Submitted by Professional License Defense Attorney, Richard Hark.

The Pennsylvania Supreme Court has ruled that warrantless blood draws based on “probable cause” of driving under the influence permitted by 75 Pa.C.S.A. 3755 are unconstitutional.  Nurses and emergency room blood draws are unconstitutional.   In the past, the Supreme Court ruled that 3755(a) required “hospital personnel, in cases where probable cause exists to believe that an emergency room patient has violated Pennsylvania’s DUI statute, to take blood samples for BAC testing.” There was no requirement in the statute, however, “that the BAC testing be conducted at the request of a police officer.” The only condition for a legal blood draw under Section 3755 was “the abstract requirement that probable cause exists to believe” there was a violation of the DUI statute.

The Supreme Court has acknowledged that Section 3755 was “inartfully drafted” because it “required a probable cause determination without specifying who is to make such determination, or how such an abstract requirement is to be met.”

Section 3755 is a component of Pennsylvania’s “implied consent” scheme, which, together with Section 75 Pa.C.S.A. 1547, is designed to facilitate the investigation and prosecution of driving under the influence (DUI) offenses by requiring motorists to submit to chemical testing in order to measure their blood alcohol concentration.

On June 17, 2025, the Pennsylvania Supreme Court decided Commonwealth v. Hunte, ___ A.3d ___, 2025 WL 1703981 (Pa. 2025). Larry Wardell Hunte was the driver in a single-car accident that resulted in the death of his passenger. He was transported to the hospital, a state trooper who was with Hunte was unable to obtain his consent to a blood draw because he was unconscious. The trooper requested that hospital personnel draw Hunte’s blood pursuant to Section 3755. The hospital proceeded to draw Hunte’s blood without his knowledge or consent, and without the trooper first obtaining a warrant for the blood draw. The state police later obtained search warrants to get the blood sample and to have a laboratory test the sample to determine the defendant’s blood alcohol. Analysis of Hunte’s blood revealed the presence of alcohol and controlled substances.

Hunte was charged with homicide by vehicle while DUI and related offenses. He filed a motion to suppress the results of the blood draw on the basis that Section 3755 was unconstitutional. The trial court in Cumberland County granted Hunte’s suppression motion and found Section 3755 unconstitutional. As a result, the commonwealth filed a direct appeal to the Pennsylvania Supreme Court.  In analyzing Section 3755, the Supreme Court stated that “on its face, Section 3755 … 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.”

Article I, Section 8 of the Pennsylvania Constitution provides “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.” The Fourth Amendment to the U.S. Constitution provides, “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 Supreme Court first examined whether blood draws in DUI cases fell under any exceptions to the warrant requirement. The Supreme Court determined that “statutory ‘implied consent’ cannot serve as an independent, categorical exception to the warrant requirement.”  The court also concluded that “warrantless blood searches are not authorized by any categorical understanding of exigent circumstances.” The court concluded that “neither the exigent circumstances doctrine nor consent—actual or ‘implied’—provides the categorical authority” to excuse the warrant requirement when conducting a blood draw.

Therefore, the high court ruled “Section 3755 is clearly, plainly, palpably, and indeed, facially unconstitutional under the Fourth Amendment,” and also unconstitutional under Article I, Section 8 of the Pennsylvania Constitution. This decision does not limit the ability of medical personnel to draw blood for independent medical purposes. Blood drawn for medical purposes may be subject to a search warrant for purposes of measuring the blood alcohol content through subsequent testing.

Therefore, the Supreme Court held that “[s]ection 3755 is clearly, plainly, palpably, and indeed, facially unconstitutional under the Fourth Amendment[,]” and, consequently, that it was also unconstitutional under Article I, Section 8 of the Pennsylvania Constitution. Id. at ––––, 337 A.3d at 518. The Hunte Court reasoned that “[a] blood draw conducted under [s]ection 3755 … remains a warrantless search in search of an exception.” Id. at ––––, 337 A.3d at 508. The Court thus held that section 3755 concerns the seizure of blood from a DUI suspect, which constitutes a search under the Fourth Amendment, and that as such, blood draws require a warrant. Id. Accordingly, the Court concluded that “[s]ection 3755 purports to authorize warrantless searches of blood in the absence of any legitimate exception to the Fourth Amendment’s warrant requirement.” Id. Finally, with respect to the warrants law enforcement procured to seize and analyze the defendant’s blood sample, the Supreme Court determined that “[a] subsequently obtained search warrant does nothing to cure the statute’s facial authorization of a warrantless search.” Id. at ––––, 337 A.3d at 515.

Commonwealth v. Persico, 2025 PA Super 165 (July 29, 2025), reargument denied (Oct. 7, 2025)