[J-43-2024]
                        IN THE SUPREME COURT OF PENNSYLVANIA
                                    MIDDLE DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.


     COMMONWEALTH OF PENNSYLVANIA,                 :   No. 16 MAP 2023
                                                   :
                         Appellant                 :   Appeal from the Order of the
                                                   :   Cumberland County Court of
                                                   :   Common Pleas, Criminal Division, at
                   v.                              :   No. CP-21-CR-3121-2021 dated
                                                   :   January 20, 2023
                                                   :
     LARRY WARDELL HUNTE,                          :   ARGUED: May 15, 2024
                                                   :
                         Appellee                  :

OPINION

 JUSTICE WECHT                                                   DECIDED: June 17, 2025
         This direct appeal presents a facial constitutional challenge to Section 3755 of the

 Vehicle Code. 1 That provision purports to authorize the warrantless seizure of blood

 samples from a person who requires medical treatment in an emergency room as a result

 of a motor vehicle accident, where there is probable cause to believe that the person

 unlawfully drove under the influence of alcohol or a controlled substance. The Court of

 Common Pleas of Cumberland County in this case declared Section 3755

 unconstitutional. We affirm. Section 3755 is facially unconstitutional under the Fourth

 Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania

 Constitution. 2

 1       75 Pa.C.S. § 3755.
 2      U.S. CONST. amend IV (“The right of the people to be secure in their persons,
 houses, papers, and effects, against unreasonable searches and seizures, shall not be
 (continued…)
                                             I.

       The challenged statute provides as follows:

       (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. This section shall be applicable to all injured occupants who were
       capable of motor vehicle operation if the operator or person in actual
       physical control of the movement of the motor vehicle cannot be
       determined. Test results shall be released upon request of the person
       tested, his attorney, his physician or governmental officials or agencies.

       (b) Immunity from civil or criminal liability.--No physician, nurse or
       technician or hospital employing such physician, nurse or technician and no
       other employer of such physician, nurse or technician shall be civilly or
       criminally liable for withdrawing blood or obtaining a urine sample and
       reporting test results to the police pursuant to this section or for performing
       any other duty imposed by this section. No physician, nurse or technician
       or hospital employing such physician, nurse or technician may
       administratively refuse to perform such tests and provide the results to the
       police officer except as may be reasonably expected from unusual
       circumstances that pertain at the time of admission. 3

       Section 3755 is a component of Pennsylvania’s “implied consent” scheme, which,

together with Section 1547, 4 is designed to facilitate the investigation and prosecution of

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.”); PA. CONST. art. I, § 8 (“The people shall be secure in their persons,
houses, papers and possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things shall issue without describing
them as nearly as may be, nor without probable cause, supported by oath or affirmation
subscribed to by the affiant.”). The Fourth Amendment is applicable to the States via the
Fourteenth Amendment. Mapp v. Ohio, 

 (1961).
3      75 Pa.C.S. § 3755.
4      Id. § 1547.


                                      [J-43-2024] - 2
driving-under-the-influence (“DUI”) offenses by requiring motorists to submit to chemical

testing in order to measure their blood alcohol concentration (“BAC”) and/or the presence

of controlled substances in their bodies. 5 As stated expressly in Section 1547(a), the

theory underlying the implied consent scheme is that, by electing to drive a vehicle in

Pennsylvania, a person “shall be deemed to have given consent” to a search of his or her

bodily fluids when a police officer develops “reasonable grounds to believe” that the

person has committed a DUI offense. 6 Although Section 1547 allows a person who has

been arrested for DUI to refuse a request and mandates that the testing not be conducted

against the arrestee’s will, the statute discourages refusal by imposing consequences

upon the exercise of that right, including driver’s license suspension, authorization to use

the refusal as evidence of guilt in a future DUI prosecution, and imposition of enhanced

criminal penalties upon the refusal to submit to breath testing, but not blood testing. 7

       Section 3755 has been described as the “emergency room counterpart” to Section

1547. 8 Unlike Section 1547, Section 3755 exclusively concerns blood testing, rather than


5     See Commonwealth v. Riedel, 

 (Pa. 1994) (observing that
Sections 1547 and 3755 “comprise a statutory scheme that implies the consent of a driver
to undergo chemical blood testing under particular circumstances”).
6      75 Pa.C.S. § 1547(a).
7      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 but upon notice by the police officer, the [Department of
Transportation] shall suspend the operating privilege of the person . . . .”); id. § 1547(e)
(providing that in a DUI prosecution, “the fact that the defendant refused to submit to
chemical testing as required by subsection (a) may be introduced in evidence along with
other testimony concerning the circumstances of the refusal”); id. § 1547(b)(2)(ii)
(requiring disclosure that “if the person refuses to submit to chemical breath 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)”).
8      Riedel, 

. As noted in Riedel, Sections 1547 and 3755 originally
were contained within the same section of the Vehicle Code, but were separated in a
(continued…)

                                      [J-43-2024] - 3
the broader “chemical testing” referenced in Section 1547, which includes breath testing. 9

Section 3755 also provides no right to refuse to submit to a blood draw. Consequently, it

also does not concern the imposition of civil or evidentiary consequences of the sort that

Section 1547 uses to deter refusal—Section 3755 does not contemplate a refusal to

consent at all. On its face, Section 3755 instead purports to authorize the seizure of a

person’s blood on the basis of probable cause to suspect DUI, without the need for a

search warrant or the demonstration of any circumstance-specific exception to the

warrant requirements of the Fourth Amendment and Article I, Section 8.

      For many years, warrantless blood draws conducted under “implied consent”

provisions widely were assumed to be consistent with the requirements of the Fourth

Amendment.      As discussed in detail below, developments in Fourth Amendment

jurisprudence in recent years have revealed the errors of that assumption.

      This is not the first time that our Court has considered a constitutional challenge to

Section 3755. In Commonwealth v. Jones-Williams, 10 the Superior Court considered the

constitutionality of this provision under the recent Fourth Amendment jurisprudence

developed by the Supreme Court of the United States, 11 and in light of this Court’s




1982 amendment. 

 at 140 n.2 (citing Act of June 17, 1976, P.L. 162, No. 81, § 1; Act
of December 15, 1982, P.L. 1268, No. 289, §§ 5, 11).
9     Compare 75 Pa.C.S. § 1547(a) (“chemical tests of breath or blood”) with id. § 3755
(“emergency room physician or his designee shall promptly take blood samples”).
10     Commonwealth v. Jones-Williams, 

 (Pa. Super. 2020) (“Jones-
Williams I”), rev’d, 

 (Pa. 2022). Subsequent uses of the short citation form
“Jones-Williams” will refer to this Court’s decision reversing Jones-Williams I.
11     See Missouri v. McNeely, 

 (2013); Birchfield v. North Dakota, 

 (2016); Mitchell v. Wisconsin, 

 (2019) (plurality). Each of these
decisions is discussed in detail below.


                                     [J-43-2024] - 4
discussion of the consequences of those federal decisions in Commonwealth v. Myers. 12

The Superior Court accordingly held that statutory “implied consent” does not “dispense

with the need to obtain a warrant,” and, thus, a blood draw conducted under the purported

authority of Section 3755 violates the Fourth Amendment and Article I, Section 8 of the

Pennsylvania Constitution. 13 On appeal, this Court concluded that the Superior Court

erred in considering the constitutionality of Section 3755 because it was unclear whether

Section 3755 applied under the circumstances of that case. 14 The difficulties in Jones-

Williams were that hospital personnel had drawn the defendant’s blood prior to any

request of the investigating officer, that the reason for the blood draw was not established

on the record, and that the officer appeared to have believed that he was seeking a blood

draw under Section 1547, rather than Section 3755, and filled out a form to that effect.15

Thus, the Jones-Williams Court found it unclear whether Section 3755 was implicated.

Invoking principles of constitutional avoidance, the Court accordingly vacated “the portion

of the Superior Court’s holding deeming Section 3755 unconstitutional.” 16

12      Commonwealth v. Myers, 

 (Pa. 2017) (statutory right of refusal
under 75 Pa.C.S. § 1547(b)(1) applies to unconscious arrestees). Myers was resolved
on statutory grounds, but a plurality consisting of the present author, Justice Donohue,
and Justice Dougherty, further opined that “implied consent is not an independent
exception to the warrant requirement” under developing Fourth Amendment
jurisprudence. Id. at 1173-81 (plurality). Unless otherwise indicated, references to Myers
herein refer to the portion of that decision that was joined by a plurality of the Court.
13     Jones-Williams I, 

.
14     Jones-Williams, 279 A.3d at 520 (“Because the record does not establish that
Section 3755 applied under these circumstances, the subsequent analysis of the statute’s
constitutionality should not be addressed.”).
15    Id. The Jones-Williams Court further concluded that the seizure of the previously
drawn blood there was not supported by exigent circumstances because the evidence
was no longer being metabolized after it was removed from the body. Id. at 518-19.
16      The present author, again joined by Justices Donohue and Dougherty, dissented
in part in Jones-Williams, opining that the constitutionality of Section 3755 was properly
(continued…)

                                      [J-43-2024] - 5
       The instant case was pending before the trial court when this Court decided Jones-

Williams. Following our decision, the trial court concluded that the factual impediments

noted in Jones-Williams were not present in the instant case. The court found Section

3755 to be unconstitutional, thereby placing before us again the question of its

constitutionality.

                                           II.

       On the evening of June 7, 2021, Pennsylvania State Police Troopers German and

Gayewski were dispatched to the scene of a single-vehicle accident on Newville Road in

West Pennsboro Township. As they approached the scene, the troopers observed a

badly damaged vehicle, which appeared to have rolled over several times, leaving a

substantial debris field.    Among the objects strewn near the vehicle were several

fentanyl 17 patches and open containers of alcohol. Two individuals were on the ground

nearby, having apparently been ejected from the vehicle during the crash.           First

responders already were rendering medical aid when the troopers arrived on the scene.

The driver was identified as Larry Wardell Hunte. The other individual, Mary Elizabeth

Staggs, was determined to have been a passenger in the vehicle. Ms. Staggs ultimately

died as a result of her injuries.

       A first responder informed the troopers that Hunte had admitted to them that he

was the driver of the vehicle and that he had been drinking. Trooper German spoke with

Hunte, noting that he appeared dazed and smelled of alcohol. Shortly thereafter, Hunte

was transported to Penn State Health Holy Spirit Medical Center for medical treatment.


at issue, and that the Superior Court was correct to deem the statute unconstitutional.
See id. at 521-38 (Wecht, J., concurring and dissenting).
17    Fentanyl is a synthetic opioid that is classified as a Schedule II controlled
substance in Pennsylvania. See Section 4(2)(ii)(6) of The Controlled Substance, Drug,
Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-
104(2)(ii)(6).


                                     [J-43-2024] - 6
Trooper German followed, while Trooper Gayewski remained to continue investigating

the crash site. When Trooper German arrived at Hunte’s bedside in the hospital, Hunte

was unconscious. Nonetheless, Trooper German attempted to obtain Hunte’s consent to

a blood draw, reading to him the warnings provided on the Department of Transportation

DL-26B form, which explains the requirements of Section 1547 and the consequences of

refusal to submit to a chemical test. Still unconscious, Hunte was unable to respond.

      Unable to obtain Hunte’s consent to a blood draw, Trooper German proceeded to

request that hospital personnel draw Hunte’s blood under the authority provided by

Section 3755. He did so using a form entitled “Certification of Request for Blood or Urine

Alcohol Testing.” Echoing the prerequisite for a blood draw under Section 3755, this form

required Trooper German to certify only “that a determination of probable cause, that the

individual was operating a motor vehicle while under the influence of alcohol or a

controlled substance, has been established.” 18 After Trooper German submitted this

form, a phlebotomist drew two vials of Hunte’s blood, without his knowledge or consent.

Trooper German later testified to his understanding that this form was predicated upon

Section 3755. 19




18      Hearing, 9/12/2022, Commonwealth’s Exhibit 1 (Geisinger Laboratory Medicine,
Certification of Request for Blood or Urine Alcohol Testing).
19    As Trooper German testified on redirect examination:
      Q: Trooper German, you mentioned that the reason for your request was
      that you believed that the crash was caused by impairment. Was it your
      understanding that this form was to request blood under Section 3755?
      A: That’s correct.
Notes of Testimony, Hearing, 9/12/2022 (“N.T.”), at 12. See also Commonwealth’s Brief
In Opposition to Defendant’s Omnibus Pretrial Motion, 10/27/2022, at 5 (“In compliance
with Section 3755, Holy Spirit Hospital has a specific form for law enforcement to request
blood samples be taken. This is the form that was properly used by Trooper German.”).


                                     [J-43-2024] - 7
       Although the troopers later obtained two different search warrants on the

application of Trooper Gayewski—one warrant to take possession of the blood sample

from the hospital and a second warrant to have the blood tested 20—it is undisputed that

Trooper German did not possess a search warrant for the blood draw at the time that it

was requested and performed. Importantly, the hospital personnel appeared to have

drawn Hunte’s blood for their own medical purposes prior to Trooper German’s request,

but this was not the blood draw that Trooper German sought and obtained under Section

3755, and it is not the blood that subsequently was tested for investigative purposes. As

Trooper German testified:

       Q: Did she only draw blood at your request or was the hospital also doing
       blood for medical purposes?
       A: They had already drew [sic] blood for medical purposes.
       Q: And then [she] drew a second vial at your request from the form, correct?
       A: That’s correct. 21

20     Trooper German testified:
       Q: When the blood was drawn pursuant to the form, did you take custody
       of that blood kit?
       A: I did not. She attempted to hand it to me but I told her to take that with
       her back to her lab, secure it, and [we] were going to be obtaining a search
       warrant to obtain the blood.
       Q: So it was your intention for you or another trooper to get a search warrant
       to actually take custody of and then test the blood?
       A: That’s correct.
N.T. at 11.
21     Id. at 10-11. Trooper German further clarified on cross-examination:
       Q: How many vials of blood were drawn when you were present?
       A: Two vials.
       Q: And those were the two vials that you requested the phlebotomist to
       draw?
(continued…)

                                      [J-43-2024] - 8
       Testing of Hunte’s blood revealed the presence of both alcohol and controlled

substances. Hunte was arrested and charged with homicide by vehicle while driving

under the influence, aggravated assault by vehicle while driving under the influence,

numerous DUI offenses based upon the amount of alcohol and the type of controlled

substances discovered in his blood, numerous summary Vehicle Code violations, and

recklessly endangering another person. 22 On February 22, 2022, Hunte filed an omnibus

pre-trial motion seeking suppression of the results of the blood testing and dismissal of

the charges derived from that testing. The trial court reserved its judgment on the motion

pending this Court’s decision in Jones-Williams. Following our decision in that case, the

trial court took up Hunte’s challenge to the constitutionality of Section 3755.

       The trial court first found that the instant case clearly implicated Section 3755. It

was undisputed that Hunte was involved in a motor vehicle accident, that he was the

driver of the vehicle, that he was transported to a hospital for emergency medical

treatment, that the facts known to Trooper German supported a finding of probable cause

to suspect DUI, and that Trooper German requested a blood draw on the basis of that

probable cause.     Moreover, the trial court opined that the facts could be “readily



       A: That’s correct.
       Q: Mr. Hunte never gave to consent to have those two vials drawn from his
       person, correct?
       A: That’s correct.
       Q: And you never obtained a warrant to have those two vials of blood drawn
       from his person?
       A: Not drawn.
Id. at 11-12.
22    See 75 Pa.C.S. §§ 3735(a), 3735.1(a), 3802(a)(1), 3802(c), 3802(d)(1)(i),
3802(d)(1)(iii), 3802(d)(2), 3802(d)(3), 3736(a), 3714(b), 3361, 3309(1), 3301(a),
4581(a)(2)(ii), 1515(a); 18 Pa.C.S. § 2705.


                                      [J-43-2024] - 9
distinguished” from the Jones-Williams case. 23 Where the reason for the blood draw in

Jones-Williams was not fully clear on the record, here, Hunte’s blood “was drawn at the

request of Trooper German.” 24 Moreover, while the officer in Jones-Williams did not

mention Section 3755 in his testimony and utilized a form that referenced Section 1547,

Trooper German made clear that he proceeded here under Section 3755, and he testified

to his understanding that the form that he used was predicated upon Section 3755. Thus,

the trial court reasoned, Section 3755 was squarely implicated, and there existed no non-

constitutional basis upon which to rule. 25

       Turning to the constitutionality of Section 3755, the trial court opined that the “law

concerning the concept of ‘implied consent,’ both within and without this Commonwealth,

is not a shining model of clarity.” 26 However, relying upon the Supreme Court of the

United States’ decision in Birchfield v. North Dakota and the plurality portion of this Court’s

decision in Myers, 27 the trial court concluded that implied consent statutes may impose

certain (non-criminal) consequences upon the refusal to submit to a blood draw, but they

do not “create an independent exception to the warrant requirement.” 28 Section 3755,

the trial court reasoned, does not concern the imposition of civil or evidentiary

consequences upon the refusal to submit, and unlike Section 1547, it provides no right of

refusal. Rather, Section 3755 facially “‘authorizes what the Fourth Amendment and

23     Trial Ct. Op., 1/20/2023, at 3.
24     Id. at 4.
25     The trial court acknowledged that Trooper German first sought to invoke Section
1547 by reading the DL-26B form to the unconscious Hunte, but the court regarded this
as “a separate effort,” the failure of which “then prompted the Trooper to request the taking
of [Hunte’s] blood under an alternative authority, i.e., § 3755, as he testified.” Id.
26     Id. at 5.
27     See supra nn. 11-12.
28     Trial Ct. Op., 1/20/2023, at 5.


                                         [J-43-2024] - 10
Article I, Section 8 would prohibit,’ i.e., a warrantless search falling within no recognized

exception to the usual rule.” 29 The trial court further noted that, although this Court in

Jones-Williams reversed the Superior Court’s similar constitutional holding, we did not do

so on the merits. Here, the court reasoned, “given the clearer applicability of § 3755 and

the absence of any alternative basis for disposition of the case, there is no escaping

[Hunte’s] constitutional challenge.”30

       The trial court accordingly declared that “75 Pa.C.S. § 3755 violates the Fourth

Amendment [to] the Constitution of the United States and Article I, Section 8 of the

Constitution of Pennsylvania.”31 In light of this finding, the trial court additionally granted

Hunte’s motion to dismiss the charges that were premised solely upon the testing of his

unconstitutionally obtained blood sample. The Commonwealth sought review of both

determinations. 32

       Due to the trial court’s declaration that a statute of this Commonwealth is

unconstitutional, we exercise direct appellate jurisdiction under Section 722(7) of the




29     Id. (quoting Myers, 

 (plurality)) (cleaned up).
30     

31     Order of Court, 1/20/2023.
32      See Pa.R.A.P. 311(d) (“In a criminal case, under the circumstances provided by
law, the Commonwealth may take an appeal as of right from an order that does not end
the entire case where the Commonwealth certifies in the notice of appeal that the order
will terminate or substantially handicap the prosecution.”).


                                      [J-43-2024] - 11
Judicial Code. 33 Also due to that finding, the Office of the Attorney General (“OAG”) has

submitted a brief in support of the constitutionality of Section 3755. 34

                                             III.

       The Commonwealth presents three issues. The Commonwealth contends that the

trial court should not have reached the question of the constitutionality of Section 3755

on the facts of this case, that the search warrants issued after the blood draw took place

authorized the seizure of the blood samples, and that the trial court accordingly erred in

suppressing the blood test results and in dismissing the charges based thereon. 35



33     42 Pa.C.S. § 722(7) (“The Supreme Court shall have exclusive jurisdiction of
appeals from final orders of the courts of common pleas in . . . [m]atters where the court
of common pleas has held invalid as repugnant to the Constitution, treaties or laws of the
United States, or to the Constitution of this Commonwealth, any treaty or law of the United
States or any provision of the Constitution of, or of any statute of, this Commonwealth, or
any provision of any home rule charter.”).
34     On May 16, 2024, counsel for the OAG filed an Application for Leave to File Post
Submission Communication, explaining that he fell ill before oral argument and was
unable to attend. The OAG thus seeks to supplement its filing with a memorandum
summarizing the arguments that the OAG would have presented at oral argument.
Although such requests are atypical and we do not grant them as a matter of course,
because more argument is better than less where it concerns the constitutionality of a
statute, the OAG’s Application is granted. The Court has considered the OAG’s written
submission.
35     As stated in the Commonwealth’s brief, the issues presented are:
       1. Whether the Trial Court exceeded its authority when it held 75 Pa.C.S.
       § 3755 violates the Fourth Amendment [to] the United States Constitution
       and Article I, Section 8 of the Pennsylvania Constitution, in disregard of
       clear binding precedent?
       2. Whether the Trial Court erred when it granted [Hunte’s] Motion to
       Suppress evidence despite the Commonwealth’s compliance with 75
       Pa.C.S. § 3755(a) and its execution of lawfully issued search warrants?
       3. Whether the Trial Court erred when it held the Commonwealth could not
       establish a prima facie case and dismissed several charges against [Hunte]
       where toxicology results obtained pursuant to a legal search warrant
(continued…)

                                      [J-43-2024] - 12
       The Commonwealth stresses the presumption of constitutionality that all statutes

enjoy, and emphasizes the weight of a challenger’s burden to show that a statute is

“clearly, palpably, and plainly” unconstitutional. 36       As for Section 3755, the

Commonwealth contends that the warrantless search that it authorizes is permissible

because a warrant might be obtained later. On the Commonwealth’s reading, the statute

concerns the “limited circumstances where emergency room personnel may draw blood,

prior to receiving a search warrant,” and law enforcement may obtain one later, because

“[n]othing in the statute prohibits law enforcement from obtaining a search warrant to

seize the blood sample at a later date,” as happened here. 37

       The Commonwealth then turns to its assertion that the initial, warrantless blood

draw in this case was justified by exigent circumstances. 38         Because Hunte was

unconscious at the time of Trooper German’s Section 3755 request, the Commonwealth

argues that this case is governed by Mitchell v. Wisconsin, in which a plurality of the

Supreme Court of the United States declared that a DUI suspect’s unconsciousness

“almost always” will constitute an exigent circumstance justifying a warrantless blood

draw. 39   The Mitchell plurality further stressed that serious car crashes can create

numerous responsibilities for law enforcement, particularly where unconscious drivers are


       established that Defendant was under the influence of alcohol and a
       controlled substance?
Commonwealth’s Br. at 4. On May 15, 2024, we held oral argument limited to the
question: “Whether the trial court properly reached the question of the constitutionality of
75 Pa.C.S. § 3755 and, if so, correctly held it is facially unconstitutional?”
36     Commonwealth’s Br. at 11 (quoting Commonwealth v. Ludwig, 

(Pa. 2005)).
37     Id. at 13-14.
38     The Commonwealth did not advance this argument before the trial court.
39     Mitchell, 588 U.S. at 843 (plurality).


                                      [J-43-2024] - 13
involved. In light of these exigencies, the Commonwealth argues, it was necessary in this

case for the troopers to act without a search warrant. The Commonwealth acknowledges

that any exigency related to the dissipation of alcohol from the bloodstream would be

extinguished after a blood sample is obtained and the evidence contained therein is

preserved, but because the troopers here obtained a search warrant to take possession

of Hunte’s blood samples, the Commonwealth argues that the samples were not seized

in violation of Hunte’s constitutional rights.

       In the Commonwealth’s view, the troopers complied fully with the requirements of

Section 3755, the Fourth Amendment, and Article I, Section 8. Notwithstanding that the

statute facially authorizes a warrantless search, the Commonwealth’s position is that the

search here was not unconstitutional because the blood draw itself was justified by

exigent circumstances, and the troopers subsequently obtained a search warrant to take

possession of it. Accordingly, the Commonwealth argues that the trial court should not

have declared Section 3755 unconstitutional in this case, and it should not have

dismissed the related charges.

       Hunte stresses that the precedent of both the Supreme Court of the United States

and this Court makes clear that a blood draw is an intrusive manner of search that is

protected under the Fourth Amendment, and is subject to no categorical exception from

the warrant requirement. Section 3755 is unconstitutional, Hunte argues, because it

facially authorizes a search on the existence of probable cause alone, without a search

warrant or the demonstration of any recognized exception to the warrant requirement. 40

As for the Commonwealth’s suggestion that the statute should be spared constitutional

scrutiny because it does not preclude an officer from obtaining a search warrant sometime




40     Hunte’s Br. at 14-15.


                                       [J-43-2024] - 14
after a blood draw, Hunte deems the argument “frivolous” because such reasoning would

defeat all constitutional challenges premised upon the Fourth Amendment. 41

       Hunte suggests that the only conceivable avenue for Section 3755 to survive

constitutional scrutiny is a finding that “implied consent” can serve as a standalone

exception to the warrant requirement.          Hunte argues that such an approach is

unsustainable under current Fourth Amendment jurisprudence. He notes, moreover, that

neither the Commonwealth nor the OAG make any argument that implied consent is a

legitimate basis upon which to uphold Section 3755. Hunte nonetheless proceeds to

analyze the suggestion under the current state of the law, contending that implied consent

statutes cannot be used as a substitute for the constitutional requirement of a search

warrant. 42

       Hunte urges us to reject the Commonwealth’s assertion of exigent circumstances.

Because this argument is based upon fact-specific considerations, it “has nothing to do

with the constitutionality of Section 3755.”43 Moreover, the Commonwealth presented no

evidence at the suppression hearing as to whether it would have been practicable to

obtain a warrant, and it did not invoke the exigent circumstances doctrine before the trial

court. Because the Commonwealth has sought to raise this argument for the first time on

appeal, Hunte asserts that it is waived. 44


41     Id. at 18 (“Under that theory all statutes like this one, that permit intrusions without
a warrant when one is required would be constitutional. For example, a statute that
authorized police, based on probable cause, to enter a house without a warrant and
search it would be constitutional because the statute does not prohibit an officer from first
obtaining a warrant.”).
42     Id. at 19-24, 29-33.
43     Id. at 38.
44     Id. at 40-41; see Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived
and cannot be raised for the first time on appeal.”). The Commonwealth did not file a
(continued…)

                                      [J-43-2024] - 15
       Hunte additionally emphasizes that a constitutional analysis should not be

concerned with the possibility for some increased burden on law enforcement, but, in any

event, the administrative consequences of striking down Section 3755 would not be

especially severe. Finally, Hunte argues that, should we find the need to distinguish

between the requirements of the Fourth Amendment and Article I, Section 8 on this

subject, and should we find that Section 3755 withstands scrutiny under federal law, then

we should uphold the trial court’s order under the independent protections of the

Pennsylvania Constitution. To that end, Hunte provides an analysis of the factors that

this Court traditionally considers when deciding whether our Constitution provides greater

protection of individual liberty than that of the United States, as discussed in our seminal

decision in Commonwealth v. Edmunds. 45

       The OAG argues that the trial court should not have reached the constitutionality

of Section 3755 because the statute did not apply to this case. The OAG stands alone in

this suggestion; both Hunte and the Commonwealth agree that Section 3755 is squarely

implicated by the facts of this case. 46 The OAG differs because it appears to be under the

impression that the blood sample at issue in this case was taken by hospital personnel

for medical purposes prior to Trooper German’s request. “Because here blood that had


reply brief, and thus did not respond to Hunte’s assertion that its exigent circumstances
argument is waived.
45     Commonwealth v. Edmunds, 

 (Pa. 1991); see Hunte’s Br. at 33-
37.
46     Commonwealth’s Br. at 16 (noting that Trooper German “completed the hospital
form and requested blood be drawn pursuant to 75 Pa.C.S. § 3755(a)”); id. at 17 (“The
parties agree the Commonwealth complied with the statutory scheme set forth by the
Motor Vehicle Code; the defendant was involved in a serious crash that rendered him
incapable of consent; and the police executed two search warrants to secure and test the
blood sample that was obtained pursuant to the request made under § 3755.”); Hunte’s
Br. at 3 (“The Commonwealth agrees with the lower court factual findings that squarely
present the issue of the constitutionality of 75 Pa.C.S. § 3755.”).


                                     [J-43-2024] - 16
already been drawn was later seized and tested with search warrants,” the OAG

suggests, “no evidence was obtained by application of the statute.” 47 The OAG thus

believes this case to present the same factual impediment as Jones-Williams, and it

suggests that we should similarly decline to consider the constitutionality of Section 3755.

As noted above, Trooper German testified that the hospital staff already had drawn

Hunte’s blood for medical purposes, but a phlebotomist drew two additional vials of blood

pursuant to the trooper’s request under Section 3755. 48 The trial court also plainly found

that Hunte’s blood “was drawn at the request of Trooper German.” 49            The OAG’s

constitutional avoidance argument is premised upon a misapprehension of the facts, and

we will not address it further.

       The OAG concedes that “implied consent” is not a sufficient constitutional basis to

uphold Section 3755. 50 As to the constitutionality of Section 3755, the OAG stresses that

a facial constitutional challenge can prevail “only where no set of circumstances exist[s]

under which the statute would be valid.” 51 The OAG suggests that Section 3755 can be

applied in a constitutional manner in certain circumstances, and thus cannot be deemed

facially unconstitutional. Like the Commonwealth, the OAG stresses that Section 3755

does not preclude a search warrant. Should a search warrant be obtained, the OAG

suggests, then the application of the statute would not be unconstitutional in that




47     OAG’s Br. at 12.
48     See supra pp.7-8; N.T. at 10-12.
49     Trial Ct. Op., 1/20/2023, at 4.
50     OAG’s Br. at 10 (acknowledging that “implied consent is not a warrant exception”).
51     Id. at 8 (quoting Commonwealth v. Pownall, 

, 904 (Pa. 2022)).


                                         [J-43-2024] - 17
instance. 52 In a similar vein, the OAG argues that the situation to which Section 3755

applies—an intoxicated driver requiring medical treatment at a hospital—often will be

deemed to be an exigent circumstance that would dispense with the requirement of a

search warrant. Like the Commonwealth, the OAG emphasizes the Mitchell plurality’s

discussion of the factors that commonly establish exigent circumstances in unconscious-

driver scenarios. The OAG suggests that such exigent circumstances also constitute

situations in which Section 3755 may be applied lawfully. Thus, because there are

circumstances in which Section 3755 could be applied validly, the OAG argues that the

statute is not facially unconstitutional.

                                              IV.

         The constitutionality of a statute is a pure question of law, over which our standard

of review is de novo and our scope of review is plenary. 53 Statutes enjoy a presumption

of constitutionality, and challengers bear the burden to establish that their provisions

“clearly, plainly, and palpably” violate the Constitution. 54         “A statute is facially

unconstitutional only where no set of circumstances exist[s] under which the statute would

be valid.” 55 Facial constitutional challenges to statutes under the Fourth Amendment “are




52    Id. at 10 (“Here, as the lower court observed, implied consent is not a warrant
exception, and while the statute requires probable cause, it does not require a warrant.
But neither does it preclude one. Where the police do obtain a warrant, applying § 3755
would be constitutional.”) (internal citation omitted).
53   Commonwealth v. Torsilieri, 

, 86 (Pa. 2024) (citing Commonwealth v.
LaCombe, 

, 608 (Pa. 2020)).
54       Pennsylvania Env’t Def. Found. v. Commonwealth, 

, 1202 (Pa.
2022).
55    Pownall, 278 A.3d at 904 (quoting Clifton v. Allegheny Cty., 

(Pa. 2009)) (brackets in original); see also United States v. Salerno, 

(1987).


                                       [J-43-2024] - 18
not categorically barred or especially disfavored.”56         Moreover, although a facial

challenger must establish that a statute is unconstitutional in all of its applications, we are

concerned only with “applications of the statute in which it actually authorizes or prohibits

conduct.” 57 Particularly in the Fourth Amendment context, “when addressing a facial

challenge to a statute authorizing warrantless searches, the proper focus of the

constitutional inquiry is searches that the law actually authorizes, not those for which it is

irrelevant.” 58

        Under both the Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution, searches conducted in the absence of a

search warrant are per se unreasonable, unless they satisfy one of the recognized

exceptions to the warrant requirement. 59 One such exception exists when a person

consents to the search. Such consent must be “voluntarily given, and not the result of

duress or coercion, express or implied,” and voluntariness is a “question of fact to be

determined from all the circumstances.”60 The other exception of potential relevance to


56      City of Los Angeles, Calif. v. Patel, 

, 415 (2015).
57      Id. at 418.
58      Id.
59      See Katz v. United States, 

 (1967) (“Over and again this Court
has emphasized that the mandate of the Fourth Amendment requires adherence to
judicial processes, and that searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and well-delineated exceptions.”) (cleaned
up; citations omitted); Commonwealth v. Lyons, 

 (Pa. 2013)
(“Under the federal and state constitutional prohibitions of unreasonable searches and
seizures, both the United States Supreme Court and this Court have consistently held
that, subject to certain exceptions, a search is constitutionally invalid unless it is
conducted pursuant to a warrant issued by a neutral and detached magistrate and
supported by probable cause.”).
60    Schneckloth v. Bustamonte, 

 (1973); see also Bumper v.
North Carolina, 

 (1968).


                                      [J-43-2024] - 19
Section 3755 is that provided for exigent circumstances, under which the need for a

warrant may be excused “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.” 61 Exigent circumstances are established through a showing that

“there is compelling need for official action and no time to secure a warrant.” 62 Like the

voluntariness of consent, the presence of exigent circumstances is a case-by-case

assessment to be determined through consideration of the totality of the circumstances. 63

      Section 3755(a) facially purports to authorize the taking of “blood samples” on the

basis of probable cause to suspect DUI. As discussed below, this physical intrusion into

the body constitutes a search under the Fourth Amendment. Section 3755, however,

requires neither a search warrant nor the assertion of any case-specific exception to the

warrant requirement.     Rather, Section 3755(a) mandates that the blood draw be

conducted and the samples transmitted for testing, and provides that the “[t]est results

shall be released upon request” of, among others, “governmental officials or agencies.” 64

Because Section 3755 authorizes warrantless searches for an entire category of cases,

its constitutionality under the Fourth Amendment is facially suspect. Section 3755 can

61    McNeely, 

-49 (quoting Kentucky v. King, 

 (2011)).
62    

 at 149 (quoting Michigan v. Tyler, 

 (1978)); see also Mitchell,
588 U.S. at 849 (plurality) (quoting McNeely, 

); Commonwealth v. Trahey,

, 530 (Pa. 2020) (same).
63     See McNeely, 

; 

 (absent a warrant, “‘the fact-specific
nature of the reasonableness inquiry’ demands that we evaluate each case of alleged
exigency based ‘on its own facts and circumstances’”) (quoting Ohio v. Robinette, 

 (1996); Go-Bart Importing Co. v. United States, 

 (1931));
Birchfield, 579 U.S. at 467 (exigent circumstances exception “always requires case-by-
case determinations”); see also Lange v. California, 

, 301-02 (2021).
64     75 Pa.C.S. § 3755(a). As discussed below, Section 3755(b) further mandates that
hospital personnel perform the blood draws addressed in subsection (a), and provides
them with criminal and civil immunity in connection with those blood draws. See id.
§ 3755(b).


                                     [J-43-2024] - 20
stand only if there is some reason that the searches that it mandates can fall into some

recognized exception to the warrant requirement.

       As a threshold matter, we conclude that the constitutionality of Section 3755 is

properly at issue in this appeal. Unlike in Jones-Williams, it is clear that the challenged

blood draw was conducted here under the authority of Section 3755. Trooper German

initially sought to invoke Section 1547 in order to obtain Hunte’s submission to a blood

draw, but the unconscious Hunte was unable to make a “knowing and conscious choice”

between submission and acceptance of the statutory consequences of refusal. 65 Unable

to rely upon Section 1547, Trooper German then invoked Section 3755 by filling out and

submitting to hospital personnel a form undisputedly based upon and tailored to the

requirements of that statute. Trooper German testified to his understanding that his

actions were authorized by Section 3755, and the trial court found as a fact that the

challenged blood sample “was drawn at the request of Trooper German” pursuant to

Section 3755. 66 Regardless of whether medical personnel had drawn Hunte’s blood for

another reason prior to that request, the fact that the challenged blood draw was

conducted under the auspices of Section 3755 brings the application and constitutionality

of Section 3755 squarely into focus. Relatedly, and as discussed further below, although

one might assert that certain extra-statutory evidentiary showings potentially could render

a search lawful under the facts of a particular case, such theoretical alternatives do not

preclude a facial constitutional challenge to a statute that clearly applied on its own terms.




65     See Myers, 

 (Majority holding).
66     Trial Ct. Op., 1/20/2023, at 4.


                                         [J-43-2024] - 21
       With the constitutionality of Section 3755 properly before us, we turn to an analysis

of the developments in Fourth Amendment jurisprudence that resolve the question. 67

       A. McNeely, Birchfield, and Mitchell

       An intrusion into the human body for the purpose of obtaining a blood sample is a

search within the meaning of the Fourth Amendment. 68 Although the Supreme Court of

the United States earlier had rejected a constitutional challenge to a warrantless blood

draw under the Due Process Clause of the Fourteenth Amendment, 69 the Court

reconsidered the matter under the Fourth Amendment in Schmerber v. California. The

Schmerber Court ruled that compulsory blood draws in DUI cases are searches under

the Fourth Amendment, triggering the protections of the Fourth Amendment’s warrant

requirement. Nonetheless, the Schmerber Court reasoned that the warrantless blood

draw at issue was reasonable under the exigent circumstances doctrine. The Court noted

that, because the defendant’s body was naturally metabolizing the alcohol in his

bloodstream, and due to the time necessary to transport the defendant and to investigate

the crash scene, the officer “might reasonably have believed that he was confronted with




67      Although Hunte’s analysis of the greater privacy guarantees afforded under Article
I, Section 8 is well-taken, we find it unnecessary to reach the question of whether the
Pennsylvania Constitution provides additional protection in this context. Because the
Supreme Court of the United States’ elaboration of Fourth Amendment principles is
sufficient to resolve the matter, we leave that question for another day.
68    See Schmerber v. California, 

 (1966) (the “compulsory
administration of a blood test . . . plainly involves the broadly conceived reach of a search
and seizure under the Fourth Amendment”); Birchfield, 579 U.S. at 455 (citing Skinner v.
Railway Labor Executives’ Assn., 

 (1989); Schmerber, 

 (1966)) (“[O]ur cases establish that the taking of a blood sample or the
administration of a breath test is a search.”); see also Trahey, 228 A.3d at 530.
69    U.S. CONST. amend. XIV, § 1; see Breithaupt v. Abram, 

(1957) (involuntary blood draw did not offend due process).


                                      [J-43-2024] - 22
an emergency, in which the delay necessary to obtain a warrant, under the

circumstances, threatened ‘the destruction of evidence.’” 70

       Although Schmerber facially stated its holding in case-specific terms, the Court’s

decision widely was read as approving a categorical exception to the warrant requirement

for blood testing in DUI investigations, premised upon the destruction of evidence arising

from the natural dissipation of alcohol from one’s bloodstream. 71 This impression likely

was fostered by a comment in South Dakota v. Neville, in which the Court stated, albeit

in the Fifth Amendment 72 context, that Schmerber “clearly allows a State to force a person

suspected of driving while intoxicated to submit to a blood alcohol test.” 73 This categorical

understanding of the Schmerber case was prevalent until 2013, when McNeely began to

develop the new body of Fourth Amendment jurisprudence that substantially has altered

the understanding of the constitutional requirements for the search and seizure of bodily

fluids in DUI investigations. 74




70    Schmerber, 

 (quoting Preston v. United States, 

(1964)).
71   See, e.g., McNeely, 

 n.2 (collecting cases); State v. Reynolds, 

 (Tenn. 2016) (discussing state court interpretations of Schmerber).
72     U.S. CONST. amend. V.
73     S. Dakota v. Neville, 

 (1983). Neville held that the admission
into evidence of a defendant’s refusal to submit to a BAC test did not violate the
defendant’s Fifth Amendment right against self-incrimination. 

. Neville did not
concern the Fourth Amendment.
74     This Court has, in previous decisions, discussed the developments in Fourth
Amendment law ushered in by McNeely, Birchfield, and Mitchell. See, e.g., Jones-
Williams, 279 A.3d at 518; Trahey, 228 A.3d at 531-35; Commonwealth v. Starry, 

, 320 (Pa. 2020); Commonwealth v. Olson, 

, 869-70, 872-75 (Pa.
2019); Commonwealth v. Bell, 

, 775 n.13 (Pa. 2019); Myers, 

 (plurality). Because McNeely, Birchfield, and Mitchell are central to the
constitutionality of Section 3755, we discuss these decisions in detail once again.


                                      [J-43-2024] - 23
       McNeely concerned the question of “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.”75 Answering that question in the negative, the McNeely Court stressed

the case-specific nature of the assessment of exigent circumstances, 76 and emphasized

that Schmerber did not purport to state a categorical rule; rather, “Schmerber applied this

totality of the circumstances approach.”77

       The McNeely Court acknowledged that the human body naturally metabolizes

alcohol, such that BAC evidence will gradually dissipate over time. This did not, in the

Court’s view, justify a categorical authorization for warrantless blood draws. “In 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.” 78 Although the dissipation of BAC

evidence could contribute to a finding of exigency in certain cases, the McNeely Court

reasoned that this was merely “a reason to decide each case on its facts, as we did in

Schmerber, not to accept the ‘considerable overgeneralization’ that a per se rule would

reflect.” 79 The Court additionally commented that blood testing differs from other “now or


75     McNeely, 

. Although McNeely is a plurality decision in part, unless
otherwise noted, the cited portions of McNeely are sourced from the portions of the
Court’s opinion that received the joinder of a majority of the Justices.
76     

.
77     

; see also 

 (“[O]ur analysis in Schmerber fits comfortably within
our case law applying the exigent circumstances exception. In finding the warrantless
blood test reasonable in Schmerber, we considered all of the facts and circumstances of
the particular case and carefully based our holding on those specific facts.”).
78     

 at 152 (citing McDonald v. United States, 

 (1948)).
79     

 at 153 (quoting Richards v. Wisconsin, 

 (1997)).


                                     [J-43-2024] - 24
never” situations involving the destruction of evidence because the suspect has no control

over the dissipation of BAC evidence, which occurs naturally, gradually, and predictably. 80

Moreover, the McNeely Court reasoned, suspects typically must be transported to a

medical facility for blood testing, which inherently involves some delay, and there can be

circumstances “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.” 81 In such

a situation, “there would be no plausible justification for an exception to the warrant

requirement.” 82

       Moreover, the McNeely Court reasoned that a per se rule “fails to account for

advances in the 47 years since Schmerber was decided that allow for the more

expeditious processing of warrant applications, particularly in contexts like drunk-driving

investigations where the evidence offered to establish probable cause is simple.” 83 The

Court stressed that federal criminal procedural rules allow for the use of telephonic

warrants, and that most States authorize the use of various technologies to allow police

officers to obtain search warrants remotely while in the field. 84 The McNeely Court

acknowledged that there is always some amount of delay attendant to a search warrant

application.   “But technological developments that enable police officers to secure

warrants more quickly, and do so without undermining the neutral magistrate judge’s


80     

81     

82     Id. at 153-54.
83     Id. at 154.
84     Id. at 154-55; see Pa.R.Crim.P. 203(a) (“In the discretion of the issuing authority,
advanced communication technology may be used to submit a search warrant application
and affidavit(s) and to issue a search warrant.”).


                                     [J-43-2024] - 25
essential role as a check on police discretion, are relevant to an assessment of

exigency.” 85

       In light of these considerations, McNeely 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.” 86 The Court

further explained that, “while the natural dissipation of alcohol in the blood may support a

finding of exigency in a specific case, as it did in Schmerber, it does not do so

categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable

must be determined case by case based on the totality of the circumstances.”87

       To those who understood Schmerber as providing a categorical exception to the

warrant requirement for BAC testing, McNeely caused a bit of a stir. With the exigent

circumstances doctrine unable to support a per se rule, a categorical exception quickly

was sought, and soon granted, under another exception to the warrant requirement—the

search-incident-to-arrest doctrine. 88     This rule, however, would come with a caveat:

warrants are categorically excused only for breath testing, not for blood draws.



85     McNeely, 

.
86     

.
87      

. Some additional portions of McNeely were not joined by a majority of
Justices, with those in a partially concurring posture primarily differing over the degree of
guidance that the Court should provide for typical DUI cases. See 

 (Kennedy,
J., concurring in part); 

 (Roberts, C.J., concurring in part and dissenting in part)
(“I believe more meaningful guidance can be provided about how to handle the typical
cases, and nothing about the question presented prohibits affording that guidance.”). As
is later significant to the Mitchell case, Justice Thomas dissented in McNeely, contending
that the loss of evidence caused by metabolization of alcohol should be deemed to be an
exigent circumstance as a categorical matter. See 

 (Thomas, J., dissenting).
88    See Birchfield, 579 U.S. at 458-61 (discussing, inter alia, Chimel v. California, 

 (1969); United States v. Robinson, 

 (1973); Riley v. California, 

 (2014)).


                                         [J-43-2024] - 26
       The question in Birchfield concerned “implied consent” laws, which the Court

characterized as statutes that “impose penalties on motorists who refuse to undergo

testing when there is sufficient reason to believe they are violating the State’s drunk-

driving laws.” 89 The Court specifically considered three consolidated cases that involved

the imposition of criminal penalties for refusal to undergo BAC testing, over and above

the typical penalties of driver’s license suspension and use of the refusal as evidence at

trial. Because implied consent laws concern searches under the Fourth Amendment, the

Birchfield Court reasoned that criminal punishment only may be imposed if the searches

that they contemplate are lawful, “just as a State may make it a crime for a person to

obstruct the execution of a valid search warrant.” 90 Absent a lawful search, a State could

not criminalize the refusal to submit thereto.

       The relevant inquiry, Birchfield concluded, was whether the breath or blood tests

demanded by implied consent laws may be deemed lawful as a categorical matter under

the search-incident-to-arrest exception. After a detailed historical discussion of that

doctrine, the Birchfield Court emphasized precedents holding that the fact of a lawful

arrest authorizes “a full search of the person,” and that this authority is categorical, i.e.,

there is no case-by-case assessment of the need for a search incident to arrest. 91 In

Riley v. California, moreover, the Court made clear that, when considering the

applicability of the search-incident-to-arrest doctrine to novel situations that could not

have been envisioned when the Fourth Amendment was adopted, the inquiry requires an

assessment of, “on the one hand, the degree to which [the search] intrudes upon an




89     Id. at 444.
90     Id. at 455.
91     Id. at 460 (quoting United States v. Robinson, 

 (1973)).


                                      [J-43-2024] - 27
individual’s privacy and, on the other, the degree to which it is needed for the promotion

of legitimate governmental interests.”92

       Applying this standard to the tests at issue, the Birchfield Court arrived at its central

holding—a constitutional line drawn between breath testing and blood testing, based

upon the degree to which each form of testing intrudes upon individual privacy interests.

Breath testing, the Court reasoned, does not “implicat[e] significant privacy concerns.”93

Breath testing requires no penetration of the subject’s skin, is minimally inconvenient or

embarrassing, painless, collects nothing that the body does not discard naturally through

breathing, and reveals only one piece of information—the subject’s BAC. 94 “Blood tests

are a different matter.” 95 Blood tests require piercing the skin and extracting a part of the

subject’s body, which is not freely discarded otherwise. “It is significantly more intrusive

than blowing into a tube.” 96 Moreover, blood testing involves the collection of a sample

that can be kept and preserved, and from which much more information can be gleaned

about the subject than a mere BAC reading. Blood tests, the Birchfield Court thus held,

are a much more significant intrusion upon individual privacy interests than breath tests.

       Because the governmental interest in obtaining BAC evidence from drunk drivers

is strong, and because implied consent laws that incentivize drivers to provide such

evidence “serve a very important function,” the Birchfield Court concluded that a




92     

 at 460-61 (quoting Riley v. California, 

, 385 (2014)).
93     

 at 461 (quoting Skinner, 

).
94     Id. at 461-63.
95     Id. at 463.
96     Id. at 464.


                                       [J-43-2024] - 28
categorical authorization for some form of BAC testing was warranted under the search-

incident-to-arrest doctrine. 97 The Court concluded:

      Having assessed the effect of BAC tests on privacy interests and the need
      for such tests, we conclude that the Fourth Amendment permits warrantless
      breath tests incident to arrests for drunk driving. The impact of breath tests
      on privacy is slight, and the need for BAC testing is great.

      We reach a different conclusion with respect to blood tests. Blood tests are
      significantly more intrusive, and their reasonableness must be judged in
      light of the availability of the less invasive alternative of a breath test.
      Respondents have offered no satisfactory justification for demanding the
      more intrusive alternative without a warrant. 98

      The Birchfield Court then considered and rejected several of the arguments in

favor of authorizing warrantless blood testing as well. Blood testing, the Court noted,

allows the detection not just of alcohol, but also of controlled substances. But where law

enforcement officers suspect drug-based intoxication, “[n]othing prevents the police from

seeking a warrant for a blood test when there is sufficient time to do so in the particular

circumstances or from relying on the exigent circumstances exception to the warrant

requirement when there is not.” 99 Unlike breath tests, blood tests can be performed upon

unwilling suspects, but the Court noted that state laws often decline to authorize blood

draws over a suspect’s resistance, seeking to minimize the risk of violent altercations.

Breath tests might be foiled by a suspect deliberately attempting to blow an inadequate

sample, but the Court noted that such conduct generally constitutes refusal and, under

the Court’s holding, can be prosecuted as such. Finally, and significantly, the Court noted


97    Id. at 466.
98    Id. at 474.
99      Id. at 474-75 (citing McNeely, 

); see also Trahey, 228 A.3d at 536-
39 (finding exigent circumstances lacking for warrantless blood draw sought to investigate
presence of controlled substances, which did not present the same concerns regarding
the speed of metabolization of BAC evidence).


                                     [J-43-2024] - 29
that blood tests can be performed upon unconscious persons. But the Court found “no

reason to believe that such situations are common in drunk-driving arrests, and when

they arise, the police may apply for a warrant if need be.”100

       Although Birchfield’s distinction between breath and blood is quite clear, its final

holding was more ambiguous. Having concluded that warrantless blood draws are not

categorically authorized under the search-incident-to-arrest doctrine, the Court turned to

the government’s alternative argument “that such tests are justified based on the driver’s

legally implied consent to submit to them.”101 The argument was that “implied consent”

laws can dispense with the Fourth Amendment’s warrant requirement on their own

authority, due to a statutory declaration that drivers are deemed to have given consent to

searches of their bodily fluids by virtue of their decision to drive on public roads. The

Birchfield Court did not confront that suggestion directly; rather, the Court narrowed its

focus to the precise question before it, i.e., whether DUI arrestees “may be convicted of

a crime or otherwise penalized” for refusing to submit to a warrantless BAC test. 102 The

Court noted that consent is a valid exception to the warrant requirement, that a search is

reasonable when the subject consents, and that consent can be inferred from context in

certain circumstances. 103 The Court then stated:

       Our prior opinions have referred approvingly to the general concept of
       implied-consent laws that impose civil penalties and evidentiary
       consequences on motorists who refuse to comply. See, e.g., McNeely, 

 (plurality opinion); Neville, 

. Petitioners do
       not question the constitutionality of those laws, and nothing we say here
       should be read to cast doubt on them.

100    Birchfield, 579 U.S. at 475.
101    Id. at 476.
102    Id. at 454.
103   Id. at 476 (citing Schneckloth, 

; Florida v. Jardines, 

(2013); Marshall v. Barlow’s, Inc., 

 (1978)).


                                      [J-43-2024] - 30
       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
       such 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. 104

       Thus arriving at its holding regarding implied consent, the Birchfield Court declared

“that motorists cannot be deemed to have consented to submit to a blood test on pain of

committing a criminal offense.”105 Applying its holding to the three consolidated cases

before it, the Court concluded that it was permissible to criminally punish the petitioner

who refused a breath test because such was a lawful search incident to arrest, but it was

unlawful to criminally punish the petitioner who refused a blood test, which was not

justified by any exception to the warrant requirement. The third petitioner, Beylund,

submitted to a blood test after he was warned of the consequences of refusal. The state

court had reasoned that this petitioner’s “consent was voluntary on the erroneous

assumption that the State could permissibly compel both blood and breath tests.”106

Significantly, the Court’s remand instruction for Beylund’s case provided: “Because

voluntariness of consent to a search must be ‘determined from the totality of all the

circumstances,’ Schneckloth, 

, we leave it to the state court on remand to

reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.” 107

       The Birchfield Court thus limited its holding to a declaration that it is unlawful to

impose criminal penalties for refusal to submit to a warrantless blood test.             The

narrowness of this holding plainly left open the more fundamental question: whether

implied consent provisions can serve as an independent authorization for a warrantless

104    Id. at 476-77 (citations modified).
105    Id. at 477.
106    Id. at 478.
107    Id. (citation modified).


                                      [J-43-2024] - 31
search in the first place, i.e., whether a state legislature actually can waive the

constitutional rights of all drivers by statutory declaration. The Court set out to provide an

answer to that question in Mitchell, granting certiorari to decide “[w]hether a statute

authorizing a blood draw from an unconscious motorist provides an exception to the

Fourth Amendment warrant requirement.”108

       When the Court decided Mitchell, however, it did so in a plurality opinion that did

not address that question.         Rather, the Mitchell plurality invoked the exigent

circumstances doctrine sua sponte, and applied it to “a narrow but important category of

cases: those in which the driver is unconscious and therefore cannot be given a breath

test.” 109 Before reaching that matter, however, Mitchell began with a discussion of

Birchfield and Wisconsin’s implied consent law, which, the plurality noted, was much like

that of all other states in that it “deems drivers to have consented to breath or blood tests”

on suspicion of DUI and imposes penalties for refusal. 110 The plurality noted that the

Court previously had considered the operation of implied consent laws, and it quoted

Birchfield’s reference to prior approval of civil penalties and evidentiary consequences for

test refusal. Mitchell added an important caveat:

       But our decisions have not rested on the idea that these laws do what their
       popular name might seem to suggest—that is, create actual consent to all
       the searches they authorize. Instead, we have based our decisions on the
       precedent regarding the specific constitutional claims in each case, while
       keeping in mind the wider regulatory scheme developed over the years to
       combat drunk driving. That scheme is centered on legally specified BAC
       limits for drivers—limits enforced by the BAC tests promoted by implied-
       consent laws. 111


108    Mitchell, 588 U.S. at 846 (plurality) (quoting Petition for Certiorari).
109    Id. at 843.
110    Id. at 844.
111    Id. at 846-47.


                                      [J-43-2024] - 32
       The Mitchell plurality then turned to the grounds for its decision—the exigent

circumstances doctrine. Gerald Mitchell was unconscious when he was subjected to a

warrantless blood draw, and he was thus unable to undergo a breath test. In such cases,

the plurality stated that “the need for a blood test is compelling, and an officer’s duty to

attend to more pressing needs may leave no time to seek a warrant.” 112 The plurality

reiterated the importance of the government’s need to obtain BAC evidence in order to

effectively prosecute DUI offenses and thus to promote highway safety. “The bottom line

is that BAC tests are needed for enforcing laws that save lives.” 113 When a driver is

unconscious, the plurality reasoned, a breath test is unavailable, and a blood test

becomes “essential for achieving the compelling interests” served by the regulatory

scheme. 114

       Looking back to Schmerber, the Mitchell plurality noted that the Court there

indicated that exigent circumstances existed because the alcohol in the suspect’s

bloodstream was being metabolized, and it took time to transport the suspect to a hospital

and to investigate the scene of the car crash.          Although acknowledging that the

metabolization of BAC evidence does not establish exigent circumstances per se under

McNeely, “Schmerber shows that it does so when combined with other pressing

needs.” 115 The lesson of Schmerber, according to the Mitchell plurality, is that “exigency

exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing

health, safety, or law enforcement needs that would take priority over a warrant




112    Id. at 850-51.
113    Id. at 851.
114    Id. at 853.
115    Id. at 854.


                                     [J-43-2024] - 33
application.” 116 Where in Schmerber the “extra factor” was a car crash, in Mitchell, the

plurality determined, it was Mitchell’s unconsciousness.          The plurality noted that a

suspect’s unconsciousness, whether due to injury or intoxication, is itself a medical

emergency that will require treatment in a hospital. 117 In many cases, the plurality

suggested, unconscious drivers will have been involved in crashes, which may require

officers to attend to all manner of urgent tasks, like attending to others who could be

injured or killed, preserving evidence, or redirecting traffic. Such “rival priorities would put

officers, who must often engage in a form of triage, to a dilemma,” forcing them to “choose

between prioritizing a warrant application, to the detriment of critical health and safety

needs, and delaying the warrant application, and thus the BAC test, to the detriment of

its evidentiary value and all the compelling interests served by BAC limits.” 118

       Accordingly, the Mitchell plurality concluded that, if a police officer has probable

cause to suspect DUI, and the suspect’s “unconsciousness or stupor requires him to be

taken to the hospital or similar facility before police have a reasonable opportunity to

administer a standard evidentiary breath test, they may almost always order a warrantless

blood test to measure the driver’s BAC without offending the Fourth Amendment.”119

Notwithstanding, the plurality stated that it did not “rule out the possibility that in an

unusual case a defendant would be able to show that his blood would not have been

drawn if police had not been seeking BAC information, and that police could not have




116    Id.
117    Id. at 854-55.
118    Id. at 856.
119    Id. at 857 (emphasis added).


                                       [J-43-2024] - 34
reasonably judged that a warrant application would interfere with other pressing needs or

duties.”120 The plurality remanded to allow Mitchell a chance to make such a showing.

       The Mitchell plurality consisted of four Justices—Justices Alito, Breyer, and

Kavanaugh, and Chief Justice Roberts. Justice Sotomayor dissented, joined by Justices

Ginsburg and Kagan, differing both with the plurality’s treatment of the exigent

circumstances doctrine and its decision to consider that matter sua sponte, particularly

given that the government had specifically declined to rely upon exigent circumstances

throughout the case. 121 Justice Gorsuch dissented separately, stating his preference to

dismiss the appeal as improvidently granted, rather than considering the exigent

circumstances doctrine “solely by self-direction.” 122

       Importantly, Justice Thomas concurred in the judgment in Mitchell, rejecting the

plurality’s general guidelines concerning unconscious drivers. 123      Justice Thomas

reiterated the position that he had maintained since McNeely—that the natural dissipation

of alcohol from the bloodstream categorically constitutes the destruction of evidence,

such that a per se authorization for all warrantless BAC tests should be recognized under

the exigent circumstances doctrine. 124 Under the Marks rule, when the Supreme Court

120    Id.
121    Id. at 861-78 (Sotomayor, J., dissenting).
122    Id. at 878 (Gorsuch, J., dissenting). Justice Gorsuch summed up Mitchell
succinctly: “We took this case to decide whether Wisconsin drivers impliedly consent to
blood alcohol tests thanks to a state statute. That law says that anyone driving in
Wisconsin agrees—by the very act of driving—to testing under certain circumstances.
But the Court today declines to answer the question presented. Instead, it upholds
Wisconsin’s law on an entirely different ground—citing the exigent circumstances
doctrine.” Id.
123    Id. at 844 (plurality).
124  See id. at 858-61 (Thomas, J., concurring); see also Birchfield, 579 U.S. at 496-99
(Thomas, J., concurring in part and dissenting in part); McNeely, 

(Thomas, J., dissenting).


                                      [J-43-2024] - 35
of the United States “decides a case and no single rationale explaining the result enjoys

the assent of five Justices, ‘the holding of the Court may be viewed as that position taken

by those Members who concurred in the judgments on the narrowest grounds . . . .’” 125

Because four Justices in Mitchell defined a narrow category of cases to which the exigent

circumstances exception generally will apply, but Justice Thomas opined that the exigent

circumstances doctrine always will apply to all BAC testing, the plurality’s approach

reflects the narrower basis for the decision. Thus, although it is not clear that all portions

of Mitchell reflect the views of a majority of Justices, the Mitchell plurality’s central

conclusion—the plurality’s not-quite-categorical declaration that an unconscious-driver

scenario will “almost always” present exigent circumstances—may be treated as a

binding proposition of law, as far as it goes. 126 Under the Mitchell plurality’s reasoning,

however, this is a “general rule” dependent upon the specific circumstances, not a per se

authorization for warrantless blood draws in all such cases. 127

       B. “Implied Consent”

       Merely to recount the details of the Supreme Court’s analyses in McNeely,

Birchfield, and Mitchell goes a long way toward establishing that statutory “implied

consent” cannot serve as an independent, categorical exception to the warrant

requirement. In turn, Section 3755 cannot be upheld by reference to the declaration in




125   Marks v. United States, 

, 193 (1977) (quoting Gregg v. Georgia, 

, 169 n.15 (1976) (plurality)); see also Commonwealth v. Alexander, 

, 197 (Pa. 2020) (citing Commonwealth v. McClelland, 

, 731 (Pa. 2020))
(“We apply the Marks rule.”).
126    Mitchell, 588 U.S. at 843, 857 (plurality).
127    Id. at 844.


                                      [J-43-2024] - 36
Section 1547(a) that people who drive a vehicle in Pennsylvania “shall be deemed to

have given consent” to a warrantless blood draw. 128

       Section 3755 concerns the seizure of “blood samples” from a DUI suspect. 129

Blood draws conducted in order to investigate a driver’s suspected intoxication are

searches under the Fourth Amendment, per Schmerber. Searches require warrants,

absent an exception to that requirement. McNeely holds that warrantless blood searches

are not authorized by any categorical understanding of exigent circumstances. Birchfield

provides a categorical exception for breath testing under the search-incident-to-arrest

doctrine, but not for blood testing, while still mandating that consent to a blood search be

voluntary under the totality of the circumstances. Mitchell confined its general rule for

unconscious drivers to the exigent circumstances rubric, but made clear that it did not

articulate a per se rule either. A blood draw conducted under Section 3755 thus remains

a warrantless search in search of an exception.

       What is unsaid in the Supreme Court’s cases is as important as what is said.

Nowhere in Birchfield did the Court suggest that statutory “implied consent” serves as a

stand-alone basis to declare a warrantless search reasonable under the Fourth

Amendment. Rather, Birchfield discussed the operation of implied consent laws by

reference to the consequences that they impose upon refusal. Indeed, “every time that

the Birchfield Court spoke of ‘implied consent,’ it referred to these statutory consequences

of refusal, not to an exception to the Fourth Amendment’s warrant requirement.” 130

Although the Court in Mitchell accepted review of a decision directly holding that statutory




128    75 Pa.C.S. § 1547(a).
129    Id. § 3755(a).
130    Bell, 

 (Wecht, J., dissenting) (emphasis in original).


                                     [J-43-2024] - 37
“implied consent” is alone sufficient to dispense with a search warrant, 131 granting

certiorari specifically to address that fundamental constitutional question, the Mitchell

plurality conspicuously declined to address the matter. Nonetheless, the Mitchell plurality

made clear that the Court’s prior decisions concerning implied consent laws “have not

rested on the idea that these laws do what their popular name might seem to suggest—

that is, create actual consent to all the searches they authorize.” 132

       As it concerns the constitutional validity of “implied consent” as an exception to the

warrant requirement, the Mitchell plurality’s reasoning was telling. Similarly suggestive is

the fact that neither the Commonwealth nor the OAG in this case makes any attempt to

suggest that Section 3755 may be upheld due to statutory implied consent. Hunte is the

only party to address the matter, and he does so only to ensure that no potential

justification for Section 3755 is left open. Moreover, no amici curiae sought to intervene

in this matter to advance an implied consent argument to this Court. Given the deafening

silence in both the Supreme Court’s cases and the advocacy of the parties, it is clear that

the implied-consent-as-warrant-exception theory effectively has been abandoned and

disavowed as a matter of Fourth Amendment jurisprudence—a vestige of a

misunderstanding of the law.

       Shortly after Birchfield (but before Mitchell), a plurality of this Court in Myers

grappled with the meaning of Birchfield and McNeely, and similarly concluded that implied

consent statutes cannot serve as “an independent exception to the warrant requirement,”

separate from that provided for voluntary consent. 133 Although Myers ultimately rested



131    See State v. Mitchell, 

 (Wis. 2018), rev’d, Mitchell, 588
U.S. at 857 (plurality).
132    Mitchell, 588 U.S. at 846 (plurality).
133    Myers, 

 (plurality).


                                      [J-43-2024] - 38
upon statutory grounds, the plurality there nonetheless rejected the Commonwealth’s

argument that a warrantless blood draw was authorized under an implied consent theory

notwithstanding the application of the statute at issue. 134 The Myers plurality noted a

post-McNeely trend in other jurisdictions toward rejecting implied consent as a stand-

alone exception to the Fourth Amendment’s warrant requirement. 135          Moreover, the

plurality noted, Birchfield made clear that the consent exception to the warrant

requirement continues to operate under the Schneckloth standard, which requires a case-

specific showing that consent was provided voluntarily under the totality of the

circumstances. 136 The clear implication of developing Fourth Amendment jurisprudence,

the plurality concluded, was that a “statute cannot be interpreted to authorize a search,

deemed to operate under the consent exception to the warrant requirement, if the search

would not otherwise be justified by that exception. Simply put, statutorily implied consent

cannot take the place of voluntary consent.” 137 The subsequent discussion of implied

consent laws in Mitchell all but confirmed this conclusion. Decisional law in other states

further suggests the accuracy of the Myers plurality’s assessment; indeed, the writing

effectively has been on the wall since McNeely. 138

134    Then-Justice, now-Chief Justice Todd joined only the statutory component of
Myers, finding it sufficient to dispose of the case without consideration of any
constitutional issue. See 

 (Todd, J., concurring).
135    See 

 (plurality).
136    See Birchfield, 579 U.S. at 478 (noting that “voluntariness of consent to a search
must be ‘determined from the totality of the circumstances’”) (quoting Schneckloth, 

); Myers, 

 (plurality) (“Birchfield in no way suggests that the
existence of a statutory implied consent provision obviates the constitutional necessity
that consent to a search must be voluntarily given, ‘and not the result of duress or
coercion, express or implied.’”) (quoting Schneckloth, 

).
137    Myers, 

 (plurality).
138    See, e.g., State v. Prado, 

 (Wis. 2021) (declaring Wisconsin’s
incapacitated driver provision unconstitutional), id. at 879 (“In the context of warrantless
(continued…)

                                         [J-43-2024] - 39
       The United States Constitution is “the supreme Law of the Land.”139 As the Myers

plurality reasoned, a state statute “cannot authorize what the Fourth Amendment . . .

would prohibit.”140 In the end, “implied consent” is a constitutionally meaningless phrase

in this context. It is nothing more than a “popular name.” 141 The statutes that are so

called do not create consent in the constitutional sense, which must be provided

voluntarily under the totality of the circumstances. 142 “Implied consent” laws cannot waive

the protections of the Fourth Amendment for the entire class of people who drive cars.

Rather, such statutes demand submission to a search by imposing consequences upon

refusal. 143 It does not matter what they are called.



blood draws, consent ‘deemed’ by statute is not the same as actual consent, and in the
case of an incapacitated driver the former is incompatible with the Fourth Amendment.”);
id. at 881 (incapacitated driver provision’s “‘deemed’ consent authorizes warrantless
searches that do not fulfill any recognized exception to the warrant requirement and thus
the provision violates the Fourth Amendment’s proscription of unreasonable searches”).
       A prominent commentator on Fourth Amendment jurisprudence has discussed
state court decisions holding that implied consent statutes are “not substitutes for a
warrant or legal exceptions to the Fourth Amendment warrant requirement,” and has
opined that such decisions are clearly correct, suggesting that “a rule to the contrary
would in effect nullify the Supreme Court’s decision in McNeely,” that “[n]othing in the
more recent Birchfield decision casts any doubt upon that conclusion,” and that the
Mitchell plurality made clear that prior decisions have not held otherwise. 2 WAYNE R.
LAFAVE ET AL., CRIMINAL PROCEDURE § 3.10(b) (4th ed.) (discussing McNeely, Birchfield,
Mitchell, Aviles v. State, 

 (Tex. App. 2014), Flonnory v. State, 

 (Del. 2015); State v. Halseth, 

 (Idaho 2014); Byars v. State, 

 (Nev. 2014); State v. Fierro, 

 (S.D. 2014); State v. Wells, 

 (Tenn. Crim. App. 2014) (unreported)).
139    U.S. CONST. art. VI, cl. 2.
140    Myers, 

 (plurality).
141    Mitchell, 588 U.S. at 846 (plurality).
142    See Schneckloth, 

.
143     See Myers, 

 (plurality) (“[Section 1547] does not authorize police
officers to seize bodily fluids without an arrestee’s permission. Instead, it imposes an
(continued…)

                                      [J-43-2024] - 40
       The threat of penalties for refusal is the hallmark of implied consent laws, but it is

the antithesis of actual consent. Schneckloth makes clear that a sufficient showing of

consent to a search requires the government to “demonstrate that the consent was in fact

voluntarily given, and not the result of duress or coercion, express or implied.”144

Birchfield specifically invoked Schneckloth’s voluntariness standard in its remand

instructions, 145 yet it simultaneously spoke approvingly of implied consent laws that

“impose civil penalties and evidentiary consequences on motorists who refuse to comply,”

stressed that such laws were not challenged in the case before it, and noted that nothing

in its opinion “should be read to cast doubt on them.” 146 This language suggests that,

notwithstanding that a typical implied consent scenario plainly involves coercion—a

lengthy driver’s license suspension is a significant consequence to many—the consent

given can be satisfactory for Fourth Amendment purposes so long as criminal penalties

are not attached to the refusal to submit to a blood test. 147

       In Bell, this Court upheld the lawfulness of the “evidentiary consequence” of refusal

to submit to a warrantless blood draw—use of the refusal as evidence at a later DUI trial—

ultimatum upon the arrestee, who must choose either to submit to a requested chemical
test or to face the consequences that follow from the refusal to do so.”).
144    Schneckloth, 

.
145    See Birchfield, 579 U.S. at 478 (quoting Schneckloth, 

).
146    Id. at 476-77.
147     As the Birchfield Court made clear, the “voluntary consent” rubric is entirely
inapplicable to breath testing because that form of warrantless testing is categorically
authorized by the search-incident-to-arrest doctrine, and the refusal to comply may be
penalized “just as a State may make it a crime for a person to obstruct the execution of a
valid search warrant.” Birchfield, 579 U.S. at 455. Refusal to submit to a breath test,
thus, “may be prosecuted as such,” not because the subject refused to provide voluntary
consent, but rather because the refusal obstructs the execution of a valid search incident
to arrest, and the subject has “no right to refuse it.” Id. at 475, 478. The questions that
fall within the gray area in Birchfield’s discussion of implied consent laws relate solely to
warrantless blood draws, where a constitutional right to refuse consent is germane.


                                      [J-43-2024] - 41
stressing the need to give effect to Birchfield’s admonition that its holding was not meant

to cast doubt upon the lawfulness of that consequence. 148 Consequently, as it concerns

blood testing specifically, unless and until instructed otherwise by the Supreme Court of

the United States, we must regard that Court’s treatment of implied consent regimes as

sui generis, approving a limited exception to the general rule that consent to a search

much be given free from the threat of penalty for refusal, so long as those consequences

do not extend to criminal punishment for refusing a warrantless blood draw. 149

      The unique and technical constitutional doctrine that implied consent laws have

spawned, however, does not make Section 3755 any less unconstitutional. Consent to a

search must be given voluntarily, and this assessment is made case-by-case under the

totality of the circumstances—not as a categorical matter. 150 The clear implication of

McNeely, Birchfield, and Mitchell is that implied consent statutes provide no legitimate,

categorical justification for warrantless searches of any variety—breath or blood.

Regardless, Section 3755 concerns blood testing, which undoubtedly implicates the

heightened privacy concerns discussed thoroughly in Birchfield, and is subject to no

categorical exception from the Fourth Amendment’s warrant requirement. Section 3755,




148   See Bell, 

 (upholding constitutionality of 75 Pa.C.S. § 1547(e)).
149    This is similarly true of the unconstitutional conditions doctrine, which, the
Supreme Court of the United States has explained, “vindicates the Constitution’s
enumerated rights by preventing the government from coercing people into giving them
up.” Koontz v. St. Johns River Water Mgmt. Dist., 

 (2013); see also
Bell, 

 (Wecht, J., dissenting) (discussing unconstitutional conditions
doctrine in context of implied consent law); Hunte’s Br. at 21-24. Due to the relevant
language in Birchfield and this Court’s understanding of its significance in Bell, until
instructed otherwise, we must similarly regard Birchfield as approving a limited carveout
from this doctrine, where it concerns the imposition of civil penalties and evidentiary
consequences upon the refusal to submit to a warrantless blood draw.
150   Birchfield, 579 U.S. at 478; Schneckloth, 

.


                                     [J-43-2024] - 42
moreover, provides no right to refuse consent to a blood draw, nor does it concern any

consequences of refusal; refusal facially is not an option.

        Section 3755 simply mandates warrantless searches, and it requires no

demonstration of any case-specific exception to the warrant requirement.        “Implied

consent” is not such an exception, and it does not rescue Section 3755 from its facial

constitutional defects.

        C. Exigent Circumstances

        Although the Commonwealth and the OAG dedicate most of their arguments to

assertions of exigent circumstances in this case, this contention is not relevant to the

constitutionality of Section 3755.        Section 3755 requires no assertion of exigent

circumstances as a prerequisite to a blood draw. Regardless of whether a demonstration

of exigent circumstances separately would have dispensed with the need for a search

warrant in this case—or in any other—this neither alters the language of the statute nor

cures its constitutional deficiencies.

        The blood draw at issue in this case was conducted under the authority of Section

3755.    To the extent that the Commonwealth asserts exigent circumstances as an

alternative basis to uphold the specific search in this case, the Commonwealth’s

argument is waived due to its failure to raise the matter below. 151         There is a

straightforward reason that the Commonwealth made no attempt below to establish a

case-specific exigency—this case proceeded under Section 3755. All involved—Trooper


151    See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”); see also Commonwealth v. Wolfel, 

(Pa. 2020) (holding that Commonwealth failed to preserve challenge to the trial court’s
analysis under the Pennsylvania Constitution); id. at 790 (“Notably—upon the
Commonwealth’s entreaty—this Court recently enforced waiver against a criminal
defendant for failing to properly raise and preserve a Birchfield-related issue. Here, we
afford evenhanded treatment to the Commonwealth.”) (citing Commonwealth v. Hays,

, 1266-67 (Pa. 2019)).


                                         [J-43-2024] - 43
German, Hunte, the Commonwealth, and the trial court—understood that the blood draw

here was conducted under Section 3755, not pursuant to a case-specific showing that it

was impracticable to obtain a search warrant. No such showing ever was made.

         The Commonwealth’s waiver, however, is irrelevant to our discussion. To the

extent    that   the   Commonwealth’s       and   OAG’s      arguments   concerning     exigent

circumstances are intended to bear upon the constitutionality of Section 3755, we

consider them on their own terms, but find no merit. The Commonwealth and OAG assert

that this case is governed by the exigent circumstances doctrine in order to establish

either a fact-specific basis to avoid ruling upon the constitutionality of Section 3755, or

perhaps, as the OAG suggests, grounds for upholding the statute due to some overlap

between situations to which Section 3755 applies and those discussed in Mitchell. The

suggestion is that, where exigent circumstances are present, Section 3755 can be applied

in a manner that would comply with the Fourth Amendment, such that the statute cannot

be held facially unconstitutional in all its applications.

         First, there is no justification to conclude that Section 3755 is constitutional simply

because some percentage of cases to which it applies will also involve unconscious

motorists or other exigencies described in the Mitchell plurality opinion. Although there

will be some inevitable overlap, Section 3755 is not limited to the unconscious-driver

scenario discussed by the Mitchell plurality. Rather, Section 3755 applies to all drivers

who require “medical treatment in an emergency room of a hospital” due to a “motor

vehicle accident,” where “probable cause exists” to suspect DUI. 152 Indeed, the statute

covers many more persons than just the actual driver; it is “applicable to all injured

occupants who were capable of motor vehicle operation if the operator . . . cannot be




152      75 Pa.C.S. § 3755(a).


                                        [J-43-2024] - 44
determined.” 153 On its face, Section 3755 covers a far broader class of persons than the

“narrow” category of unconscious drivers addressed by the Mitchell plurality’s “general

rule.” 154 Moreover, the Mitchell plurality made clear that its general rule was not, in fact,

a per se rule—“almost always” is not the same as “always.”155 Section 3755, by contrast,

purports to provide a categorical authorization for warrantless blood draws. No such

authority may be found in Mitchell, or in any other precedent.

       More fundamentally, when addressing a facial constitutional challenge to a statute

under the Fourth Amendment, “the proper focus of the constitutional inquiry is searches

that the law actually authorizes, not those for which it is irrelevant.” 156 The Patel Court

further explained:

       If exigency or a warrant justifies an officer’s search, the subject of the search
       must permit it to proceed irrespective of whether it is authorized by statute.
       Statutes authorizing warrantless searches also do no work where the
       subject of a search has consented. Accordingly, the constitutional
       “applications” that petitioner claims prevent facial relief here are irrelevant
       to our analysis because they do not involve actual applications of the
       statute. 157

       Similarly here, where the Commonwealth and OAG suggest that Section 3755 can

be applied constitutionally because there may be specific situations in which a

warrantless blood draw is necessitated by exigent circumstances, the Commonwealth

and OAG are no longer discussing Section 3755 at all. A case-specific showing of exigent

circumstances relies upon no statutory authority for its constitutional validity. That is, if



153    Id.
154    Mitchell, 588 U.S. at 843-44.
155    Id. at 843, 857.
156    Patel, 576 U.S. at 418.
157    Id. at 418-19.


                                       [J-43-2024] - 45
the blood draw in this case were justified by exigent circumstances, then the search would

be justified by those exigent circumstances, not by Section 3755. Where the statute is

invoked, as it was in this case, that is a wholly separate and distinct source of authority.

But problematically for Section 3755, the authority that it purports to provide is, in fact,

unconstitutional.   We need not blind ourselves to this fact merely because lawful

warrantless searches may be conducted in situations that are “irrelevant” to Section 3755

because they “do not involve actual applications of the statute.” 158

       The Supreme Court of Wisconsin similarly assessed an identical suggestion in

Prado when striking down Wisconsin’s incapacitated-driver statute—that State’s version

of Section 3755:

       [T]he determination of whether there were exigent circumstances does not
       involve any application of the incapacitated driver provision. In other words,
       if the State relies on exigent circumstances to justify a search, it is not
       relying on the statute. See [State v. Prado, 

, 202 (Wis. Ct.
       App. 2020)] (“If a court ultimately determines that such a search is
       constitutional in any given case, it will be on the basis of an exception such
       as exigent circumstances, not on the basis of anything set forth in the
       implied consent statute itself.”). Searches of unconscious drivers may
       almost always be permissible as the State contends, but then they are
       almost always permissible under the exigent circumstances exception to
       the warrant requirement pursuant to the Mitchell plurality, not under the
       statute. 159

       Additionally, to borrow from Justice Sotomayor’s Mitchell dissent:

       The Court granted certiorari to answer “[w]hether a statute authorizing a
       blood draw from an unconscious motorist provides an exception to the
       Fourth Amendment warrant requirement.” The answer to that question is
       no. Whether exigent circumstances nevertheless require that the
       warrantless blood draw be upheld is an independent issue. 160


158    Id. at 418-19.
159    Prado, 960 N.W.2d at 879.
160    Mitchell, 588 U.S. at 870 n.5 (Sotomayor, J., dissenting).


                                     [J-43-2024] - 46
       To be clear, it may very well be that the circumstances of this case could have

independently established that the seizure of Hunte’s blood was justified by an exigency,

along the lines of that discussed by the Mitchell plurality. But this argument is not only

waived, it is irrelevant. Hunte’s blood was seized pursuant to Section 3755. A case-

specific showing of exigent circumstances—which is not necessitated by the statute—

provides a wholly distinct, constitutional authority. Such a showing, had it been made,

would not establish a constitutional “application” of Section 3755; it would establish that

the statute did not apply at all. Here, Section 3755 did apply.

       Accordingly, the Commonwealth’s and OAG’s arguments concerning exigent

circumstances present no obstacle to our consideration of the constitutionality of Section

3755, and they do not establish that Section 3755 was validly and constitutionally applied,

in this case or in any other.

       D. Subsequently Obtained Search Warrants

       The final suggestion that Section 3755 should be spared constitutional scrutiny

derives from the Commonwealth’s emphasis upon the two search warrants that the

troopers in this case obtained after the relevant blood draw—one warrant to obtain the

earlier-drawn samples and a second to have those samples tested. The deficiency in this

suggestion is the same as that inherent in the suggestion of exigent circumstances. On

its face, Section 3755 requires no search warrant at all—neither at the time of the blood

draw nor at any time thereafter. A subsequently obtained search warrant does nothing

to cure the statute’s facial authorization of a warrantless search. Rather, if a search

warrant is obtained in a given case—which is by no means a certainty under the plain

language of Section 3755—it provides a law enforcement officer with authority separate

from the statute, i.e., the constitutional authority that always accompanies a search

warrant. “If exigency or a warrant justifies an officer’s search, the subject of the search




                                     [J-43-2024] - 47
must permit it to proceed irrespective of whether it is authorized by statute.” 161 Reliance

upon a search warrant is altogether different from reliance upon Section 3755. And as

discussed repeatedly above, the blood draw in this case was conducted solely under the

purported authority of Section 3755.

       Like the arguments concerning the exigent circumstances doctrine, the

Commonwealth’s argument concerning the subsequently issued search warrants is

immaterial to the constitutionality of Section 3755. Because Section 3755 facially requires

no search warrant and no assertion of exigent circumstances, these purported

justifications are “irrelevant to our analysis because they do not involve actual applications

of the statute.” 162 To the extent that the Commonwealth and the OAG argue that Section

3755 is constitutional because it does not preclude a law enforcement officer from

obtaining a search warrant, this suggestion is plainly meritless. 163 The constitutional

problem is that the statute does not require a search warrant. At bottom, whether in

regard to the exigent circumstances argument or that concerning the later-issued search

warrants, the Commonwealth’s and OAG’s positions reduce to the assertion that Section

3755 is constitutional only when it is not actually applied.

       The Commonwealth additionally suggests that Section 3755 may be understood

as merely authorizing hospital personnel to draw blood prior to receiving a search warrant,

and that a subsequently obtained search warrant ensures that law enforcement officers



161    Patel, 576 U.S. at 418-19.
162    Id. at 419.
163     See Commonwealth’s Br. at 14 (“Nothing in the statute prohibits law enforcement
from obtaining a search warrant to seize the blood sample at a later date . . . .”); OAG’s
Br. at 10 (“[W]hile the statute requires probable cause, it does not require a warrant. But
neither does it preclude one. Where the police do obtain a warrant, applying § 3755
would be constitutional.”).


                                       [J-43-2024] - 48
obtain the blood samples lawfully. 164 This is not what Section 3755 says; again, the

statute facially requires no search warrant at any point, whether before or after the blood

draw.    Just as importantly, the Commonwealth’s position disregards that the initial

intrusion into the body is unquestionably significant for Fourth Amendment purposes. As

McNeely made clear, a “compelled physical intrusion” to extract blood is an “invasion of

bodily integrity” that “implicates an individual’s ‘most personal and deep-rooted

expectations of privacy.’” 165 Moreover, although Birchfield is an opaque decision in

certain respects, on this point the Birchfield Court could not have been more clear: blood

draws are highly intrusive upon individual privacy interests, and, compared to breath

testing, there is “no satisfactory justification for demanding the more intrusive alternative

without a warrant.” 166 Contrary to the Commonwealth’s position, the physical intrusion

into the body itself is a constitutionally significant search, regardless of the treatment of

the samples after the fact. Thus, as it concerns the constitutionality of Section 3755, the

Commonwealth’s argument about the subsequently obtained search warrants is not

responsive to the constitutional problem.

        E. Position of the Concurring and Dissenting Opinions (the “Dissents”)

        Our dissenting colleagues make the same analytical error as the Commonwealth

and the OAG.       Justice Brobson contends that Section 3755 “can be applied in a


164    Commonwealth’s Br. at 13 (Section 3755 “outlines the limited circumstances
where emergency room personnel may draw blood, prior to receiving a search warrant,
and later provide it to law enforcement”).
165    McNeely, 

 (quoting Winston v. Lee, 

 (1985)); see
also id. at 159 (plurality) (“We have never retreated . . . from our recognition that any
compelled intrusion into the human body implicates significant, constitutionally protected
privacy interests.”); id. at 174 (Roberts, C.J., concurring in part and dissenting in part)
(“We have already held that forced blood draws can be constitutional . . . but that does
not change the fact that they are significant bodily intrusions.”).
166     Birchfield, 579 U.S. at 474.


                                       [J-43-2024] - 49
constitutional manner” because “nothing within the plain text of Section 3755 forecloses

a situation where either law enforcement obtains a warrant” for a blood draw or “the

Commonwealth later establishes by a preponderance of the evidence that the warrantless

seizure of a person’s blood fell within an exception to the warrant requirement.” 167 Justice

Mundy agrees with this suggestion. 168

       As discussed at length above, the Dissents endorse precisely the line of reasoning

that the Supreme Court of the United States expressly rejected in Patel. We once again

emphasize Patel’s straightforward rationale. The purported “constitutional applications”

of Section 3755 that the Dissents imagine are those in which a blood draw would be

authorized by a wholly distinct source of authority that has nothing to do with Section

3755, i.e., a search warrant or the demonstration of a valid exception to the warrant

requirement. These are exactly the sort of hypotheticals that are, as the U.S. Supreme

Court said in Patel, “irrelevant to our analysis because they do not involve actual

applications of the statute.”169 The Dissents contend that the statute is constitutional so

long as it is not actually applied. The infirmity of the Dissents’ position should be apparent

on its own terms, but Patel makes it impossible to overlook.

       Justice Brobson further suggests that Section 3755 does not actually purport to

authorize a warrantless search because it is “addressed not to law enforcement but,

rather, to medical professionals.”170 This disregards the substance of the law. Section

3755 unambiguously purports to authorize a blood draw on the basis of “probable cause”




167    Conc. & Diss. Op. (Brobson, J.) at 6.
168    Conc. & Diss. Op. (Mundy, J.) at 1.
169    Patel, 576 U.S. at 419.
170    Conc. & Diss. Op. (Brobson, J.) at 5.


                                      [J-43-2024] - 50
to suspect DUI, 171 and it mandates that the blood samples be tested and the results

turned over to governmental officials upon request (for use in a criminal prosecution, as

happened in this case). Such a blood draw indisputably is a search within the meaning

of the Fourth Amendment, yet the statute requires neither a search warrant nor any

demonstration of a valid exception to the warrant requirement. As Justice Brobson

concedes, this is “constitutionally problematic.” 172    And it remains “constitutionally

problematic” notwithstanding the unsurprising and, indeed, intuitive fact that medical

personnel, rather than law enforcement, actually perform the act of drawing the blood.

       Neither Dissent makes any attempt to establish that the warrantless searches

contemplated by Section 3755 are constitutional under any recognizable exception to the

warrant requirement.     Neither Dissent articulates any theory sounding in exigent

circumstances, so-called “implied consent,” or otherwise. While Justice Brobson frankly

concedes the infirmity of the statute, as commonly understood and applied by law

enforcement officers and courts across Pennsylvania, both Dissents labor nonetheless to

overlook the facial unconstitutionality of Section 3755. They do so solely by invoking

circumstances in which the evidence that the statute contemplates could be obtained by

other means. This is precisely what Patel instructs us not to do. The law could not be

more clear in this regard.

       Under the Dissents’ approach, Section 3755 would be wholly immune from

constitutional scrutiny, as would every other conceivable statute that purports to authorize

a warrantless search or seizure. 173 There would be no such thing as a facial constitutional


171    75 Pa.C.S. § 3755(a).
172    Conc. & Diss. Op. (Brobson, J.) at 5.
173      See Patel, 576 U.S. at 418 (noting that such “logic would preclude facial relief in
every Fourth Amendment challenge to a statute authorizing warrantless searches,” and
“[f]or this reason alone,” the “argument must fail”).


                                     [J-43-2024] - 51
challenge under the Fourth Amendment. Consider a hypothetical statute authorizing

police officers to routinely enter and search people’s homes without a search warrant—

an action that would be plainly unconstitutional under the Fourth Amendment and Article

I, Section 8 of the Pennsylvania Constitution. Under the logic of the Dissents, such a

statute could never be declared facially unconstitutional (i.e., unconstitutional in all of its

applications), because there could be circumstances where the officers obtain a search

warrant even though the statute does not require them to do so. Such reasoning is

precisely what the Patel Court’s discussion was meant to foreclose.

       One always could imagine a scenario where the contemplated evidence could be

obtained with a search warrant or a showing of exigent circumstances. This does not

establish a constitutional “application” of Section 3755; rather, it hypothesizes a scenario

in which the statute does not apply at all. As Patel instructs, “the proper focus” of our

constitutional inquiry is upon the “searches that the law actually authorizes, not those for

which it is irrelevant.” 174 When applied on its own terms, without adding language to the

statute or hypothesizing irrelevant fact patterns, the searches contemplated by Section

3755 remain constitutionally deficient. This is true in every scenario in which Section

3755 applies as written.

                                              V.

       Section 3755 purports to authorize warrantless searches of blood in the absence

of any legitimate exception to the Fourth Amendment’s warrant requirement. As the

foregoing discussion makes clear, neither the exigent circumstances doctrine nor

consent—actual or “implied”—provides the categorical authority that the statute claims.

Thus, Section 3755 is clearly, plainly, palpably, and indeed, facially unconstitutional under




174    Id.


                                      [J-43-2024] - 52
the Fourth Amendment. 175 Moreover, because the “Fourth Amendment rulings of the

Supreme Court of the United States” provide “the baseline for the protections afforded by

Article I, Section 8 of the Pennsylvania Constitution,” Section 3755 violates the

Pennsylvania Constitution as well. 176 This is so notwithstanding any prior approval of

Section 3755 that our decisions have suggested in decades past, before the changes to

Fourth Amendment doctrine brought about by McNeely and its progeny. 177

       Section 3755(a) is the offending provision, but the trial court’s order covers

Section 3755(b) as well. This was not error, because Section 3755(b) is wholly reliant

upon Section 3755(a), and the provisions plainly are not severable. Section 3755(b)

requires hospital personnel to comply with the mandate of subsection (a), and it provides

them with civil and criminal immunity for performing the blood draws. Subsection (b),

however, provides this immunity only for conducting blood draws “pursuant to this section”

or performing “any other duty imposed by this section.”178 Without the mandate of Section




175    In light of our conclusion, we need not address the Commonwealth’s third issue as
stated, in which the Commonwealth argues that the trial court should not have dismissed
the charges that were premised upon Hunte’s blood draw. The Commonwealth’s
argument on this score is based solely upon its assertion that the trial court erred in
declaring Section 3755 unconstitutional. The trial court did not err.
176    Wolfel, 233 A.3d at 789-90.
177    See Riedel, 

; Commonwealth v. Shaw, 

(Pa. 2001).
178    See 75 Pa.C.S. § 3755(b) (“No physician, nurse or technician or hospital
employing such physician, nurse or technician and no other employer of such physician,
nurse or technician shall be civilly or criminally liable for withdrawing blood or obtaining a
urine sample and reporting test results to the police pursuant to this section or for
performing any other duty imposed by this section. No physician, nurse or technician or
hospital employing such physician, nurse or technician may administratively refuse to
perform such tests and provide the results to the police officer except as may be
reasonably expected from unusual circumstances that pertain at the time of admission.”).


                                      [J-43-2024] - 53
3755(a), which is unconstitutional, Section 3755(b) has no application. Accordingly, the

trial court did not err in declaring Section 3755 unconstitutional in its entirety. 179

       Some may have concern that, absent the mandate and the immunity provided in

Section 3755(b), hospital personnel might be resistant to law enforcement requests to

conduct blood draws in the situations to which Section 3755 applies. 180 The possibility of

such challenges, however, cannot overcome the fact that Section 3755(a) is facially

unconstitutional. In any event, there is no reason that the General Assembly could not

enact a law that would require hospital personnel to comply with a lawful law enforcement




179    Justice Mundy differs, reasoning that we have identified “absolutely nothing
unconstitutional” about the provision of immunity to medical personnel in Section 3755(b).
Conc. & Diss. Op. (Mundy, J.) at 2. This misses the point. As explained further below,
there is, indeed, nothing unconstitutional about the General Assembly’s policy
determination that medical personnel should enjoy civil and criminal immunity for
assisting law enforcement in obtaining blood samples for use in DUI investigations. As
written, however, Section 3755(b) has no application absent the unconstitutional mandate
of Section 3755(a). With regard to subsection (b), the issue is not its constitutionality, but
rather its nonseverability. Contrary to Justice Mundy’s portrayal, the immunity provided
in subsection (b) is not a freestanding grant to “medical personnel complying with
requests from law enforcement to draw blood from suspected intoxicated drivers.” Id.
Rather, the immunity is tethered specifically to the provision that purports to authorize
unconstitutional searches. Without Section 3755(a), Section 3755(b) makes no sense.
       In any event, Justice Mundy’s suggestion that Section 3755(b) may be salvaged
is premised upon the notion that there are “situations where Section 3755(a) can be
applied constitutionally, such as when law enforcement obtains a warrant or an exception
to the warrant requirement is later determined by a court to apply.” Id. As explained in
detail above, this position is plainly erroneous under the Supreme Court of the United
States’ decision in Patel, which Justice Mundy does not discuss or acknowledge.
180      See OAG’s Post-Submission Memorandum, 5/16/2024, at 2-3 (arguing that,
without Section 3755(b), “medical personnel would have no obligation or incentive to
perform a blood draw, and they would be deterred from doing so by the risk of potential
liability”).


                                       [J-43-2024] - 54
request for a blood draw and provide them with immunity accordingly, much the same as

that provided in Section 3755(b) and Section 1547(j). 181

       To that end, it is worth stressing that compliance with the Fourth Amendment’s

requirements in this area would not require an approach that differs dramatically from

existing practice under Section 3755. One could imagine, for example, a statute that

requires hospital personnel to comply with, and provides immunity for, a request for a

blood draw where the requesting officer certifies that he or she has probable cause to

suspect DUI and: (1) has obtained a search warrant; or (2) is unable to obtain a search

warrant under the circumstances. A hospital form not unlike the one that Trooper German

used in this case could provide a space for such a certification. Should the suspect

ultimately be charged with DUI and seek suppression of the blood test results, the

Commonwealth would be able to rely upon the search warrant, or could make a case-

specific showing of exigent circumstances if a warrantless blood draw was necessary.

Indeed, if the requesting officer hypothetically “checked the box” indicating that he or she

was relying upon exigent circumstances for the blood draw, then the government already

would be beginning to build a record to later prove that assertion in court, if necessary.

       Thus, even if the potential for some practical difficulties was relevant to the

constitutionality of Section 3755, which it is not, such challenges are not insurmountable.

There is little reason for concern that satisfying the Fourth Amendment in cases such as

this one will prove to be particularly burdensome for law enforcement or lead to any


181    See 75 Pa.C.S. § 1547(j) (“No physician, nurse or technician or hospital employing
such physician, nurse or technician, and no other employer of such physician, nurse or
technician shall be civilly liable for withdrawing blood and reporting test results to the
police at the request of a police officer pursuant to this section. No physician, nurse or
technician or hospital employing such physician, nurse or technician may administratively
refuse to perform such tests and provide the results to the police officer except as may
be reasonably expected from unusual circumstances that pertain at the time the request
is made.”).


                                     [J-43-2024] - 55
appreciable reduction in the effectiveness of DUI investigations. This is especially true

where there are undoubtedly ways that the General Assembly could remedy any

foreseeable     difficulties   through   appropriate   legislation,   free   from   the   facial

unconstitutionality of Section 3755. 182

         What the General Assembly cannot do, however, is subject the people to

unconstitutional searches by legislative fiat. Section 3755 is facially unconstitutional

under the Fourth Amendment to the United States Constitution and Article I, Section 8 of

the Pennsylvania Constitution.

         The order of the Court of Common Pleas of Cumberland County is affirmed.

         Chief Justice Todd and Justices Donohue, Dougherty and McCaffery join the

opinion.

         Justice Mundy files a concurring and dissenting opinion.

         Justice Brobson files a concurring and dissenting opinion in which Justice Mundy

joins.




182    To be clear, we are not in any way “requiring the legislature to enact” any law, as
Justice Mundy suggests. Conc. & Diss. Op. (Mundy, J.) at 3. The example that we
discuss here is merely illustrative of means that the General Assembly could employ, if it
so wishes, to provide medical personnel with immunity without categorically mandating
unconstitutional, warrantless intrusions into people’s bodies.


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