The Legal: Pa. Supreme Court: Warrantless Blood Draws Under Section 3755 Are Unconstitutional

Matthew T. Mangino
The Legal Intelligencer
October 16, 2025

The Pennsylvania Supreme Court has ruled that warrantless blood draws based on “probable cause” of driving under the influence permitted by 75 Pa.C.S.A. 3755 are unconstitutional.

In the past, the Supreme Court ruled that 3755(a) required “hospital personnel, in cases where probable cause exists to believe that an emergency room patient has violated Pennsylvania’s DUI statute, to take blood samples for BAC testing.” There was no requirement in the statute, however, “that the BAC testing be conducted at the request of a police officer.” The only condition for a legal blood draw under Section 3755 was “the abstract requirement that probable cause exists to believe” there was a violation of the DUI statute.

The Supreme Court has acknowledged that Section 3755 was “inartfully drafted” because it “required a probable cause determination without specifying who is to make such determination, or how such an abstract requirement is to be met.”

Section 3755 is a component of Pennsylvania’s “implied consent” scheme, which, together with Section 75 Pa.C.S.A. 1547, is designed to facilitate the investigation and prosecution of driving under the influence (DUI) offenses by requiring motorists to submit to chemical testing in order to measure their blood alcohol concentration.

As stated expressly in Section 1547(a), the theory underlying the implied consent scheme is that, by electing to drive a vehicle in Pennsylvania, a person “shall be deemed to have given consent” to a search of his or her bodily fluids when a police officer develops “reasonable grounds to believe” that the person has committed a DUI offense.

Although Section 1547 allows a person who has been arrested for DUI to refuse a request and mandates that the testing not be conducted against the arrestee’s will, the statute discourages refusal by imposing consequences upon the exercise of that right, including driver’s license suspension, authorization to use the refusal as evidence of guilt in a future DUI prosecution, and imposition of enhanced criminal penalties upon the refusal to submit to breath testing, but not blood testing.

On June 17, 2025, the Pennsylvania Supreme Court decided Commonwealth v. Hunte, ___ A.3d ___, 2025 WL 1703981 (Pa. 2025).

Larry Wardell Hunte was the driver in a single-car accident that resulted in the death of his passenger. He was transported to the hospital, a state trooper who was with Hunte was unable to obtain his consent to a blood draw because he was unconscious.

The trooper requested that hospital personnel draw Hunte’s blood pursuant to Section 3755. The hospital proceeded to draw Hunte’s blood without his knowledge or consent, and without the trooper first obtaining a warrant for the blood draw.

The state police later obtained search warrants to get the blood sample and to have a laboratory test the sample to determine the defendant’s blood alcohol. Analysis of Hunte’s blood revealed the presence of alcohol and controlled substances.

Hunte was charged with homicide by vehicle while DUI and related offenses. He filed a motion to suppress the results of the blood draw on the basis that Section 3755 was unconstitutional. The trial court in Cumberland County granted Hunte’s suppression motion and found Section 3755 unconstitutional. As a result, the commonwealth filed a direct appeal to the Pennsylvania Supreme Court.

In analyzing Section 3755, the Supreme Court stated that “on its face, Section 3755 … purports to authorize the seizure of a person’s blood on the basis of probable cause to suspect DUI, without the need for a search warrant or the demonstration of any circumstance-specific exception to the warrant requirements of the Fourth Amendment and Article I, Section 8.”

Article I, Section 8 of the Pennsylvania Constitution provides “No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment to the U.S. Constitution provides, “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.”

The Supreme Court first examined whether blood draws in DUI cases fell under any exceptions to the warrant requirement. The Supreme Court determined that “statutory ‘implied consent’ cannot serve as an independent, categorical exception to the warrant requirement.”

The court also concluded that “warrantless blood searches are not authorized by any categorical understanding of exigent circumstances.” The court concluded that “neither the exigent circumstances doctrine nor consent—actual or ‘implied’—provides the categorical authority” to excuse the warrant requirement when conducting a blood draw.

Therefore, the high court ruled “Section 3755 is clearly, plainly, palpably, and indeed, facially unconstitutional under the Fourth Amendment,” and also unconstitutional under Article I, Section 8 of the Pennsylvania Constitution.

This decision does not limit the ability of medical personnel to draw blood for independent medical purposes. Blood drawn for medical purposes may be subject to a search warrant for purposes of measuring the blood alcohol content through subsequent testing.

About six weeks after Hunte was decided, the Pennsylvania Superior Court decided Commonwealth v. Persico, 2025 EDA 2024 (Pa.Super 2025). Joseph L. Persico was involved in a deadly automobile accident. After being transported to the hospital, medical staff ordered blood and urine tests. A vial of blood was sealed and locked in the lab without testing. A month later police obtained a search warrant and asked the hospital to test the blood for the first time.

The Superior Court found—in light of the Supreme Court striking down Section 3755—the commonwealth must establish the medical reason for drawing the blood at Persico’s suppression hearing.

No hospital personnel testified at the suppression hearing and the commonwealth presented no evidence that Persico’s blood draw occurred for independent medical purposes. As a result, the Superior Court found “the commonwealth entirely failed to meet its burden.”

In Commonwealth v. Jones-Williams, 279 A.3d at 508 (Pa. 2022), the Pennsylvania Supreme Court held that if there is no evidence that hospital personnel acted at the direction of police or as an agent of the police in conducting a blood draw, and instead, conducted the blood draw for “independent medical purposes” the blood could be obtained with a warrant.

However, in Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001) the high court made clear that a blood draw does not need to be conducted at the request of a police officer for Section 3755 to be applicable, but need only occur because of a perceived duty arising out of Section 3755 and, of course, the Supreme Court said in Hunte, “Section 3755 is facially unconstitutional under the Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution.”

The Superior Court in Persico ruled “a subsequently obtained search warrant does nothing to cure the statute’s facial authorization of a warrantless search.” The blood draw was not for medical purposes and the trial court’s suppression of the blood test was affirmed by the Superior Court.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County, Pennsylvania. He is the author of "The Executioner’s Toll." You can follow him on Bluesky @matthewmangino.bsky.social or contact him at mmangino@lgkg.com. 

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