For the Defense - Volume 2, Issue 3 - 2017 - 54

greater protections than its federal counter part.
Justice Saylor filed a dissent. Justice Mundy did not
participate in the decision.
Amicus Authors: Aaron Marcus, Karl Baker and
Keir Bradford-Grey, of the Defender Association
of Philadelphia

Commw. v. Myers:
Decided: July 19, 2017
Nature of the case: Myers was arrested for DUI
and taken to the hospital for medical treatment.
While at the hospital, hospital staff administered
Haldol to Myers, which rendered him unconscious.
A few minutes later an officer arrived. The officer
attempted to communicate with Myers, but Myers
was unresponsive. Nevertheless, the officer read
to Myers O'Connell warnings. Myers, who was still
unconscious, did not respond. The officer then instructed the nurse to draw Myers' blood. No warrant was obtained. It was undisputed that Myers
was unconscious and that he neither heard the officer give the O'Connell warnings nor signed the
implied consent form.
Issue: The Court granted allowance of appeal
"...to consider the lawfulness of a warrantless
blood draw conducted upon a motorist who, having been arrested for DUI, had then been rendered
unconscious by medical personnel before a police
officer provided O'Connell warnings and before
the officer requested the motorist's submission to
a chemical test."
Amicus Argument: PACDL, relying on Birchfield
v. North Dakota, argued, among other things, that
Pennsylvania's implied consent scheme is unconstitutionally coercive and cannot serve as an exception to the warrant requirement.
Held: The Court's decision was, again, splintered. Justice Wecht wrote the majority opinion,
which was joined, in full, by Justices Donohue and
Dougherty. Justice Todd joined a portion of the
opinion and the mandate. The majority, including Justice Todd, held that Myers had a right to
refuse chemical testing and that his unconscious
state prevented him from making that decision;
the Court concluded that "the implied consent
statute does not authorize a blood test conducted under such circumstances." Justices Wecht,
Donohue and Dougherty also opined that "...in
the absence of actual, voluntary consent, statu-

For The Defense | Vol. 2, Issue 3

torily implied consent does not dispense with
the need for police to obtain a warrant before
conducting a chemical test of a DUI arrestee's
blood." The Wecht opinion does not address the
impact that Birchfield may have on the constitutional validity of Pennsylvania's implied consent
scheme. The majority concluded that Myers did
not give consent.
Justice Saylor filed a concurring opinion that
was joined, in full, by Justice Baer, and, in part, by
Justice Donohue. Justice Saylor asserted that, as to
issues involving statutory construction, his view of
Section 1547 of the Vehicle Code aligns with that
of Justice Mundy's dissent. Importantly, however,
Justice Saylor stated, "...as to the constitutional aspect, I believe that the criminal penalties attached
to a refusal to take a blood test render the statutory scheme in violation of the Fourth Amendment to the United States Constitution pursuant
to the United States Supreme Court's decision in
Birchfield..."
Justice Donohue joined the portion of Justice
Saylor's opinion that set forth his analysis on that
issue.
Justice Todd filed a concurring opinion to clarify the scope of her position. Justice Mundy filed
a dissent.
Amicus Authors: Ed Spreha, of the Law Offices
of Wagner and Spreha; Christopher M. Patterson,
of the Law Office of Christopher M. Patterson

CASE DECIDED BY SUPERIOR COURT
Commw. v. King:
Decided: July 12, 2017
Nature of the case: This case arose within the
context of a PCRA proceeding. Trial counsel was
wholly uncooperative with PCRA counsel and refused to respond to PCRA counsel. PCRA counsel
received information which reflected that the district attorney had contacted trial counsel. PCRA
counsel sought, and obtained, an order which precluded trial counsel from speaking with the district attorney concerning his representation of his
client until the evidentiary hearing.
Issue: "Did the PCRA court err when it barred
the Commonwealth from speaking with [Appellee's] trial counsel prior to an evidentiary hearing

Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 3 - 2017