[J-94-2016][M.O. – Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

DARRELL MYERS,

Appellee

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No. 7 EAP 2016

Appeal from the Judgment of Superior 

Court entered on 6/15/15 at No. 2774 

EDA 2013 (reargument denied 8/7/15) 

affirming the order entered on 8/27/13 in 

the Court of Common Pleas 

Philadelphia County, Criminal Division 

at No. MC-51-CR-0052681-2012

ARGUED: September 14, 2016

CONCURRING OPINION

CHIEF JUSTICE SAYLOR DECIDED: July 19, 2017

I agree with the affirmance of the Superior Court but on materially different 

grounds. 

I.

As concerns the issue of statutory construction, my view of Section 1547 of the 

Vehicle Code, see 75 Pa.C.S. §1547, substantially aligns with that of Justice Mundy. 

See Dissenting Opinion, slip op. at 1-5. However, 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 v. North Dakota, 

__ U.S. __, 136 S. Ct. 2160 (2016) (finding unconstitutional an implied-consent statutory 

scheme permitting a blood draw where criminal sanctions were imposed for a refusal). 
[J-94-2016][M.O. – Wecht, J.] - 2

To Justice Mundy’s well-reasoned statutory analysis, I would merely add that, as 

relates to the notion of voluntary consent, although there may be contrary views from 

the appellate courts of other jurisdictions, see Lead Opinion, slip op. at 21 (citing 

Williams v. State, 771 S.E.2d 373, 377 (Ga. 2015)), it seems to me that the voluntary 

act of operating a vehicle suffices to establish the initial consent to chemical testing. 

See 75 Pa.C.S. §1547(a). The United States Supreme Court has confirmed that 

consent inferred from context, rather than contemporaneous expression, is generally 

constitutional within the implied-consent framework. See Birchfield, __ U.S. at __, 136 

S. Ct. at 2185 (citing Florida v. Jardines, 569 U.S. 1, __, 133 S. Ct. 1409, 1415-16 

(2013); Marshall v. Barlow's, Inc., 436 U.S. 307, 313, 98 S. Ct. 1816, 1821 (1978)); see 

also People v. Hyde, 393 P.3d 962, 970 (2017) (Eid, J., concurring) (“In Birchfield, the 

Court reasoned that ‘inferr[ing]’ such consent to search is reasonable, essentially as a 

matter of law, from the statutory ‘context.’ . . . [T]he defendant is deemed by statute to 

have consented to BAC testing by virtue of driving on the roads, making irrelevant his 

inability to consent (due to his unconscious state) at the scene.” (alteration in original) 

(quoting Birchfield, __ U.S. at __, 136 S. Ct. at 2185)).1 Thus, it can be concluded here 

 

1

In rejoinder, the main opinion recounts a California appellate court’s speculative 

concerns of implied consent principles being extended to improperly infringe other areas 

of protected privacy interests. See Lead Opinion, slip op. at 22 n.17 (quoting California 

v. Arredondo, 199 Cal. Rptr. 3d 563, at 577-78 (Cal. Ct. App.), review granted and 

opinion superseded by 371 P.3d 21 (Cal. 2016)). Such superficial comparisons 

disregard the unique context of implied consent laws, per which state legislatures are 

attempting to redress the intractable social ills associated with impaired driving. See, 

e.g., Birchfield, __ U.S. at __, 136 S. Ct. at 2166 (“Drunk drivers take a grisly toll on the 

Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting 

billions of dollars of property damage every year.”). Indeed, such context serves as the 

basis for the Supreme Court having “referred approvingly to the general concept of 

implied-consent laws that impose civil penalties and evidentiary consequences on 

motorists who refuse to comply.” See id. at __, 136 S. Ct. at 2185 (citing Missouri v. 

McNeely, __ U.S. __, __, 133 S. Ct. 1552, 1565-66 (2013) (plurality); South Dakota v. 

(continued...)
[J-94-2016][M.O. – Wecht, J.] - 3

that Myers voluntarily consented to testing via his operation of the motor vehicle. See 

Dissenting Opinion, slip op. at 3.

II.

As pertains to the constitutional aspect, I believe that Birchfield applies and 

requires suppression in this case.

2

 See Birchfield, __ U.S. at __, 136 S. Ct. at 2185-86

(“It is another matter, however, for a State not only to insist upon an intrusive blood test, 

but also to impose criminal penalties on the refusal to submit to a test. There must be a 

limit to the consequences to which motorists may be deemed to have consented by 

virtue of a decision to drive on public roads. . . . [M]otorists cannot be deemed to have 

consented to submit to a blood test on pain of committing a criminal offense.”).

3

I realize that Birchfield’s application to situations involving unconscious motorists 

is not straightforward, given that criminal penalties attaching to a refusal may be viewed 

as of no import in a circumstance in which a person is unconscious and incapable of 

 

(...continued)

Neville, 459 U.S. 553, 560, 103 S. Ct. 916, 920-21 (1983)). In this respect, courts have 

“recognized the sui generis nature of . . . comprehensive laws addressing the issue of 

drinking and driving.” People v. Harris, 828 N.Y.S.2d 832, 845 (Rochester City Ct. 

2006) (citing People v. Prescott, 745 N.E.2d 1000 (N.Y. 2001)), judgment modified and 

remanded, 870 N.Y.S.2d 859 (Monroe County Ct. 2008). 

 

2 Although I agree with the main opinion that this case does not present a “facial 

constitutional challenge” to the entire statutory scheme, Lead Opinion, slip op. at 30,

Myers has disputed the constitutionality of a blood draw from an unconscious motorist,

thus placing the issue before the Court. See, e.g., Commonwealth v. Myers, 118 A.3d 

1122, 1124 (Pa. Super. Ct. 2015) (noting Myers’ challenge pursuant to Missouri v. 

McNeely, __ U.S. __, 133 S. Ct. 1552 (2013)).

3 As Justice Mundy correctly observes, the aggravated mandatory minimum penalties 

imposed pursuant to a refusal in Pennsylvania are criminal punishments for 

constitutional purposes. See Dissenting Opinion, slip op. at 8 n.8 (citing, inter alia,

Alleyne v. United States, __ U.S. __, __, 133 S. Ct. 2151 (2013)).
[J-94-2016][M.O. – Wecht, J.] - 4

refusing. However, previously in its opinion, the Supreme Court had stressed its 

inclination in favor of a categorical rule, see Birchfield, __ U.S. at __, 136 S. Ct. at 2179-

80, and I find that this preference may aid in explaining the Court’s motivation for 

extending its holding to a scenario as to which its dispositive rationale might not 

otherwise apply. See id. at __, 136 S. Ct. at 2184-85 (“It is true that a blood test . . . 

may be administered to a person who is unconscious (perhaps as a result of a crash) or 

who is unable to do what is needed to take a breath test due to profound intoxication or 

injuries. But we have no reason to believe that such situations are common in drunkdriving arrests, and when they arise, the police may apply for a warrant if need be.”

(emphasis added)). At least one other state supreme court has expressed a similar 

view, observing that, although the above quote from Birchfield arose in the searchincident-to-arrest analysis, the notion also reached to the implied-consent context. See 

North Carolina v. Romano, __ S.E.2d __, __ n.9, 2017 WL 2492782, at *9 n.9 (N.C. 

June 9, 2017); see also Hyde, 393 P.3d at 968 (“[T]he [Birchfield] Court considered laws 

that impose criminal penalties on a driver's refusal to be going a step too far.”); Devon 

Beeny, An Alcohol Mindset in A Drug-Crazed World: A Review of Birchfield v. North 

Dakota, 12 DUKE J. CONST. L. & PUB. POL'Y SIDEBAR 239, 248 (2017) (“[T]the Court . . . 

draws the line of ‘unreasonable’ conditions at criminalization . . ..” (citing Birchfield, __ 

U.S. at __, 136 S. Ct. at 2186)). 

Justice Baer joins in full and Justice Donohue joins Part II of this concurring 

opinion.