Last updated: February 20. 2013 1:38AM - 1439 Views

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WILKES-BARRE – The pending Supreme Court ruling on whether police can obtain blood samples without a warrant for testing in suspected driving under the influence cases might have little bearing in Pennsylvania, area defense attorneys said Thursday.

The case before the court dealt with a Missouri man whose blood was drawn without a warrant in 2010 while he was handcuffed after police stopped his swerving car. Tyler McNeely had failed field sobriety tests and refused a breath test, police said.

Police faced the enemy of time in the case, as alcohol diminishes in the blood stream and obtaining a warrant would have taken a few hours.

Whether the situation rose to the level of an exigent circumstance requiring immediate attention – and overriding the need for a warrant – was the issue put before the justices.

Missouri courts ruled the blood test could not be used as evidence because it was obtained in violation of the Constitution's right against unreasonable searches.

Rightly so, the local defense attorneys said Thursday.

They said they haven't encountered the same situation here and won't, given the laws in place in Pennsylvania.

As a practical matter, it's not going to make much of a difference, Tunkhannock attorney Paul Philip Ackourey said of the Missouri case. Ackourey always recommends an accused person submit to the testing, he said, otherwise the penalties could be substantial.

I don't think there are any issues out there, added attorney Nanda Palissery of Kingston. If police need to have blood drawn for medical reasons, they'll get a warrant, Palissery said.

The attorneys explained that under Pennsylvania's implied consent law, police can request a driver submit to a blood test, but if the person refuses, it results in a license suspension for 12 months. In addition, the refusal can be used as evidence in court and, if there is a driving under the influence conviction, more time could be tacked on to the license suspension.

It makes no sense not to submit, Ackourey said.

Former Sullivan County District Attorney Max Little heard Wednesday's argument before the Supreme Court. He attended the session as part of his job as traffic safety resource prosecutor with the Pennsylvania District Attorneys Association.

If McNeely wins and the Supreme Court finds it was an invalid search, that's not going to change anything in Pennsylvania, said Little, offering his opinion.

But if the court rules in favor of Missouri, the Pennsylvania Constitution still guarantees additional protections. The rights pertaining to search and seizure are an integral part of the state constitution and not an amendment, as is the case in the U.S. Constitution, he said. Legally, the Constitution is the floor and the state constitution is the ceiling, he said.

What's in place in Pennsylvania right now certainly protects the rights of the accused, Little said.

The McNeely case could be looked at from a public safety perspective as well, he pointed out. Usually repeat offenders refuse to submit to testing and they continue to drive even with a suspended license, he said.

The case might put in place a mechanism by which you're assured in the event of a personal refusal you have a better tool for prosecuting the truly dangerous, he said.

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