J-S16019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SARAH RUTH DEFER,

Appellant No. 1119 MDA 2014

Appeal from the Judgment of Sentence of June 6, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003966-2013

BEFORE: PANELLA, OLSON and OTT, JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 19, 2015

Appellant, Sarah Ruth Defer, appeals from the judgment of sentence 

entered on June 6, 2014. After careful consideration of the arguments 

raised before this Court, we affirm.

During the suppression hearing, the parties stipulated to the facts 

contained in the Wyomissing Police Department Incident Report Form. 

Wyomissing Police Officer Robert J. Pehlman created the form, wherein he 

declared:

At [10:24 p.m.] on Sunday[,] March 31, 2013[,] I 

responded to 845 Woodland Road for [a] report of an 

accident with injuries. On location I discovered a one 

vehicle accident involving a white 2013 Dodge [A]venger 

bearing North Carolina registration []. The car was 

apparently attempting to negotiate a slight left turn and 

struck a curb and guard rail on the right side of the road, 

throwing the vehicle to the left side of the [r]oad, where it 

became disabled against the curb on that side. Inside the 

vehicle, and seated in the passenger seat, was a white 
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female subsequently identified as [Appellant,] of Laveen[,] 

Arizona. [Appellant] was wearing a Reading Hospital 

employee identification and was in possession of a [V]ocera 

belonging to the hospital. [Appellant] was barely conscious 

and unable to provide any information other than to say 

that she was the operator of the vehicle at the time of the 

crash. [Appellant] must have been thrown [into] the 

passenger seat from the driver’s side on impact. 

[Appellant] had visible injuries to her face and appeared to 

be visibly intoxicated. There was a strong odor of alcohol 

emanating from the vehicle. . . . 

After obtaining the necessary documentation from the 

vehicle and a bag in the vehicle belonging to [Appellant], I 

followed Western Berks ambulance to the Reading Hospital. 

[Appellant] was not conscious enough to speak to, and was 

immediately sedated by the [h]ospital staff in order to 

facilitate treatment. I requested that blood be drawn[,] at 

which time a Geriann Kuberski drew the blood at exactly 

[11:28 p.m.] and prepared the specimen to be transported 

to [St. Joseph’s Hospital] to ascertain a blood [alcohol] 

content. . . . 

I left [] Reading Hospital at exactly [11:39 p.m.], and 

arrived at [St. Joseph’s Hospital] at [11:50 p.m.] where I 

delivered the [specimen] to the laboratory at that location. 

I subsequently received the laboratory report which was 

certified on April 2, 2013. The blood alcohol content for 

[Appellant], as documented in [the] specimen, was 0.264. 

Charges of driving under the influence to be filed against 

[Appellant].

Incident Report Form, dated 4/14/13, at 1. 

Following Appellant’s arrest for driving under the influence of alcohol 

(“DUI”),1 Appellant filed a pre-trial motion to suppress. In relevant part, 

Appellant’s suppression motion reads:

____________________________________________

1 Specifically, the Commonwealth charged Appellant with DUI, highest rate 

of alcohol (second offense). See 75 Pa.C.S.A. § 3802(c).
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I. Factual Background

1. On or about March 31, 2013[, Appellant] was involved in 

a single vehicle motor vehicle crash in Wyomissing, Berks 

County, [Pennsylvania].

2. [Appellant] was rendered unconscious and was taken by 

ambulance to the Reading Hospital and Medical Center.

3. At the Hospital, Wyomissing Police Officer Pehlman 

instructed the hospital to draw blood from [Appellant; 

Appellant] was still unconscious at this time. Officer 

Pehlman then transported the blood for blood alcohol 

testing.

4. Officer Pehlman did not obtain or attempt to obtain a 

search warrant for [Appellant’s] blood.

5. Officer Pehlman did not have consent to draw blood.

6. There was no exigent circumstance, which would have 

waived the warrant requirement.

7. This procedure is known as a “forced blood draw.”

8. [Appellant] was subsequently charged with DUI and 

related offenses.

9. On April 17, 2013, the [United States] Supreme Court 

found that “forced blood draws” were a violation of a 

defendant’s [F]ourth [A]mendment rights. [Missouri v. 

McNeely, ___ U.S. ___, 133 S.Ct. 1552, 1568 (2013)]. 

Specifically, the Court noted that blood could only be 

withdrawn with consent or a search warrant.

II. Suppression

10. All of the foregoing paragraphs are incorporated herein 

by reference.

11. As [Appellant’s] blood was a “forced blood draw” made 

in violation of her [F]ourth [A]mendment rights, the blood, 
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the testing results[,] and any fruits derived therefrom are 

unlawful and must be suppressed under the [United States] 

and Pennsylvania Constitutions.

Appellant’s Pre-Trial Motion, 9/4/13, at 1-2.

The Commonwealth opposed Appellant’s motion and argued that 

McNeely did not apply to Appellant’s case. As the Commonwealth argued, 

McNeely was concerned solely with the “exigent circumstances” exception 

to the warrant requirement. In this case, however, the Commonwealth 

claimed that Appellant’s blood was taken pursuant to the “consent” 

exception to the warrant requirement. Commonwealth’s Response, 12/2/13, 

at 1-2. Specifically, the Commonwealth argued that, pursuant to 75 

Pa.C.S.A. § 1547(a), since Appellant was the driver of an automobile that 

was involved in a motor vehicle accident and since Officer Pehlman had 

probable cause to believe that Appellant was drunk, Appellant impliedly 

consented to the blood draw. See 75 Pa.C.S.A. § 1547(a). The 

Commonwealth further argued that, under 75 Pa.C.S.A. § 3755, Officer 

Pehlman did not need to obtain a warrant or to demonstrate exigent 

circumstances in order to instruct the hospital staff to perform the blood 

draw while Appellant received treatment in the hospital for injuries she 

sustained as a result of the motor vehicle accident. See Commonwealth’s 

Response, 12/2/13, at 1-2; 75 Pa.C.S.A. § 3755(a). Rather, the 

Commonwealth argued, Appellant’s consent to the search was implied under 

the circumstances. Commonwealth’s Response, 12/2/13, at 2; see also 

Commonwealth v. Riedel, 651 A.2d 135, 139-140 (Pa. 1994) (“[t]ogether, 
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[sections 1547 and 3755] comprise a statutory scheme that implies the 

consent of a driver to undergo chemical blood testing under particular 

circumstances”).

On November 18, 2014, the trial court held a hearing on Appellant’s 

suppression motion, where the parties stipulated to the facts contained in 

Officer Pehlman’s Incident Report Form. The trial court denied Appellant’s 

motion on December 13, 2014. 

Following a bench trial, the trial court found Appellant guilty of DUI 

under 75 Pa.C.S.A. § 3802(c) and, on June 6, 2014, the trial court 

sentenced Appellant to serve a term of 90 days to 5 years in prison. 

On Monday, July 7, 2014, Appellant filed a timely notice of appeal from 

her judgment of sentence. Appellant raises one claim on appeal:

Whether th[e trial] court erred in denying [Appellant’s pretrial] suppression motion, where the blood drawn from 

[Appellant] was obtained without a warrant or exigent 

circumstance[s] in violation of [Appellant’s] Fourth 

Amendment rights and no other blood sample has been 

shown to be admissible?

Appellant’s Brief at 4 (some internal capitalization omitted).

“Once a motion to suppress evidence has been filed, it is the 

Commonwealth’s burden to prove, by a preponderance of the evidence, that 

the challenged evidence was not obtained in violation of the defendant’s 

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 

Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an 
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appeal from the denial of a motion to suppress, our Supreme Court has 

declared:

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is whether the factual 

findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. When 

reviewing the ruling of a suppression court, we must 

consider only the evidence of the prosecution and so much 

of the evidence of the defense as remains uncontradicted 

when read in the context of the record. . . . Where the 

record supports the findings of the suppression court, we 

are bound by those facts and may reverse only if the legal 

conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (internal citations 

omitted). “It is within the suppression court’s sole province as factfinder to 

pass on the credibility of witnesses and the weight to be given their 

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super. 

2006). Moreover, we note that our scope of review from a suppression 

ruling is limited to the evidentiary record that was created at the 

suppression hearing.2 In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

____________________________________________

2 On October 30, 2013, our Supreme Court decided In re L.J. In L.J., our 

Supreme Court held that our scope of review from a suppression ruling is 

limited to the evidentiary record that was created at the suppression 

hearing. In re L.J., 79 A.3d at 1087. Prior to L.J., this Court routinely held 

that, when reviewing a suppression court’s ruling, our scope of review 

included “the evidence presented both at the suppression hearing and at 

trial.” See Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa. Super. 

2011), quoting Commonwealth v. Chacko, 459 A.2d 311, 317 n.5 (Pa. 

1983). L.J. thus narrowed our scope of review of suppression court rulings 

to the evidence presented at the suppression hearing. In this case, 

(Footnote Continued Next Page)
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Appellant’s brief to this Court is relatively undeveloped, disjointed, 

conclusory, and vague. However, it is apparent that the basis for Appellant’s 

entire claim is her contention that Pennsylvania’s implied consent statute is 

grounded in the “exigent circumstances” exception to the warrant 

requirement. According to Appellant, since McNeely “has eliminated a per 

se exigency in DUI blood draw cases,” “Pennsylvania can no longer recognize 

a per se exigency either.” Appellant’s Brief at 12-13. We conclude that 

Appellant’s claim on appeal does not entitle her to relief. 

“The Fourth Amendment to the [United States] Constitution and Article 

I, Section 8 of [the Pennsylvania] Constitution protect citizens from 

unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 

A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is 

deemed to be unreasonable and therefore constitutionally impermissible, 

unless an established exception applies.” Commonwealth v. Strickler, 

757 A.2d 884, 888 (Pa. 2000). As the Pennsylvania Supreme Court has 

held, “exceptions to the warrant requirement do exist. For example, actual 

consent, implied consent, search incident to lawful arrest, and exigent 

circumstances may negate the necessity of obtaining a warrant before 

conducting a search.” Riedel, 651 A.2d at 139 (internal footnote omitted). 

(Footnote Continued) _______________________

Appellant’s suppression hearing occurred after L.J. was decided. Therefore, 

the procedural rule announced in L.J. applies to the case at bar.
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Appellant bases her claim of trial court error entirely upon McNeely. 

As such, we will begin our analysis with an examination of McNeely.

In McNeely, a Missouri police officer pulled McNeely’s vehicle over and 

arrested him for DUI. After McNeely refused to provide the officer with a 

breath-test sample, the officer transported McNeely to a hospital and asked 

him whether he would consent to a blood test. “Reading from a standard 

implied consent form, the officer explained to McNeely that under state law 

refusal to submit voluntarily to the test would lead to the immediate 

revocation of his driver’s license for one year and could be used against him 

in a future prosecution.” McNeely, ___ U.S. at ___, 133 S.Ct. at 1556-

1557. McNeely refused to consent to the blood test. Id. ___ U.S. at ___, 

133 S.Ct. at 1557. 

Notwithstanding McNeely’s explicit refusal to consent to the blood test 

– and the fact that the officer had not obtained a warrant to search 

McNeely’s person – the officer directed a hospital employee to take 

McNeely’s blood. The employee took the blood sample and later testing 

revealed that McNeely’s blood alcohol content was in excess of the legal 

limit. Id. ___ U.S. at ___, 133 S.Ct. at 1557.

Following McNeely’s arrest, McNeely filed a suppression motion and 

claimed that the results of his blood test must be suppressed because “under 

the circumstances, taking his blood for chemical testing without first 

obtaining a search warrant violated his rights under the Fourth Amendment.” 

Id. ___ U.S. at ___, 133 S.Ct. at 1557. The trial court agreed with McNeely 
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and ordered the chemical test results suppressed; the Missouri Supreme 

Court affirmed. Both state courts concluded that, under the totality of the 

circumstances, exigent circumstances did not justify the warrantless search 

of McNeely’s person. Id. ___ U.S. at ___, 133 S.Ct. at 1557.

The United States Supreme Court granted the State’s petition for writ 

of certiorari upon the following issue: “whether the natural metabolization 

of alcohol in the bloodstream presents a per se exigency that justifies an 

exception to the Fourth Amendment’s warrant requirement for 

nonconsensual blood testing in all drunk-driving cases.” Id. ___ U.S. at 

___, 133 S.Ct. at 1556. The Supreme Court concluded that the natural 

metabolization of alcohol in the bloodstream did not present a per se 

exigency and that, “consistent with Fourth Amendment principles, [] 

exigency in [drunk-driving cases] must be determined case by case based 

on the totality of the circumstances.” Id. ___ U.S. at ___, 133 S.Ct. at 

1556 and 1558.

The Supreme Court began its analysis by noting that the “compelled 

physical intrusion beneath McNeely’s skin and into his veins to obtain a 

sample of his blood for use as evidence in a criminal investigation” 

constituted a search for Fourth Amendment purposes and that the invasion 

into McNeely’s body “implicate[d McNeely’s] most personal and deep-rooted 

expectations of privacy.” Id. ___ U.S. at ___, 133 S.Ct. at 1558 (internal 

quotations and citations omitted). As the Supreme Court explained, under 

its precedent, “a warrantless search of the person is reasonable only if it falls 
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within a recognized exception” to the warrant requirement. “One wellrecognized exception, and the one at issue in [McNeely], applie[d] when 

the exigencies of the situation make the needs of law enforcement so 

compelling that a warrantless search is objectively reasonable under the 

Fourth Amendment.” Id. ___ U.S. at ___, 133 S.Ct. at 1558 (internal 

quotations and citations omitted). In particular, the Supreme Court 

explained, it has “recognized that in some circumstances law enforcement 

officers may conduct a search without a warrant to prevent the imminent

destruction of evidence.” Id. ___ U.S. at ___, 133 S.Ct. at 1559.

The McNeely Court noted that, in applying the exigent circumstances 

exception, Supreme Court precedent requires that a court look “to the 

totality of the circumstances” and determine whether “there [was a] 

compelling need for official action and no time to secure a warrant.” Id. ___ 

U.S. at ___, 133 S.Ct. at 1559. Nevertheless, before the Supreme Court, 

the State of Missouri requested that the Court “adopt [a] categorical rule” of 

exigency in drunk-driving cases. As Missouri argued:

whenever an officer has probable cause to believe an 

individual has been driving under the influence of alcohol, 

exigent circumstances will necessarily exist because [blood 

alcohol content] evidence is inherently evanescent. As a 

result, the State claims that so long as the officer has 

probable cause and the blood test is conducted in a 

reasonable manner, it is categorically reasonable for law 

enforcement to obtain the blood sample without a warrant.

Id. ___ U.S. at ___, 133 S.Ct. at 1560.
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The Supreme Court recognized the fact that, “as a result of the human 

body’s natural metabolic processes, the alcohol level in a person’s blood 

begins to dissipate once the alcohol is fully absorbed and continues to 

decline until the alcohol is eliminated.” Id. ___ U.S. at ___, 133 S.Ct. at 

1560. Nevertheless, the McNeely Court concluded that it would not depart 

from its “totality of the circumstances” test in drunk-driving cases and, thus, 

it would not adopt Missouri’s proposed “categorical rule” of exigency in such 

cases. Id. ___ U.S. at ___, 133 S.Ct. at 1560-1561. Although the Supreme 

Court “d[id] not doubt that some circumstances will make obtaining a 

warrant impractical such that the dissipation of alcohol from the bloodstream 

will support an exigency justifying a properly conducted warrantless blood 

test,” the McNeely Court held: “[i]n those drunk-driving investigations 

where police officers can reasonably obtain a warrant before a blood sample 

can be drawn without significantly undermining the efficacy of the search, 

the Fourth Amendment mandates that they do so.” Id. ___ U.S. at ___, 

133 S.Ct. at 1561.

From the above analysis, it is apparent that McNeely focused solely 

upon the exigent circumstances exception to the warrant requirement. 

Indeed, the Supreme Court noted that McNeely explicitly refused to 
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consent to a blood test; therefore, the Supreme Court did not consider the 

validity or effect of Missouri’s “implied consent” statute.3 

Despite these circumstances, Appellant here bases her entire claim for 

relief upon McNeely. According to Appellant, the Commonwealth’s implied 

consent statute is grounded upon the exigencies of “time’s dissipating effect 

on the evidence.” Appellant’s Brief at 12-13, quoting Commonwealth v. 

Kohl, 615 A.2d 308, 315 (Pa. 1992). As Appellant argues, since McNeely

held that “the natural dissipation of alcohol in the bloodstream does not 

constitute an exigency in every case sufficient to justify conducting a blood 

test without a warrant,” 75 Pa.C.S.A. §§ 1547(a) and 3755 no longer 

support warrantless blood draws on the basis of implied consent. Therefore, 

Appellant claims, McNeely is “directly on point” and we should vacate her 

judgment of sentence, reverse the trial court’s suppression order, and 

remand for a new trial.

____________________________________________

3

In McNeely, a plurality of the Court recognized (with seeming approval) 

the fact that “all 50 States have adopted implied consent laws that require 

motorists, as a condition of operating a motor vehicle within the State, to 

consent to [blood alcohol content] testing if they are arrested or otherwise 

detained on suspicion of a drunk-driving offense.” McNeely, ___ U.S. at 

___, 133 S.Ct. at 1566. The plurality recognized that these implied consent 

laws “impose significant consequences when a motorist withdraws consent” 

and are one of the “legal tools” that states use “to enforce their drunkdriving laws and to secure [blood alcohol content] evidence without 

undertaking warrantless nonconsensual blood draws.” Id. ___ U.S. at ___, 

133 S.Ct. at 1566.
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The Commonwealth takes a contrary position. Arguing that McNeely

has no applicability to the case at bar, the Commonwealth maintains that 

McNeely concerned the “exigent circumstances” exception to the warrant 

requirement, whereas the case at bar concerns the “consent” exception to 

the warrant requirement. In particular, the Commonwealth claims, pursuant 

to 75 Pa.C.S.A. § 1547(a), Appellant gave her “implied consent” to the blood 

test and, since she was unconscious prior to and during the search, 

Appellant never revoked this consent. The Commonwealth reasons that, 

since Appellant never revoked her implied consent, Officer Pehlman did not 

need to obtain a warrant or demonstrate exigent circumstances to perform 

the search of her person, as 75 Pa.C.S.A. § 3755 permitted him to require 

hospital personnel to withdraw Appellant’s blood without a warrant. 

Therefore, according to the Commonwealth, Appellant’s claim on appeal 

must fail. 

We conclude Appellant’s specific argument to this Court does not 

entitle her to relief. 

As is relevant to the current case, Pennsylvania has an “implied 

consent” law that reads:

[75 Pa.C.S.A.] § 1547. Chemical testing to determine 

amount of alcohol or controlled substance

(a) General rule.--Any person who drives, operates or is 

in actual physical control of the movement of a vehicle in 

this Commonwealth shall be deemed to have given consent 

to one or more chemical tests of breath, blood or urine for 

the purpose of determining the alcoholic content of blood or 
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the presence of a controlled substance if a police officer has 

reasonable grounds to believe the person to have been 

driving, operating or in actual physical control of the 

movement of a vehicle:

(1) in violation of . . . 3802 (relating to driving under 

influence of alcohol or controlled substance) . . .; or 

(2) which was involved in an accident in which the 

operator or passenger of any vehicle involved or a 

pedestrian required treatment at a medical facility or 

was killed. 

(b) Suspension for refusal.—

(1) If any person placed under arrest for a violation of 

section 3802 is requested to submit to chemical testing 

and refuses to do so, the testing shall not be conducted 

but upon notice by the police officer, the department 

shall suspend the operating privilege of the person as 

follows: 

(i) Except as set forth in subparagraph (ii), for a 

period of 12 months. 

(ii) For a period of 18 months if any of the following 

apply: . . .

. . .

(2) It shall be the duty of the police officer to inform the 

person that: 

(i) the person's operating privilege will be suspended 

upon refusal to submit to chemical testing; and 

(ii) if the person refuses to submit to chemical 

testing, upon conviction or plea for violating section 

3802(a)(1), the person will be subject to the 

penalties provided in section 3804(c) (relating to 

penalties). 

(3) Any person whose operating privilege is suspended 

under the provisions of this section shall have the same 
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right of appeal as provided for in cases of suspension for 

other reasons.

75 Pa.C.S.A. § 1547(a) and (b).4 

Also relevant to the case at bar is 75 Pa.C.S.A. § 3755, entitled 

“[r]eports by emergency room personnel.” In pertinent part, this statute 

reads:

[75 Pa.C.S.A.] § 3755. Reports by emergency room 

personnel

(a) General rule.--If, as a result of a motor vehicle 

accident, the person who drove, operated or was in actual 

physical control of the movement of any involved motor 

vehicle requires medical treatment in an emergency room of 

a hospital and if probable cause exists to believe a violation 

of section 3802 (relating to driving under influence of 

alcohol or controlled substance) was involved, the 

emergency room physician or his designee shall promptly 

take blood samples from those persons and transmit them 

within 24 hours for testing to the Department of Health or a 

clinical laboratory licensed and approved by the Department 

of Health and specifically designated for this purpose. . . . 

Test results shall be released upon request of the person 

tested, his attorney, his physician or governmental officials 

or agencies.

75 Pa.C.S.A. § 3755(a).

A panel of this Court has previously explained:

together, sections 1547 and 3755 comprise a statutory 

scheme which, under particular circumstances, not only 

____________________________________________

4 Of note, Appellant has never claimed that she was “under arrest” at the 

time the blood sample was taken and Appellant has never claimed that she 

was entitled to the statutory right of refusal, as provided in 75 Pa.C.S.A. 

§ 1547(b). See, e.g., Commonwealth v. Myers, ___ A.3d ___, ___, 2015 

WL 3652667, at 7 (Pa. Super. 2015).
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imply the consent of a driver to undergo chemical or blood 

tests, but also require hospital personnel to withdraw blood 

from a person, and release the test results, at the request 

of a police officer who has probable cause to believe the 

person was operating a vehicle while under the influence.

Commonwealth v. Seibert, 799 A.2d 54, 64 (Pa. Super. 2002) (internal 

quotations and citations omitted); see also Riedel, 651 A.2d at 139-140 

(“[t]ogether, [sections 1547 and 3755] comprise a statutory scheme that 

implies the consent of a driver to undergo chemical blood testing under 

particular circumstances”).

At the outset, Appellant is incorrect to claim that Pennsylvania’s 

implied consent law is based solely upon the exigent circumstances 

exception to the warrant requirement and “time’s dissipating effect on the 

evidence.” Rather, implied consent laws – such as Pennsylvania’s implied 

consent law – were enacted for a variety of reasons, including: “to address 

the hazard of impaired drivers on public roads,” Todd v. Commonwealth, 

Dep’t of Transp., Bureau of Driver Licensing, 723 A.2d 655, 658 (Pa. 

1999); “to facilitate [the] prosecution of chemically impaired drivers,” 

Riedel, 651 A.2d at 141; “to rid the highways of drunk driving,” Hinnah v. 

Director of Revenue, 77 S.W.3d 616, 619 (Mo. 2002) (internal quotations 

and citations omitted); and, as “a bargain between drivers and the state[; 

i]n exchange for the use of the roads within the state, drivers consent to 

have their breath [or blood] tested if a police officer has reason to believe 

the driver is intoxicated,” State v. Morale, 811 A.2d 185, 188 (Vt. 2002).
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Further, as both our Supreme Court and this Court have held, 

Pennsylvania’s implied consent law is not a mere subpart of the “exigent 

circumstances” exception to the warrant requirement. Rather, our Courts 

have held that an individual’s implied consent in drunk-driving cases satisfies 

the “consent” exception to the warrant requirement – which is an entirely 

separate exception from the “exigent circumstances” exception. Riedel, 

651 A.2d at 139-140 (our Supreme Court held: “[t]ogether, [sections 1547 

and 3755] comprise a statutory scheme that implies the consent of a 

driver to undergo chemical blood testing under particular circumstances”) 

(emphasis added); Seibert, 799 A.2d at 64 (“together, sections 1547 and 

3755 comprise a statutory scheme which, under particular circumstances, . . 

. imply the consent of a driver to undergo chemical or blood tests”) 

(emphasis added); Commonwealth v. Keller, 823 A.2d 1004, 1010 (Pa. 

Super. 2003) (interpreting sections 1547 and 3755 and holding that, since 

the trooper had probable cause to believe the defendant was driving under 

the influence of alcohol, “[the defendant’s] consent to undergo chemical 

or blood tests was implied, and [hospital] personnel were required to 

withdraw blood from [the defendant] and release the test results”) 

(emphasis added); Commonwealth v. Eisenhart, 611 A.2d 681, 683 (Pa. 

1992) (“[b]ecause his consent is implied until the person actually 

refuses, under subsection (a) of Section 1547, his actual consent would be 

no different from his remaining silent. Thus, under the Implied Consent 

provision, Section 1547(a), testing is allowed absent an affirmative showing 
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of the subject’s refusal to consent to the test at the time that the testing is 

administered”) (emphasis added); see also Commonwealth v. Shaw, 770 

A.2d 295, 301-302 (Pa. 2001) (Castille, J. dissenting) (explaining: “[T]he 

Riedel Court simply acknowledged and applied certain bedrock principles of 

search and seizure jurisprudence: i.e., that searches without a warrant are 

generally unreasonable, but exceptions to the warrant requirement exist, 

including actual and implied consent, where warrantless searches have been 

deemed reasonable. [The Pennsylvania Supreme] Court’s construction of 

Article I, § 8 is identical in this particular instance, i.e., [the Supreme Court] 

recognize[s] a preference for warrants, while also recognizing the 

reasonableness of warrantless searches in some circumstances, including 

consent cases”) (internal citations and emphasis omitted); see also 

Commonwealth v. McCoy, 975 A.2d 586, 589 (Pa. 2009) (holding, in a 

Sixth Amendment “right to counsel” case that, “[b]ased upon the statutory 

language [contained in section 1547(a)], it is clear that if an individual 

chooses to operate a motor vehicle in this Commonwealth, the 

consent to submit to a chemical test has already been given”)

(emphasis added).

On appeal to this Court, Appellant simply claims that, since 

Pennsylvania’s implied consent statute is based upon the exigencies of 

“time’s dissipating effect on the evidence,” ergo, under McNeely, the 

implied consent statute is unconstitutional because it “recognize[s] a per se

exigency.” From the above discussion, it is apparent that Appellant’s claim 
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on appeal necessarily and immediately fails, as Pennsylvania’s implied 

consent law was enacted for a variety of reasons apart from the exigencies 

that exist in drunk-driving cases and both our Supreme Court and this Court 

have held that the implied consent law falls under the “consent” exception 

to the warrant requirement – not the “exigent circumstances” exception. 

Since Appellant has raised no claim that Pennsylvania’s implied consent law 

is otherwise unconstitutional (either facially or as applied) or that, under the 

totality of the circumstances in this case, her implied consent was not 

objectively valid, we conclude that Appellant is not entitled to relief in this 

case.5, 6, 7 As such, we affirm Appellant’s judgment of sentence. 

____________________________________________

5 Within Appellant’s brief to this Court, Appellant makes the conclusory 

statement that 75 Pa.C.S.A. § 3755(a) “has clearly been invalidated by the 

McNeely decision.” Appellant’s Brief at 10. However, Appellant has not 

provided any explanation whatsoever as to why section 3755(a) “has clearly 

been invalidated” by McNeely. See Appellant’s Brief at 10-11. Therefore, 

Appellant’s claim is waived. Rabatin v. Allied Glove Corp., 24 A.3d 388, 

396 (Pa. Super. 2011) (holding that the Superior Court “may not act as 

counsel for an appellant and develop arguments on [her] behalf”). Further, 

we note that Appellant does not explain why McNeely “clearly” invalidated 

section 3755(a), given that McNeely was concerned with the exigent 

circumstances exception and our Courts have held that “sections 1547 and 

3755 comprise a statutory scheme which, under particular circumstances, . . 

. imply the consent of a driver to undergo chemical or blood tests.” 

Seibert, 799 A.2d at 64 (emphasis added). 

6 Within Appellant’s brief, Appellant also declares: “Appellant would also 

point out that it is not 100% clear that [section] 3755 even applies” because 

“[s]ection 3755 applies to blood drawn at the initiation of medical personnel 

[whereas] in this case the blood was drawn at the request of the police.” 

Appellant’s Brief at 11. To the extent this equivocal statement constitutes a 

claim for relief, Appellant did not raise the claim before the trial court. 

Therefore, the claim is waived. Pa.R.A.P. 302(a) (“[i]ssues not raised in the 

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lower court are waived and cannot be raised for the first time on appeal”). 

Moreover, we note that, in Shaw, our Supreme Court explained:

[75 Pa.C.S.A. §] 3755(a) is, to say the least, inartfully 

drafted. For some vague and curious reason, the legislature 

has required a probable cause determination without 

specifying who is to make such determination, or how such 

an abstract requirement is to be met. The request of a 

police officer, based on probable cause to believe a 

violation of [the law relating to driving under the influence 

of alcohol or a controlled substance], would seem to 

satisfy the probable cause requirement and therefore 

mandate that hospital personnel conduct [blood 

alcohol content] testing. Likewise, a determination by 

hospital personnel familiar with Section 3755(a), that 

probable cause existed to believe that a person requiring 

treatment had violated [the law relating to driving under the 

influence of alcohol or a controlled substance], would also 

seem to mandate that hospital personnel conduct [blood 

alcohol content] testing.

Shaw, 770 A.2d at 299 n.3 (emphasis added); Commonwealth v. Barton, 

690 A.2d 293, 299 (Pa. Super. 1997) (“[w]e therefore hold that, under the 

statutory scheme developed through sections 1547 and 3755, once an 

officer establishes probable cause to believe that a person operated a motor 

vehicle under the influence, and subsequently requests that hospital 

personnel withdraw blood samples for testing of alcohol content, the officer 

is entitled to obtain the results of such tests, regardless of whether the test 

was performed for medical purposes or legal purposes”).

7 Within Appellant’s brief, Appellant implies that McNeely has rendered 

Pennsylvania’s implied consent statute unconstitutional. See Appellant’s 

Brief at 14. McNeely does not stand for the broad proposition suggested by 

Appellant. Certainly, McNeely merely rejected Missouri’s claim that “the 

natural metabolization of alcohol in the bloodstream presents a per se

exigency that justifies an exception to the Fourth Amendment’s warrant 

requirement for nonconsensual blood testing in all drunk-driving cases.” 

McNeely, ___ U.S. at ___, 133 S.Ct. at 1556. Thus, McNeely did not 

invalidate implied consent statutes – it was simply not concerned with such 

statutes. Further, even after McNeely, the police may still claim that 

exigent circumstances necessitated a warrantless blood draw. However, as 

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Judgment of sentence affirmed. Jurisdiction relinquished.

Judge Panella joins.

Judge Ott concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/19/2015

(Footnote Continued) _______________________

our Supreme Court has explained, “consistent with Fourth Amendment 

principles, [] exigency in [drunk-driving cases] must be determined case by 

case based on the totality of the circumstances.” Id. ___ U.S. at ___, 133 

S.Ct. at 1556 and 1558.