J-A06018-15

2015 PA Super 140

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DARRELL MYERS

Appellee No. 2774 EDA 2013

Appeal from the Order August 27, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-CR-0052681-2012

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

OPINION BY OTT, J.: FILED JUNE 15, 2015

The Commonwealth appeals from the order entered August 27, 2013, 

in the Philadelphia Court of Common Pleas, denying relief from an order of 

the Philadelphia Municipal Court that suppressed test results from a 

warrantless blood draw of appellee, Darrell Myers, who was charged with 

driving under the influence of alcohol, in violation of 75 Pa.C.S. § 3802(a)(1)

(general impairment/incapable of driving safely).1 Based upon the following, 

we affirm.

From the trial court’s opinion, we quote:

____________________________________________

1

Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in good 

faith that the trial court’s order will terminate or substantially handicap the 

prosecution of this case, even though Myers was charged with general 

impairment. 
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Based upon the record kept in this matter, this Court makes the 

following findings of fact:

1. On December 29, 2012, at approximately 3:30 p.m., 

Officer James Bragg was on patrol in the city and county of 

Philadelphia. Motion to Suppress, Notes of Testimony, May 21, 

201[3], p. 7. His tour of duty took him to the location of 64 West 

Penn Street. Id.

2. Officer Bragg received a radio call for a person 

screaming in the area of 100 West Penn Street. Id. at 7. The 

flash was for a maroon SUV. Id. at 8.

3. As Officer Bragg came down Penn Street, he 

observed a maroon SUV which had its engine running. Id. The 

vehicle was observed with its brake lights repeatedly going on 

and off and [Myers] was observed seated in the driver’s seat. Id.

at 8.

4. Officer Bragg witnessed [Myers] maneuvering the 

brake pedal himself -- which is to say, he did not have his 

hazards on and he was the one causing his lights to go [on] and 

off repeatedly. Id. at 8.

5. The vehicle was in the running lane [i]n front of 64 

West Penn Street. Id.

6. Officer Bragg pulled up behind the vehicle with his 

overhead lights and sirens on. Id. at 8, 9. He watched as the 

male driver exited the vehicle and immediately began staggering 

towards the officer’s car. Id. at 9. Officer Bragg had not ordered 

[Myers] out of the vehicle. Id. at 8.

7. [Myers] tried to say something at that time -- he had 

very slurred speech, however. The officer could not understand 

him. Id. at 9. The officer convinced him to have a seat on the 

steps in front of a nearby building. Id. at 9.

8. [Myers] had a moderate smell of alcoholic beverages 

emanating from his person. Id. at 9.

9. Officer Bragg testified that he has been on the force 

for five years and come directly into contact with people under 

the influence of alcohol on a number of occasions. Id. at 14, 15. 
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Based upon his experience and contact with people under the 

influence, he believed that [Myers] was intoxicated. See id. at 

12.

10. Further, Officer Bragg saw a brandy bottle on the 

front seat of the vehicle. Id. at 12. He saw the item in plain 

view. Id. [Myers] left his vehicle door open as he stumbled 

outside during the initial stop. Id.

11. On the basis of the foregoing observations, Officer 

Bragg indicated that he did not believe [Myers] could then safely 

operate a vehicle. Id.

12. Officer Bragg then called a wagon and placed 

[Myers] under arrest for DUI. Id. at 23.

13. Officer Bragg then had [Myers] transported to the 

hospital to have him medically cleared -- the officer was of the 

opinion that [Myers] was intoxicated to the point where he 

needed medical attention and that the PDU would not be able to 

handle the matter. Id. at 23, 24.

14. Later that same day, around 4:45 p.m. on duty 

Officer [Matthew] Domenic arrived at Einstein Hospital. Id. at 25. 

He had received information that an individual arrested for DUI 

was at that hospital. Id. There, he observed [Myers] in a room in 

the emergency ward. Id. [Myers] was unconscious and 

unresponsive. Id.

15. [Myers] had been given four milligrams of Haldol by 

medical staff just a few minutes before the officer had arrived. 

Id. at 27.

16. Officer Domenic attempted to make contact with the 

unconscious [Myers]. Id. at 27. He spoke his name several times 

to no avail. Id. at 27, 28. He then proceeded to rea[d] the 

standard informed consent warnings to [Myers]. Id. at 28. 

[Myers] did not respond. Id. at 28.

17. Officer Domenic then requested that RN Kral perform 

a warrantless blood draw. Id. at 28.

18. That blood draw took place at 5:01 p.m. Id. at 28. 

[Two] tubes of blood were provided to the officer. Id. They were 
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placed into a drug scan blood kit and transported back to AID 

headquarters where they were placed into a secure refrigerator. 

Id.

19. The blood samples were placed on property receipt 

number 3078494. Id. They received a drug scan ID number and 

were submitted for testing. Id.

20. [Myers] never signed the informed consent 

warnings, as he was unconscious and unresponsive. Id.

21. The record is devoid of any evidence that the officers 

ever requested (or attempted to secure) a warrant prior to the 

blood draw being carried out.

Trial Court Opinion, 1/17/2014, at 2–4.

On May 21, 2013, Myers proceeded to a hearing before the Municipal 

Court on his suppression motion. Myers argued that (1) the physical 

evidence should be suppressed because Officer Bragg lacked probable cause 

to arrest him for DUI, and (2) the blood draw should be suppressed because 

there were no “exigent circumstances that would support a warrantless 

draw,”2 making it illegal under the United States Supreme Court’s holding in 

Missouri v. McNeely, 133 S. Ct. 1552 (2013). 

The Municipal Court judge granted the suppression motion in part, 

with respect to the blood draw. The Municipal Court judge concluded that the 

officers should have obtained a warrant because Myers was unconscious, 

could not consent, and it “was [not] unreasonable for the Commonwealth to 

____________________________________________

2 N.T., 5/21/2013, at 35.
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go get a warrant in this situation.” N.T., 5/21/2013, at 43–44. In support, 

the Municipal Court judge cited McNeely.

On June 17, 2013, the Commonwealth appealed the Municipal Court’s 

ruling to the Philadelphia Court of Common Pleas. On August 27, 2013, 

following a hearing, the Honorable Paula Patrick denied the Commonwealth’s 

appeal, and affirmed the decision of the Municipal Court. This appeal 

followed.3

The Commonwealth raises the following question for our review:

Did the lower court, sitting as an appellate court, err in holding 

that a warrant was required to obtain blood for a chemical test 

where the officer had probable cause to believe that [Myers] was 

driving under the influence of alcohol or a controlled substance?

Commonwealth Brief, at 4.

Our standard of review is well settled:

When the Commonwealth appeals from a suppression order, this 

Court may consider only the evidence from the defendant’s 

witnesses together with the evidence of the prosecution that, 

when read in the context of the record as a whole, remains 

uncontradicted. In our review, we are not bound by the 

suppression court’s conclusions of law, and we must determine if 

the suppression court properly applied the law to the facts. We 

defer to the suppression court’s findings of fact because, as the 

finder of fact, it is the suppression court’s prerogative to pass on 

____________________________________________

3

 At the same time that the notice of appeal was filed, the Commonwealth 

filed a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b), even though the trial court had not yet ordered it to do 

so. On January 17, 2014, Judge Patrick issued an opinion in support of her 

decision.
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the credibility of the witnesses and the weight to be given to 

their testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014) 

(citations omitted), appeal denied __ A.3d ___ (Pa. December 30, 2014).

At issue in this appeal is application of the recent United States 

Supreme Court decision in Missouri v. McNeely, supra. In McNeely,

at approximately 2:08 a.m., a Missouri police officer stopped 

McNeely’s truck after observing it exceed the posted speed limit 

and repeatedly cross the centerline. The officer noticed several 

signs that McNeely was intoxicated, including McNeely’s 

bloodshot eyes, his slurred speech, and the smell of alcohol on 

his breath. McNeely acknowledged to the officer that he had 

consumed “a couple of beers” at a bar, App. 20, and he 

appeared unsteady on his feet when he exited the truck. After 

McNeely performed poorly on a battery of field-sobriety tests and 

declined to use a portable breath-test device to measure his 

blood alcohol concentration (BAC), the officer placed him under 

arrest.

The officer began to transport McNeely to the station house. But 

when McNeely indicated that he would again refuse to provide a 

breath sample, the officer changed course and took McNeely to a 

nearby hospital for blood testing. The officer did not attempt to 

secure a warrant. Upon arrival at the hospital, the officer asked 

McNeely 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. See Mo. Ann. Stat. §§ 577.020.1, 577.041 (West 

2011). McNeely nonetheless refused. The officer then directed a 

hospital lab technician to take a blood sample, and the sample 

was secured at approximately 2:35 a.m. Subsequent laboratory 

testing measured McNeely’s BAC at 0.154 percent, which was 

well above the legal limit of 0.08 percent. See § 577.012.1.

133 S. Ct. 1556–1557. 
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McNeely sought to suppress the results, arguing that the warrantless 

blood draw violated his Fourth Amendment rights.4 The United States 

Supreme Court granted certiorari to resolve the issue “whether the natural 

dissipation of alcohol in the bloodstream establishes a per se exigency that 

suffices on its own to justify an exception to the warrant requirement for 

nonconsensual blood testing in drunk-driving investigations.” Id. at 1558. 

The Court held that “in drunk-driving investigations, 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.” Id. at 1568.

The McNeely Court ruled that “[i]n those driving situations 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. at 1561. The Court 

continued:

We do 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. That, however, is a reason to 

decide each case on its facts, as we did in Schmerber [v. State 

of California, 384 U.S. 757 (1966)], not to accept the 

____________________________________________

4 The Fourth Amendment provides: “The right of the people to be secure in 

their persons, houses, papers, and effects, against unreasonable searches 

and seizures, shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to be seized.”

U.S. Constitution, Amend. IV. 
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“considerable overgeneralization” that a per se rule would 

reflect. 

The context of blood testing is different in critical respects from 

other destruction-of-evidence cases in which the police are truly 

confronted with a “‘now or never’” situation. In contrast to, for 

example, circumstances in which the suspect has control over 

easily disposable evidence, BAC evidence from a drunk-driving 

suspect naturally dissipates over time in a gradual and relatively 

predictable manner. Moreover, because a police officer must 

typically transport a drunk-driving suspect to a medical facility 

and obtain the assistance of someone with appropriate medical 

training before conducting a blood test, some delay between the 

time of the arrest or accident and the time of the test is 

inevitable regardless of whether police officers are required to 

obtain a warrant. ... Consider, for example, a situation in which 

the warrant process will not significantly increase the delay 

before the blood test is conducted because an officer can take 

steps to secure a warrant while the suspect is being transported 

to a medical facility by another officer. In such a circumstance, 

there would be no plausible justification for an exception to the 

warrant requirement.

Id. at 1561 (internal citations omitted).

The Court recognized that “exigent circumstances justifying a 

warrantless blood sample may arise in the regular course of law enforcement 

due to delays from the warrant application process.” Id. at 1563. However, 

the Court concluded that adopting a per se approach “would improperly 

ignore the current and future technological developments in warrant 

procedures.” Id. The Court opined that in a drunk-driving case, whether a 

warrantless blood draw is reasonable must be determined on a case-by-case 

basis, considering the totality of the circumstances. Id.

In the present case, the trial court, relying on McNeely, concluded 

“the Commonwealth failed to present competent evidence that there was an 
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exigency which would have justified the officer’s decision to order a 

warrantless blood draw.” Trial Court Opinion, 1/17/2014, at 7. The trial 

court explained:

The record below is devoid of any evidence indicating that it 

would have been impracticable or infeasible for the arresting 

officer (or, for that matter, the officer who ordered the blood 

sample test at the medical facility) to obtain a warrant in the 

circumstances. Further, [Myers] was actually unconscious when 

the blood draw at issue was performed. As such, he did not have 

the opportunity to decline or refuse to have his blood sample 

taken on the date in question. [Myers] was unconscious because 

he was given Haldol upon arriving at the hospital. The arresting 

officer did not testify that he could not secure a warrant in the 

time it took to transport [Myers] to the hospital to obtain 

medical assistance. The arrest took place at approximately 3:30 

p.m. — this was not a late-night drunk driving situation where 

securing a timely warrant might have proven extremely difficult 

or even impossible. Moreover, [Myers] was given the drugs 

which rendered him unconscious at approximately 4:40 p.m. 

The blood test at issue was not performed until 5:01 p.m. The 

record is devoid of any evidence that the officers did not have 

sufficient time to seek out and secure a warrant before 

conducting this blood draw --- both prior to [Myers’] arrival at 

the hospital and to his becoming unconscious.

Trial Court Opinion, 1/17/2014, at 7–8.

The Commonwealth argues that the trial court’s reliance on McNeely

is misplaced, because the McNeely Court did not consider the issue of 

whether an implied consent law is an exception to the warrant requirement. 

Relevant to this argument, the Pennsylvania implied consent statute reads, 

in pertinent part:

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 
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content of blood ... 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: ... in violation of 

section ... 3802 (relating to driving under the influence of alcohol 

or controlled substance) .... 

75 Pa.C.S. § 1547(a)(1). Section 1547(b)(1) further provides, “if a 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 ....” 75 Pa.C.S. § 1547(b)(1).

5

____________________________________________

5

In Commonwealth v. Eisenhart, 611 A.2d 681, 684 (Pa. 1992), the 

Pennsylvania Supreme Court held that a conscious driver has the explicit 

right under Section 1547(b) to refuse a blood draw. The Court explained: 

[U]nder the Implied Consent provision, Section 1547(a), testing 

is allowed absent an affirmative showing of the subject’s refusal 

to consent to the test at the time that the testing is 

administered. Moreover, his initial consent does not preclude him 

from revoking his consent to the test. The statute grants an 

explicit right to a driver who is under arrest for driving under the 

influence to refuse to consent to chemical testing. The 

relationship between the Implied Consent provision of Section 

1547(a) and the suspension for refusal under Section 1547(b) is 

such that a driver may revoke his Implied Consent under 

Subsection (a) by refusing. The sanction of the one year 

suspension for refusing to consent to the chemical testing is 

used as an incentive to induce a driver to submit to the test, 

provided the probable cause requirements of subsection (a) are 

met.

Id. at 683–684. The Eisenhart Court held that the blood test results 

acquired in contravention of a driver’s right to refuse consent to blood 

alcohol testing under the Motor Vehicle Code must be suppressed. The Court 

specifically noted that the issue of an unconscious driver was not before it. 

Id. at 684.
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The Commonwealth maintains that under Section 1547(a)(1), where 

an officer has probable cause to arrest a defendant for DUI, and an 

unresponsive defendant has not affirmatively refused consent, the officer 

may conduct a warrantless blood draw. Commonwealth’s Brief at 11. In 

support, the Commonwealth cites Commonwealth v. Kohl, 615 A.2d 308 

(Pa. 1992), and Commonwealth v. Keller, 823 A.2d 1004 (Pa. Super. 

2003). 

In Kohl, where the unconscious defendant had his blood drawn for 

DUI investigative purposes pursuant to then-existing Section 1547(a)(2), 

the Pennsylvania Supreme Court held that the provision was unconstitutional 

because it lacked a probable cause requirement. The Commonwealth 

argues:

[T]he officers in Kohl did not have probable cause to believe the 

individuals were intoxicated. The Supreme Court affirmed 

suppression. Notably, the Supreme Court clarified that implied 

consent is constitutional so long as the officer has probable 

cause, hypothesizing: “Indeed, if the police officers had 

observed any signs of intoxication, the blood tests would have 

been authorized.” Kohl, 615 at 31[6].

Commonwealth’s Brief at 13.6

____________________________________________

6 We are aware that the Kohl Court added to its discussion that “if the police 

officers had observed any signs of intoxication, the blood tests would have 

been authorized by 75 Pa.C.S.A. § 1547(a)(1).” However, as will be 

discussed, the issue of Section 1547(a)(1) was not before the Kohl Court, 

which addressed the constitutionality of Section 1547(a)(2).
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The Commonwealth also relies on Keller, wherein the defendant was 

involved in a one-vehicle accident. A state trooper on the scene noticed the 

defendant had an odor of alcohol, as well as glassy and bloodshot eyes. Due 

to his injuries, the defendant was transported to the hospital. He was read 

his O’Connell7 warnings, but the trooper could not remember the 

defendant’s response. State police requested a blood draw, which indicated 

a BAC well in excess of the legal limit. Under these circumstances, this 

Court concluded that the implied consent provision, 75 Pa.C.S. § 1547(a)(1), 

did not violate the defendant’s rights against unreasonable search and 

seizure under the Pennsylvania Constitution.

Myers relies on McNeely, and argues that because the Commonwealth 

failed to show exigency or an effort to get a warrant, this Court should affirm 

the trial court. See Myers’ Brief at 6–7. Myers argues that the 

Commonwealth’s reliance on the implied consent law as a per se rule that 

permits the involuntary taking of a person’s blood when there is probable 

cause to believe the person committed a drunk driving offense, is 

inconsistent with McNeely, which rejected a per se rule. See id. at 8.

Moreover, Myers contends “he was deprived of his statutory right to 

refuse the taking of his blood[,]” and police cannot “then use his inability to 

verbally refuse as the basis to involuntarily take his blood.” Id. at 9. Myers 

____________________________________________

7 See Com., Dept. of Transp., Bureau of Traffic Safety v. O'Connell, 

555 A.2d 873 (Pa. 1989).
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further argues “[Pennsylvania’s implied consent law] penalizes the refusal to 

consent to a blood draw. It does not permit the involuntary seizure of a 

blood sample.” Myers’ Brief at 11–12. 

Upon review, we agree with Myers that the trial court properly denied 

relief to the Commonwealth. Our reasons are as follows.

First, in Kohl, the only issue before the Court was the constitutionality 

of then-existing Section 1547(a)(2). In addition, Keller is distinguishable 

on its facts, in that the arresting officer could not remember defendant’s 

response when he was advised of his right to refuse blood testing. 

Furthermore, Keller discussed the interplay between the implied consent 

statute and 75 Pa.C.S. § 3755,8 which is not at issue herein. Although the 

Commonwealth argues that Keller applies with “full force” to the present 

case “[b]ecause the officer here had probable cause to arrest for DUI and 

[Myers] did not affirmatively refuse his consent,”9the Commonwealth 

____________________________________________

8 Section 3755 provides, in pertinent part: 

If, as a result of a motor vehicle accident, the person who drove 

... 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 ....

75 Pa.C.S. § 3755.

9 Commonwealth’s Brief at 14.
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ignores the fact that under the unique circumstances of this case, Myers 

could not be warned or respond because medication administered by 

hospital staff had rendered him unconscious. This fact brings us to the next 

point.

Pennsylvania’s implied consent statute provides a driver under arrest 

with the statutory right of refusal to blood testing, see 75 Pa.C.S. § 

1547(b)(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 ....”). As discussed, Section 1547 provides for 

chemical testing when consent is not withdrawn pursuant to subsection 

(b)(1), and precludes a blood draw when consent is withdrawn and imposes 

penalties.10 Here, Myers was arrested for DUI and transported to the 

hospital, but was not given the applicable warnings until a later time, at 

which point he could not claim the statutory protection of Section 

1547(b)(1). 

The facts of record show that Officer James Bragg encountered Myers 

at approximately 3:30 P.M. This encounter did not result from a vehicular 

accident, but rather from Officer Bragg responding to a report of a person 

screaming in the area of 100 West Penn Street. Officer Bragg observed a 

____________________________________________

10 See 75 Pa.C.S. § 1547(b) (“Suspension for refusal”), and § 1547(e)

(“Refusal admissible in evidence”).
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maroon SUV in the running lane, and saw Myers exit the vehicle and stagger 

toward the police vehicle. N.T., 5/21/2013, at 7–8. Based on Officer 

Bragg’s observations, he arrested Myers for DUI, and called for a police 

wagon to transport him to the hospital “because he appeared to be 

intoxicated to a point where he needed medical attention.” Id. at 24. Later, 

at 4:45 p.m., Officer Matthew Domenic, who was the chemical testing 

officer, appeared at the hospital.11 Id. at 25. 

Officer Domenic observed that Myers was unconscious and 

unresponsive, and learned that Myers’ unconsciousness was due to Haldol 

that hospital staff had administered to Myers minutes earlier, at 

approximately 4:40 p.m. Id. at 27. Officer Domenic attempted to make 

contact with Myers by speaking his name and tapping him on the shoulder, 

but there was no response. Officer Dominic then proceeded to give Myers 

the O’Connell warnings and still receiving no response, ordered the blood 

draw. The blood draw did not occur until 5:01 P.M. Id. at 27–28.

Finally, we consider the import of McNeely. As discussed above, in 

McNeely, the United States Supreme Court held “in drunk-driving 

investigations, the natural dissipation of alcohol in the bloodstream 

____________________________________________

11 As we have noted, this is not a case where the hospital was required to 

withdraw blood. See 75 Pa.C.S. § 3755. The Commonwealth relies solely on 

the implied consent statute for the blood draw.
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does not constitute an exigency in every case sufficient to justify 

conducting a blood test without a warrant.” Id. at 1568 (emphasis added). 

We recognize this case differs from McNeely where the blood draw 

was nonconsensual. Nevertheless, because police did not act pursuant to 

the implied consent law until 4:45 p.m., after Myers had been rendered 

unconscious by an intervening cause that occurred subsequent to his DUI 

arrest and transport to the hospital, we conclude McNeely controls here. 

Further, we agree with the trial court that the Commonwealth failed to 

justify the failure to obtain a warrant prior to the 5:01 p.m. blood draw. 

Therefore, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/15/2015