Commonwealth v. Danforth

576 A.2d 1013, 395 Pa. Super. 1, 1990 Pa. Super. LEXIS 992

• Court: Supreme Court of Pennsylvania
• Decided: June 14, 1990
• Docket: 01693
• Status: Published

Opinions

MONTEMURO, Judge:

The issue on appeal is whether the taking and testing of a blood sample for alcohol content pursuant to one of the “implied consent” provisions of the Motor Vehicle Code, 75 Pa. C.S.A. § 1547(a)(2),¹ violates the federal and state constitutional prohibition against unreasonable searches and seizures. We find that the breath, blood and urine tests authorized by Section 1547(a)(2) are constitutionally invalid. We reverse appellant’s conviction and remand for a new trial.

Following a trial by jury, appellant, Sharon Louise Dan-forth, was convicted of driving under the influence of alcohol, 75 Pa. C.S.A. § 3731(a)(4). The trial judge denied appellant’s post-trial motions and sentenced appellant to a minimum term of imprisonment of forty-eight (48) consecutive hours to a maximum term of one year.

During the early morning hours of September 29, 1987, the Coolbaugh Township police received a call for help from the Byrd residence. While responding to the call, the police encountered a serious one-car accident which had occurred a few hundred yards south of the Byrd residence. The driver’s side of the vehicle was unoccupied. The police discovered that a male passenger with no apparent signs of life remained in the car. The car had impacted with a tree stump and a utility pole lying on the side of the road.

The investigating police officer continued to the Byrd residence where he found appellant who identified herself as the driver of the car involved in the accident. Appellant told the officer that earlier she had been at the Swiftwater Inn where she met a man who told her that he lived near her in Pocono Farms. At the man’s request, appellant agreed to give him a ride home. During the ride, the man lunged at appellant, grabbed at her clothes, and tried to remove her blouse. Appellant told him to stop several times, but he persisted. When appellant tried to defend herself by pushing her passenger away, she lost control of the car which ran off the road into a nearby wooded area. After the accident appellant ran to the Byrd residence and called the police.

The police officer encouraged appellant to go to the hospital for treatment of her facial injuries. While appellant was receiving treatment at the hospital, the officer came to the hospital to ask more questions. When asked by the officer to recount what had happened, appellant told the same story she had told earlier while at the Byrd residence.

Based solely on the severity of the accident and the fact that a death had occurred, the officer decided to ask appellant for a blood sample. At no time did the officer suspect that appellant was under the influence of alcohol. There was no odor of alcohol about her, her complexion appeared normal, her eyes were not bloodshot, her balance while standing was normal, and she did not need any help in walking. The officer told appellant that he was investigating the accident and that as part of the accident investigation he wanted to obtain a sample of her blood for analysis. Appellant agreed to have a sample of her blood taken. The officer did not tell appellant that the blood test was part of a criminal investigation, or that if the sample resulted in a blood alcohol content of .10% or more she could be charged and prosecuted for driving under the influence. He did not give appellant a Miranda warning or inform her that she may be giving evidence against herself. At no time was appellant asked to sign a consent form. A hospital laboratory technician drew blood from appellant and turned the sample over to the police officer. The police crime lab test results revealed a .21% blood alcohol level.

Appellant was arrested several weeks after the accident, on October 16, 1987, and charged with driving under the influence,² homicide by vehicle,³ homicide by vehicle while driving under the influence⁴ and [failing to] driv[e] vehicle at safe speed.⁵

In her pre-trial motions, appellant moved to suppress the results of the blood test on the basis that the test was taken in violation of her federal and state constitutional right against unreasonable searches and seizures. The suppression court denied the motion to suppress, finding that appellant’s consent to the blood test was implied under the implied consent provision of the Motor Vehicle Code, 75 Pa. C.S.A. § 1547(a)(2). The court never addressed the issue of whether appellant voluntarily consented to the test. After a trial by jury, appellant was convicted of driving under the influence. The trial court denied her post-trial motions. Following sentencing, appellant brought this timely appeal.

Appellant argues that the blood test administered pursuant to § 1547(a)(2) of the Motor Vehicle Code was unconstitutional because the police officer lacked probable cause to believe appellant was under the influence. We agree.

I. CONSTITUTIONALITY OF § 1547(a)(2) UNDER THE FEDERAL CONSTITUTION

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ... “U.S. Const, amend. IV. The Fourth Amendment applies to the States by virtue of the Fourteenth Amendment of the Federal Constitution. New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 738, 83 L.Ed.2d 720 (1985). The Fourth Amendment functions as a constraint against arbitrary intrusions by the government into an individual’s privacy, dignity, and security. Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967); Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966).

In order for the Fourth Amendment concerns to be implicated, we must first ascertain that the test is attributable to the Government or its agents. Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317, 320-21 (1985) (citations omitted); Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983), rev’d on other grounds, Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). At the police officer’s request, appellant’s blood was drawn by a hospital technician who handed over the sample to the officer for testing. Thus, the hospital technician acted as an agent of the Commonwealth in drawing the blood sample. See Commonwealth v. Cieri, supra 346 Pa.Super. at 85, 499 A.2d at 321 (where private hospital nurse drew defendant’s blood according to routine hospital procedure, and later forwarded sample to police for blood alcohol test, nurse acted as an “instrument” or “agent” of the government). The analysis for blood alcohol content was performed by the state police crime laboratory. Given these facts, the taking and testing of appellant’s blood are attributable to the Commonwealth.

It is well-established that the administration of a blood alcohol test is a search falling within the protection of the Fourth Amendment. Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, -, 109 S.Ct. 1402, 1412, 103 L.Ed.2d 639 (1989), citing Schmerber v. California, supra 384 U.S. at 767-68, 86 S.Ct. at 1834; Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985). See also Commonwealth v. Murray, 441 Pa. 22, 25, 271 A.2d 500, 501 (1970); Commonwealth v. Smith, 382 Pa.Super. 288, 555 A.2d 185 (1989).⁶ Since a blood alcohol test constitutes a search within the meaning of the Fourth Amendment, the test is constitutionally valid only if reasonable. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); Schmerber v. California, supra 384 U.S. at 768, 86 S.Ct. at 1834; In re Gartley, 341 Pa.Super. 350, 491 A.2d 851 (1985), aff'd, In re Search Warrant B-21778, 513 Pa. 429, 521 A.2d 422 (1987) (Fourth Amendment prohibits only those searches which are unreasonable).

As a general rule, a search or seizure is not reasonable unless it is conducted pursuant to a search warrant issued by a magistrate upon a showing of probable cause. Commonwealth v. Quarles, 229 Pa.Super. 363, 377, 324 A.2d 452, 460 (1974), quoting Commonwealth v. Maione, 227 Pa.Super. 239, 324 A.2d 556, 558 (1974). See also Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). The warrant requirement is separate from the probable cause requirement, and, even if the search may be performed without a warrant, the search still must be based on probable cause to believe that the person to be searched has violated the law. New Jersey v. T.L.O., supra 469 U.S. at 840, 105 S.Ct. at 742, citing Almeida-Sanchez v. United States, 413 U.S. 266, 278, 98 S.Ct. 2585, 2539, 37 L.Ed.2d 596 (1978); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

The investigating officer in this case testified that he requested the sample of appellant’s blood for testing under the authority of the provision of the Motor Vehicle Code which permits blood tests in the event that the driver is involved in an accident in which death results. The officer was referring to the provision of the “implied consent law” which provides:

§ 1547. Chemical testing to determine smoimt of alcohol or controlled substance

(a) General rale.—Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:

(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

75 Pa. C.S.A. § 1547(a)(2).

The suppression court found that under § 1547(a)(2), appellant had given her implied consent to the chemical testing of her blood, since she had been the operator of a vehicle involved in an accident resulting in death and bodily-injury which required treatment at a medical facility. Appellant concedes that the conditions of § 1547(a)(2) were met. Appellant claims that a test performed under the authority of § 1547(a)(2) is unconstitutional in the absence of probable cause to believe the driver was under the influence of alcohol.

The question we must decide is whether, in authorizing the blood, breath or urine test of a person who is reasonably believed to have been driving a vehicle involved in an accident resulting in death or bodily injury requiring medical care, § 1547(a)(2) authorizes an “unreasonable search.” We hold that searches conducted pursuant to § 1547(a)(2) are unreasonable.

A. The Warrant Requirement

Section 1547(a)(2) empowers a police officer to order the taking and testing of a driver’s blood without a warrant. In Schmerber, supra, the Supreme Court held that the importance of collecting blood samples justified waiving the warrant requirement under the “exigent circumstances” exception to the Fourth Amendment warrant requirement. Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835 (“[T]he delay necessary to obtain a warrant ...' threatens] ‘the destruction of evidence.’ ”) (citation omitted). Thus, we hold that the absence of a warrant requirement under § 1547(a)(2) does not render the blood, breath and urine tests unreasonable under the Fourth Amendment.

B. Probable Cause

Section 1547(a)(2) authorizes the seizure and search of an accused’s blood based solely on the fact that he or she was driving a vehicle which was involved in an accident in which death or an injury requiring medical treatment occurred. The authority to conduct the test hinges on the mere happening of a motor vehicle accident and on the severity of the injuries to the people involved in the accident. The statute does not require any evidence of alcohol or drug use by the driver. Under § 1547(a)(2), a police officer may order a test of a driver’s blood, breath, or urine, even where, in cases such as this one, the driver gives every indication of sobriety and an immediate and contrary explanation for the accident exists. A factual scenario meeting the bare conditions set by § 1547(a)(2) does not satisfy the Fourth Amendment requirement of probable cause. Specifically, in this case the police officer lacked probable cause to believe that appellant had been driving while under the influence of alcohol. The officer testified that he did not suspect intoxication on the part of appellant or notice any of the typical signs of alcohol consumption, such as bloodshot eyes, alcohol on the breath, a staggering walk or inability to maintain balance while standing. Further, appellant offered an explanation for the cause of the accident: she lost control of her car while struggling with her passenger who was trying to remove appellant’s clothes. Nothing in the facts and circumstances known to the police officer warranted a belief that appellant had been driving under the influence. See Commonwealth v. Smith, supra 382 Pa.Super. at 288, 555 A.2d at 189 (1989) (“Probable cause exists when an officer has knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent man to believe that the person seized has committed a crime.”) (citation omitted).

We hold that a test administered solely on the basis of the existence of the conditions set by § 1547(a)(2) is an unreasonable search prohibited by the Fourth Amendment, since facts meeting the § 1547(a)(2) criteria do not support a finding of probable cause to believe that the driver of the vehicle was under the influence.⁷

C. “Special Needs” Exception

While both the existence of probable cause and the requirement of a warrant bear on the reasonableness of a search, in certain exceptional circumstances neither is required. Skinner, supra 489 U.S. at -, 109 S.Ct. at 1414, 103 L.Ed.2d at 661; Almeida-Sanchez, supra 413 U.S. at , 93 S.Ct. at 2541 (Powell, J., concurring). In a limited number of cases, the United States Supreme Court has held that a warrantless search conducted without probable cause may nevertheless withstand the test of reasonableness under the Fourth Amendment when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Skinner, supra 489 U.S. at -, 109 S.Ct. at 1414, quoting Griffin v. Wisconsin, 483 U.S. 868, 873-874, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987); National Treasury Employees Union v. Von Raab, 489 U.S. 656, -, 109 S.Ct. 1384, -, 103 L.Ed.2d 685, 702 (1989); New Jersey v. T.L.O., 469 U.S. at 351, 105 S.Ct. at 747. In these cases, the Court has balanced the intrusion on the individual’s privacy interests against the government’s need to conduct the search to determine whether the search is reasonable. Von Raab, supra 489 U.S. at -, 109 S.Ct. at -, 103 L.Ed.2d at 700; Skinner, supra 489 U.S. at -, 109 S.Ct. at 1414.

Importantly, these “special needs” cases involve civil searches taking place outside of the context of criminal investigations. See Von Raab, supra, (United States Customs Service drug testing of employees seeking transfer or promotion to certain positions); Skinner, supra, (Federal Railroad Administration safety regulations authorizing alcohol and drug testing of employees); Griffin v. Wisconsin, supra, (search of probationer’s home); O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (work-related searches of employees’ desks and offices); New York v. T.L.O., supra, (search of student’s pocketbook by school officials).⁸

In Skinner, supra, the Supreme Court upheld Federal Railroad Administration regulations which, in part, mandate blood and urine tests of railroad crew members in the event of a railroad accident involving a fatality, without requiring individualized suspicion of any particular employee. The Court, applying its balancing test, reasoned that the government’s interest in regulating the conduct of railroad employees engaged in safety-sensitive tasks outweighed the employees’ privacy interests. Skinner, supra 489 U.S. at -, 109 S.Ct. at 1421. Although the regulations in Skinner bear a resemblance to § 1547(a)(2), we conclude that the Skinner holding does not compel a finding that the tests authorized by § 1547(a)(2) are reasonable within the meaning of the Fourth Amendment. In Skinner, the Court stresses the point that the FRA regulations were not promulgated to aid law enforcement in the criminal prosecution of employees but rather were intended “ ‘to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.’ ” Skinner, supra at -, 109 S.Ct. at -, 103 L.Ed.2d at 662, quoting 49 CFR § 219.1(a) (1987). See also, Von Raab, supra 489 U.S. at -, 109 S.Ct. at 1391, 103 L.Ed.2d at 703 (“Our cases teach, however, that the probable-cause standard ‘is peculiarly related to criminal investigations.’ ”).

Unlike the Court in Skinner, we find that there are no “special needs, beyond the normal need for law enforcement,” presented by this case to justify a relaxation of the strict probable cause standard imposed by the Fourth Amendment. The governmental purpose underlying § 1547(a)(2) is to enable the police to gather evidence of intoxication or drug use to be used in criminal proceedings against drivers of vehicles involved in accidents. See 75 Pa.C.S.A. § 1547(c). See also Commonwealth v. Funk, 254 Pa.Super. 233, 240, 385 A.2d 995, 999 (1978) (“primary consideration in enacting the implied consent statute was evidentiary”); Commonwealth v. Quarles, supra 229 Pa. Super. at 381, 324 A.2d at 462 (Commonwealth’s interest reflected in implied consent law is to obtain evidence that can be used against drunken drivers in criminal proceedings). Section 1547(a)(2) is a provision within a statute which criminalizes drunken driving. Thus, the searches authorized by § 1547(a)(2) do not fall within the scope of the civil searches at issue in the Skinner case.

We refuse to extend the holding of Skinner to the context of a criminal investigation of a driving under the influence case. As this Court has noted,

[a] defendant in a criminal prosecution has much at stake-his reputation, his continued capacity to work, and most important, his freedom. The rights provided him by the Fourth Amendment are most important when the stakes are so high.

Commonwealth v. Quarles, supra, 229 Pa.Superior Ct. at 381, 324 A.2d at 462. While we recognize the substantiality of the Commonwealth’s interest in eradicating the problem of drunk driving, and we recognize that evidence of blood alcohol diminishes with time, we cannot conclude that the highly intrusive blood, breath and urine tests designed to lead to evidence for use in criminal proceedings are constitutionally valid in the absence of probable cause. In Schmerber, supra, the Supreme Court noted that police must have evidence of a drunk-driving suspect’s impairment before forcing him or her to endure a blood test:

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear.

Schmerber, supra 384 U.S. at 769-70, 86 S.Ct. at 1835. We find no authority in current Supreme Court cases which would support a relaxation of the probable cause standard, embodied in the plain text of the Fourth Amendment, for the blood, breath and urine tests at issue in this case.⁹

We hold that § 1547(a)(2) authorizes unreasonable searches in violation of the Fourth Amendment. The taking and testing of appellant’s blood amounted to an unconstitutional search and seizure. The results of the blood test were not admissible at trial.

II. CONSTITUTIONALITY OF § 1547(a)(2) UNDER PENNSYLVANIA CONSTITUTION ARTICLE I, SECTION 8

The state constitutional counterpart to the Fourth Amendment is found in Article 1, Section 8, which provides:

§ 8. Security from searches and seizures

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.

PA. CONST, art. 1, § 8.

While we hold today that the searches authorized by § 1547(a)(2) violate the federal constitution, we also find, as a matter of state law, independent of the federal constitution, that the searches are constitutionally invalid under our state constitution. As a general rule, the Pennsylvania Constitution requires a showing of probable cause before a search or seizure occurs.¹⁰ Since § 1547(a)(2) does not require any evidence of a crime upon which the blood, breath, and urine tests may be based, we conclude that the tests authorized by § 1547(a)(2) offend our constitution’s restraints against unreasonable searches and seizures.

In interpreting article I, section 8, our Supreme Court has explained the interplay between the federal and state constitutional protection of fundamental liberties:

While minimum federal constitutional guarantees are “equally applicable to the [analogous] state constitutional provision,” see, e.g., Commonwealth v. Platou, 455 Pa. 258, 260 n. 2, 312 A.2d 29, 31 n. 2 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974), the state has the power to provide broader standards than those mandated by the federal Constitution:

It is well settled that a state may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution, and that the rights so guaranteed may be more expansive than their federal counterparts. Prune-Yard Shopping Center v. Robins, 447 U.S. 74, 80-82, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741 (1980); see Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). See also Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971), cert. granted sub nom. Pennsylvania v. Ware, 405 U.S. 987, 92 S.Ct. 1254, 31 L.Ed.2d 453, subsequently vacated and denied, 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972) (“it appearing that the judgment below rests upon an adequate state ground”). This Court has on numerous occasions recognized the Pennsylvania Constitution to be an alternative and independent source of individual rights. See, e.g. Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Knowles, 459 Pa. 70, 73 n. 3, 327 A.2d 19, 20 n. 3 (1974); Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59, cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961). Commonwealth v. Tate, 495 Pa. 158, 169-70, 432 A.2d 1382, 1387-1388 (1981).

This Court has not hesitated to interpret the Pennsylvania Constitution as affording greater protection to defendants than the federal Constitution. See, e.g., Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).

Commonwealth v. Tarbert, supra 517 Pa. at 282-83, 535 A.2d at 1037-38, quoting Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 466-67 (1983).

In several instances, our Courts have imposed higher standards on searches and seizures than the standards required by the Federal Constitution. See Commonwealth v. Sell, supra (under Article I, section 8, defendant who was charged with possessory offense has automatic standing to challenge admissibility of evidence alleged to be fruit of illegal search and seizure); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980) (under Article I, section 8, bank customers have legitimate expectation of privacy in records kept at a bank pertaining to their affairs, and, thus, have standing to challenge the admissibility of the records); Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985) (under article I, section 8, installation and use of pen registers and dialed number recorders requires a judicial order based upon probable cause).

In light of the United States Supreme Court’s willingness, in some circumstances, to uphold blood, breath and urine tests in the absence of probable cause to believe that the individual being tested is under the influence of alcohol or a controlled substance, we hold that our state constitution provides broader protection against such searches. We conclude that article I, section 8 requires a showing of probable cause before the police can order a blood, breath or urine search.

III. ACTUAL CONSENT

The Commonwealth argues that the test results were admissible at trial because appellant voluntarily consented to the testing. It is well-settled that an actual, voluntary consent to a search will eliminate the warrant and probable cause requirements of the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Walsh, 314 Pa.Super. 65, 460 A.2d 767, 771 (1983), citing Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477 (1946); Commonwealth v. Anderson, 208 Pa.Super. 323, 329, 222 A.2d 495, 498 (1966). See also Commonwealth v. Watkins, 236 Pa.Super. 397, 344 A.2d 678 (1975).

“[W]hether consent has been voluntarily given is a question of fact which must be determined in each case from the totality of the circumstances.” Commonwealth v. Walsh, supra 314 Pa.Super. at 74, 460 A.2d at 771, quoting Commonwealth v. Watkins, supra 236 Pa.Super. at 399, 344 A.2d at 679. Some of the relevant factors that mitigate in favor of a finding that the consent was voluntary are:

(1) if the defendant’s background indicates his understanding of investigating procedures or his understanding of his constitutional rights, [Commonwealth v. Dressner, 232 Pa.Super. 154, 157, 336 A.2d 414, 415 (1975)]; (2) if the suspect has aided an investigation or search, as by providing a key, Id.; (3) if the consenter believed the evidence to be so well concealed that it probably would not be discovered, Id.; (4) the fact of some prior cooperation by the consenter which produced no incriminating evidence, Id.; (5) if the consenter was advised of his constitutional rights prior to giving his consent, Id.; (6) if the suspect felt that the best course of conduct was cooperation given the fact the he had been caught virtually “red-handed”, Commonwealth v. Griffin, 232 Pa.Super. 163, 169, 336 A.2d 419, 421 (1975); and (7) the presence of probable cause to arrest or search the suspect, Commonwealth v. Thompson, 292 Pa.Super. 108, 113-14, 436 A.2d 1028, 1031 (1981).

Commonwealth v. Mancini, 340 Pa.Super. 592, 603-604, 490 A.2d 1377, 1383 (1985). Some of the factors that weigh against a finding that the consent was voluntary are:

(1) that the defendant was interrogated numerous times while the defendant was in custody for hours, Commonwealth v. Smith, 470 Pa. 220, 228-29, 368 A.2d 272, 277 (1977) (a defendant was questioned while in custody for twelve hours); (2) that the police used express or implied threats to obtain the defendant’s consent, Id.; (3) that the defendant acquiesced in an order, suggestion, or request of the police, Id.; and (4) the lack of probable cause to arrest or search the subject, Commonwealth v. Thompson, supra.

Commonwealth v. Mancini, supra 340 Pa.Super. at 604, 490 A.2d at 1383-84.

In light of these factors, we find that appellant’s consent was not valid. Nothing in appellant’s background indicates that she has an understanding of investigating procedures or an understanding of her constitutional rights. Nothing in the record shows that she had any encounters with the criminal justice system prior to her arrest in this case, or that she was ever employed in the law enforcement field. Further, in Commonwealth v. Walsh, supra, this Court noted that any understanding of investigative procedures would not weigh in favor of a finding of an intelligent and knowing consent in the absence of some awareness that the blood test being consented to was part of a criminal investigation. Commonwealth v. Walsh, supra 314 Pa.Super. at 75-76, 460 A.2d at 772. The Court concluded that if the defendant “can establish that he had no notice of the criminal investigative purpose of the blood test, his consent would be invalid.” Id., 314 Pa.Superior Ct. at 77, 460 A.2d at 773. In Commonwealth v. Walsh, the determinative factors which led the Court to conclude that the consent was voluntary were that the patrolman gave a Miranda warning, explained the consent form to appellee, and had appellee sign the consent form. Id., 314 Pa.Superior Ct. at 77-78, 460 A.2d at 773. See also Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988) appeal denied, 521 Pa. 617, 557 A.2d 721 (1989) (where defendant was given Miranda warnings, and read and signed a consent form, defendant voluntarily consented to the search); Commonwealth v. Chiesa, 329 Pa.Super. 401, 478 A.2d 850 (1984) (where defendant had been thoroughly informed of his Miranda rights and had signed a written consent form prior to the search, defendant had voluntarily consented to the search).

The uncontradicted evidence in this case shows that appellant had no notice of the criminal investigative purpose of the blood test. She was not given a Miranda warning or told that the results of the blood test could be used against her in a criminal proceeding, nor did she sign a consent form. Although it was a police officer, rather than a member of the hospital staff, who requested that appellant submit to the test, this fact is not sufficient to establish that appellant had notice that the investigation was criminal in nature. Appellant had summoned the police to the scene of the accident. Despite appellant’s reluctance to seek medical care, the officer encouraged her to go to the hospital for treatment of her facial injuries, and then followed her to the hospital to obtain a blood sample. Before requesting the sample, the officer assured appellant that she was not under arrest and that for furtherance of his accident investigation, he would like to obtain a blood sample. Appellant had no reason to believe that the investigation was any different from a routine accident investigation. Given these facts, we must conclude that appellant was not put on notice of the possible criminal ramifications of the blood test.¹¹

Further, appellant had not been caught “red-handed” in some criminal act, and the police did not have probable cause to arrest her or order the blood test. On the basis of all of these circumstances, we hold that appellant’s consent was not valid.¹²

We hold that the breath, blood and urine tests authorized by § 1547(a)(2) of the Motor Vehicle Code constitute unreasonable searches in violation of our federal and state constitutions. We conclude that the police officer did not have probable cause to order the taking and testing of appellant’s blood, and appellant did not validly consent to the test. Because the blood alcohol test was administered in violation of appellant’s constitutional rights, the results of the test were not admissible at trial. See Commonwealth v. Williams, 380 Pa.Super. 227, 551 A.2d 313, 317 (1988). We vacate the judgment of sentence and remand for a new trial.

Vacated and remanded. Jurisdiction is relinquished.

Joined by CIRILLO, President Judge, and CAVANAUGH, DEL SOLE and JOHNSON, JJ. OLSZEWSKI, J., files a concurring opinion. TAMILIA, J., files a dissenting opinion joined by BROSKY, J. KELLY, J., files a dissenting opinion.

1 . 75 Pa. C.S.A. § 1547(a)(2) (Purdon 1984).

2 . 75 Pa. C.S.A. § 3731(a).

3 . 75 Pa. C.S.A. § 3732.

4 . 75 Pa. C.S.A. § 3735.

5 . 75 Pa. C.S.A. § 3361.

6 . Likewise, a breathalyzer test and the collecting and testing of a urine sample are searches within the meaning of the Fourth Amendment. Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, -, 109 S.Ct. 1412, 1413, 103 L.Ed.2d 639 (1989) (citations omitted).

7 . We note that if an officer does have probable cause to believe a driver has been driving under the influence, the officer has the authority to order a blood, breath or urine test under 75 Pa. C.S.A. § 1547(a)(1). The constitutionality of tests administered pursuant to § 1547(a)(1) has been upheld. Commonwealth v. Quarles, supra 229 Pa.Super. at 388, 324 A.2d at 666.

8 . Although in certain cases involving minimally intrusive searches arising in the criminal context the Supreme Court has relaxed the probable cause standard, the Court has still required a showing of individualized or reasonable suspicion to justify the searches in these instances. See United States v. Sokolow, 490 U.S. -, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); United States v. Brignoni-Ponce, 422 , 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In a few cases, the Supreme Court has upheld searches conducted without individualized suspicion where the searches were conducted in the context of regulatory programs and involved routinized, nonintrusive stops and searches. See United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (interrogative stop at permanent border checkpoint to ascertain motorist’s residence status); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (routine annual inspection by city housing department). Unlike the "substantially less intrusive” searches in these cases, the blood, breath and urine tests in question here entail full-scale searches directly impacting on the individual's privacy. Even if the searches in this case did not involve significant intrusions, § 1547(a)(2) does not meet the less stringent standard of reasonableness applied in these cases since the statute authorizes the tests absent any showing of individualized suspicion.

9 . While the the dissenting opinion acknowledges that the Skinner Court expressly limited its holding to non-law-enforcement situations, the dissent maintains that an extension of the Skinner holding to the context of criminal prosecutions is nonetheless warranted under the facts of this case. The dissent’s application of Skinner contradicts established doctrine on search and seizure, which requires a showing of probable cause or, in some cases, reasonable suspicion, see supra note 8, before a search for prosecutorial evidence can be conducted. There is no question that the Commonwealth has an important interest in removing drunk drivers from the roads and that the Commonwealth has the power to criminalize driving under the influence. Any such regulation, however, must comply with constitutional mandates. The concern that evidence will be lost or destroyed or that a party will escape from accountability has never been a justification for eliminating the requirement that the police have probable cause or, in those cases involving minimally intrusive searches, reasonable suspicion that the desired evidence will be found. Nor has the rate of occurrence of a particular type of criminal offense ever been a justification for conducting searches without probable cause where the search involves the level of intrusion involved in the tests at issue here.

As discussed above in section A, it is well settled that a police officer need not secure a warrant before obtaining a blood sample from a person suspected of driving under the influence.

10 . In a limited number of circumstances, our Supreme Court has relaxed the traditional requirement of probable cause and adopted the balancing test used by the United States Supreme Court in Fourth Amendment cases, analyzing article I, section 8 issues by balancing the individual’s privacy interests against the governmental interest in conducting the search. See Commonwealth v. Tarbert, 517 Pa. 277, 290-91, 535 A.2d 1035, 1041 (1987) (applying Fourth Amendment balancing test to systematic drunk driving roadblocks). We find that application of the balancing test in the present case would be inappropriate, given the high level of intrusiveness of the § 1547(a)(2) searches.

11 . We do not hold that the giving of Miranda warnings is necessary for a finding of valid consent. The absence of Miranda warnings is one factor which supports a finding that appellant was unaware of the criminal nature of the investigation.

12 . In his Dissenting Opinion, Judge Kelly completely and without foundation mischaracterizes our analysis as injecting a Fifth Amendment "knowing and intelligent” waiver analysis into a Fourth Amendment voluntary consent case. As stated above, whether a consent is voluntary must be determined in each case from the totality of the circumstances, in consideration of the factors delineated above. We do not hold that the failure to give a Miranda warning precludes a finding of valid consent. See supra n. 11. We find the case of Commonwealth v. Wabh, supra, to be particularly relevant because of its factual similarity to the case at hand. The cases relied upon by the dissent either support our holding or are easily distinguishable from this case. For example, in Commonwealth v. Slaton, 383 Pa.Super. 301, 556 A.2d 1343 (1989), an en banc panel of this Court held that the appellant pharmacist did not voluntarily consent to a search of his prescription files where he was not informed that he was suspected of criminal conduct and the search was for evidence to be used against him. In Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987), the Supreme Court found that the appellant had voluntarily consented to a search of his car where he had signed a consent form which had been negotiated by his attorney. The consent form stated, in part, that the appellant had been "informed of my constitutional right not to have a search made of the vehicle ... without a search warrant and my right to refuse to consent to such a search____" Id. 510 Pa. at 613, 511 A.2d at 769. An extensive discussion of every case regarding the voluntariness of consent is both unnecessary and pointless, because each case must be decided on the basis of its particular facts; thus, we shall avoid this exercise in futility. We reiterate that under the circumstances of this case, appellant’s consent was not voluntary.