PA: Consent to blood draw preceded any alleged Birchfield violation, so no suppression

“Here, Moser gave his consent to the blood test while he was in the patrol car on the way to the hospital. … Officers read form DL-26 to Moser at the hospital, after he had already consented to the blood draw. … Accordingly, Moser’s consent was not tainted by the threat of additional criminal penalties as outlined in form DL-26, and therefore, was not obtained in violation of Birchfield and Evans. Consequently, the trial court erred in suppressing Moser’s blood test results on this basis.” Defendant’s raising an additional ground on appeal never presented to the trial court was barred. Commonwealth v. Moser, 2018 PA Super 132, 2018 Pa. Super. LEXIS 509 (May 18, 2018).

The court concludes that defendant did not voluntarily consent to search of a shopping bag in the back seat of the car. It was seen at night through tinted windows and it was mostly closed. It’s improbable the officer could see in it as claimed. The consent form defendant disputes he signed can’t be located by the police. United States v. Gordon, 2018 U.S. Dist. LEXIS 81833 (N.D. Ill. May 15, 2018).*

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