The PA Superior Court has decided the case of Commonwealth v. Kurtz, No. 286 MDA 2017 (October 23, 2017), holding that it was not error for the trial court to conclude that Kurtz’s consent to a blood draw – after being informed that he faced enhanced criminal penalties for refusal – was not voluntary under the circumstances.

Kurtz was charged with driving under the influence (DUI) – general impairment, DUI – high rate of alcohol, DUI – highest rate of alcohol, and failure to regard traffic lane while driving on roadways laned for traffic.

Kurtz filed a motion to suppress the blood results. Within his motion to suppress, Kurtz argued that his blood test was obtained in violation of the Fourth and Fourteenth Amendments of the United States Constitution, and Article 1, Section 8 of the Pennsylvania Constitution because his consent to the test was coerced under threat of enhanced criminal penalties, pursuant to Birchfield v. North Dakota, 136 S.Ct. 2160, 2185 (2016). Following a hearing, the suppression court granted Kurtz’s motion and suppressed the results of the blood test, finding that Kurtz “did not knowingly and voluntarily consent to the blood draw.”

The Commonwealth appealed.


The Commonwealth first contended that PA Courts should recognize an exception to the exclusionary rule rooted in Birchfield. Kurtz contended that the good faith exception to the exclusionary rule does not apply because it is contrary to Article 1, Section 8, of the Pennsylvania Constitution. However, the Superior Court declined to recognize a good faith exception to the exclusionary rule, concluding that it would frustrate the purpose of Article 1, Section 8 of the Pennsylvania Constitution by undermining privacy interests inherent in a blood test administered by the state.


The Commonwealth then contended that there was sufficient evidence to establish that Kurtz gave “valid actual consent” to the blood test. The Superior Court noted that when a blood test is performed without a warrant, the search is presumptively unreasonable and, therefore, constitutionally impermissible unless an established exception applies. And, absent a valid, implied consent, the Court requires suppression courts to evaluate a defendant’s actual consent based on the totality of all the circumstances. The Superior Court subsequently found no error in the trial court’s conclusion that Kurtz did not provide voluntary consent for the blood draw. Specifically, the totality of the circumstances existing at the time were that he was under arrest and had been clearly informed [pursuit to the DL-26 Implied Consent Form read to him at the time of his arrest] that if he did not consent, he would face the possibility of heightened criminal penalties.

Accordingly, the trial court’s suppression ruling was affirmed.


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