No Requirement to Give a Second Warning for a Second Blood Test Request

In its recent decision in Commonwealth v. Gorbea-Lespier, the Superior Court held that police officers do not have to give an individual placed under arrest for driving under the influence a second warning pursuant to Commonwealth v. O’Connell when there is a request for a second blood test during the course of an arrest for a single event.

After responding to the scene of an accident, investigating police officers placed GorbeaLespier under arrest for driving under the influence and transported him to a local hospital for the purpose of having his blood drawn. In accordance with O’Connell, the arresting officer advised Gorbea-Lespier that refusal to take the test would result in the suspension of his driving privileges for at least twelve months in addition to any suspension that may result from a conviction for driving under the influence. Gorbea-Lespier was further advised that he did not have the right to speak to an attorney or anyone else prior to testing. Should he chose to request to speak to an attorney, it would be deemed by the officer as a refusal and leave Gorbea-Lespier subject to the most severe penalties under the DUI statute.

Gorbea-Lespier agreed to the blood test. After the blood was drawn, the officer and Gorbea-Lespier were leaving the hospital when the officer was informed that the District Attorney’s office had requested that another blood sample be drawn. The two returned to the hospital and the second sample was taken. Prior to taking the second sample, no warnings were given about the consequences associated with refusal. Gorbea-Lespier cooperated with the arresting officer and complied with his requests throughout the investigation.

At trial, based on the officer’s failure to provide the warnings required by O’Connell, Gorbea-Lespier moved to suppress evidence derived from the second blood test. The trial court ruled that the officer’s failure to so advise Defendant invalidated his consent, especially since Defendant was in custody at the time of the request for a second test. The evidence was suppressed. The Commonwealth appealed.

The Superior Court, in its review of the record, found that the trial court erred in holding that the Commonwealth failed to establish the Defendant’s voluntary consent to the second blood test. The record before the Court established that Gorbea-Lespier exhibited signs of intoxication prior to being taken into custody and he agreed to give the initial blood sample after being properly warned. After learning of the request for a second sample, Defendant immediately consented. The Superior Court held that under the totality of the circumstances, the trial court erred in failing to find Defendant’s consent to the second sample was unequivocal, specific and voluntary.

The Court further held that 0 ‘Connell warnings were not necessary since Defendant did not refuse to submit to blood testing. O’Connell warnings are only necessary when an arestee refuses to submit to a test to determine the alcoholic content of blood. Since there was no question that Defendant was under the influence at the time of his arrest and there was no evidence of refusal, O’Connell warnings were not necessary. Finally, the Court specifically held that there was no requirement for law enforcement to give a second O’Connell warning when there is a request for a second blood test.

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