Commonwealth v Kim David March, 2017 PA Super 18 (Pa. Super, 1/26/2017)

The Superior Court reversed a pre- Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016) Common Pleas decision suppressing blood seized without a warrant from an unconscious driver following an accident police believed involved DUI. Coming upon an accident scene, the police found Mr. March to be “out of it” and evidence of drug use on the front seat of his car. At the hospital, Mr. March was unconscious and could not be read the DL26. The police had probable cause, the Superior Court ruled, and the implied consent law gave police the power to seize the blood. The case, decided by the Common Pleas court three months before Birchfield, was remanded for further proceedings. The panel in this case made no mention of Birchfield.

Presumably, on remand, someone will raise Birchfield. One member of this panel was also a member of the panel that applied Birchfield for the first time in Commonwealth of PA v. David Eugene Evans, 2016 PA Super 293 (12/20/16). If the defendant cannot be coerced by the implied consent law into giving consent when conscious, it is hard to see how consent can be attributed to an unconscious one.