draw was in violation of the United State Supreme Court’s holding in Birchfield v. North Dakota. The trial court granted this motion and the Commonwealth filed an appeal shortly afterward. The court explained that Birchfield is not controlling in this case because Birchfield applies when a defendant’s consent is obtained based on the threat of additional criminal penalties if the blood test is refused. In Moser’s case, though the DL-26 form was read to Moser and improperly warned him of criminal penalties if the blood test was refused, Moser’s consent was obtained before the officer read the DL-26.
The Court relied on Commonwealth v. Haines, a case where it was unclear whether the defendant consented to the blood test before or after having been read the DL-26 form. In Haines, the court explained that if he had “validly consented before being informed that he faced enhanced criminal penalties for failure to do so, then his consent would not be tainted by the warning and the blood test results would be admissible. If, however, he did not consent until after [the officer] informed him that he would face enhanced criminal penalties if he refused to consent, then the trial court did not necessarily err in granting his motion to suppress test results.” The Superior Court established that, as a result of the Haines decision, consent provided prior to the reading of the DL-26 form, even when the consent is ambiguous, is not in violation of Birchfield.
Here, Moser’s consent was given on the way to the hospital, before the officers read the DL-26 form to him, avoiding Birchfield violations altogether, according to the majority. The Court reversed the trial court’s order granting Moser’s motion to suppress blood test results.
Judge Strassburger’s dissent aligns Moser with the facts in Commonwealth v. Evans, a case where the trial court found that consent was obtained after the improper warnings because the earlier statements of consent were ambiguous;“[j]ust as in Moser’s case, the trial court found that Evans consented to the blood draw after being read the implied consent warnings by the officer, not withstanding his earlier ambiguous acquiescence to a blood test while handcuffed in the patrol car.” In Evans, the Superior Court held that Birchfield applied and vacated the order denying the suppression motion.
To read Commonwealth v. Moser:
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Moser holds that even if improper implied consent warnings are given, ambiguous forms of consent prior to the warnings can make the consent legally valid. If you are being charged with a DUI or are concerned about your fourth amendment rights, call Fairlie & Lippy P.C. at (215) 997-1000.