J-A28021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

NICHOLAS BRANDON GUMP

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 524 WDA 2020

Appeal from the Order Entered March 26, 2020

In the Court of Common Pleas of Greene County Criminal Division at 

No(s): CP-30-CR-0000170-2019

BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.

DISSENTING MEMORANDUM BY OLSON, J.: FILED: April 16, 2021

Respectfully, I dissent. Based chiefly on its conclusion that Nicholas 

Brandon Gump (Gump) was not subject to arrest, the learned Majority holds

that Gump was not entitled to DL-26B warnings and that he validly consented 

to chemical testing. Notwithstanding, a prior panel of this Court held, in a 

published decision addressing very similar facts, that a defendant detained for 

investigation of driving under the influence was entitled to DL-26B warnings 

and that consent was not voluntarily given where the warnings were not 

issued. See Commonwealth v. Krentzel, 209 A.3d 1024 (Pa. Super. 2019), 

appeal denied, 222 A.3d 370 (Pa. 2019). I see no compelling factual or legal 

grounds for distinguishing our prior decision in Krentzel and I note that petite 

panels of this Court are bound by its prior published decisions unless they 

have been overruled by an en banc panel or our Supreme Court. See 
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Commonwealth v. Crowley, 605 A.2d 1256, 1257 (Pa. Super. 1992). For 

these reasons and others I set forth below, I am unable to join the Majority.

To recap, the Majority vacates a suppression order, and remands for 

further proceedings, after finding that the trial court misapplied this Court’s 

prior decision in Krentzel. The Majority points out that Gump was not subject 

to arrest (either at the scene or at any time during the incident, see Majority 

Memorandum at 12) and that DL-26B warnings need not be given to DUI 

suspects, in contrast with arrestees. See id. at 13. Distinguishing Krentzel, 

the Majority notes that Gump signed a consent to search form, even though 

it was not well adapted for blood draws. See id. at 12. In addition, the 

Majority declines to read Krentzel as requiring DL-26B warnings in suspected 

DUI cases regardless of arrest status, as such an interpretation would be 

inconsistent with the express terms of the DL-26B form. See id. at 

13. Accordingly, the memo concludes that there was no reason for the officer 

to read the DL-26B warnings to Gump because he was not under arrest.

While the Majority’s memorandum is premised largely on the finding 

that “Gump was not under arrest and, in fact, he was not arrested that 

night,” see id. at 12, several factors militate against giving that assessment

overmastering effect. As a preliminary matter, the assertion stands in 

contrast to the precise factual recitation adopted by the trial court, which 

found that “Gump was not in custody until he was placed into the police car 

for transport to Uniontown Hospital[.]” Id. at 2. This statement by the trial 
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court strongly suggests that Gump was placed in custody when he was 

transferred to the medical facility in a police vehicle. In addition, during the 

interaction with police at the scene of the traffic accident, the trial court found 

that Gump admitted to consuming prescription drugs, displayed a nervous and 

jittery demeanor, and had abnormally contracted pupils. See id. In view of 

these findings, it is reasonable to infer that Gump, like the defendant in 

Krentzel, “was most likely driving under the influence, was about to be 

arrested regardless of whether [he] consented to the blood draw, and, in fact, 

was placed under arrest as soon as [he was to be transported to a medical 

facility for chemical testing].” Id. at 12. Because the facts in this case are 

largely indistinguishable from those that came before this Court in Krentzel,

1

I believe the same result should obtain in both cases. See id. at 12 

(discussing Krentzel and noting that where the foregoing circumstances 

where present and civil penalties could be imposed following a refusal of 

consent, a defendant is entitled to DL-26B warnings).

In reaching its conclusion, the Majority relies heavily upon our Supreme 

Court’s decision in Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017). 

See Majority Memorandum at 11 (noting that warnings mandated by 75 

Pa.C.S.A. § 1547 are triggered by arrest), citing Myers, 164 A.3d at 1175

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1 The Majority is correct that Gump, unlike the defendant in Krentzel, signed 

a written consent form. As even the Majority concedes, however, that form 

was not well-suited to blood draws and did not inform Gump of the 

consequences of refusal.
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n.12. Although Myers stated that, under § 1547, all arrestees were entitled 

to DL-26B warnings, the Myers Court had no occasion to address the rights 

of DUI suspects in anything more than the most general terms (i.e., that 

their consent must be voluntary to comport with constitutional 

requirements). Myers, due to extreme intoxication, was subject to immediate 

arrest, so there was no real call to consider the circumstances present in 

Krentzel or this case, where conscious and responsive DUI suspects were 

later arrested. Myers didn’t consider the precise circumstances here and did 

not foreclosure the extension of DL-26B warnings to DUI suspects. Whether 

valid consent may be obtained from DUI suspects (later arrested) in the 

absence of DL-26B warnings remains, I submit, unresolved under Myers. And 

while Myers does not squarely address this issue, a plurality of the Myers 

Court, in Part II(C) of the opinion (holding that implied consent no longer 

served as an independent exception to the warrant requirement), discussed 

with approval cases from our sister states which said that consent must always 

remain revocable to be considered voluntary. See Myers, 164 A.3d at 

1173-1174. While this view did not garner a majority, it suggests at least 

some support for the position that DUI suspects, who are later arrested, may 

be entitled to DL-26B warnings. If, as Myers suggests, consent must remain 

revocable, a consenting suspect may be entitled to receive DL-26B warnings 

where an arrest occurs shortly after agreement to chemical testing.
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Although Myers did not definitively resolve the precise issue before us, 

treatment of this issue by our Supreme Court in subsequent cases may clarify 

why current case law permits the extension of DL-26B warnings to DUI 

suspects. In Commonwealth v. Jones-Williams, 237 A.3d 528 (Pa. Super.

2020), this Court discussed Commonwealth v. March, 154 A.3d 803 (Pa. 

Super. 2017), vacated, 172 A.3d 582 (Pa. 2017), in which a similar issue 

emerged. As we explained in Jones-Williams, March was unconscious and 

nonresponsive, but not under arrest, at the time of a warrantless blood 

draw. Eventually, he moved to suppress the results and the trial court granted 

his motion. On appeal, this Court concluded, in view of Commonwealth v. 

Riedel, 651 A.2d 135 (Pa. 1994), Commonwealth v. Eisenhart, 611 A.2d 

681 (Pa. 1992), and the interplay of § 1547(a) and 75 Pa.C.S.A. § 3755(a) 

(which allowed warrantless blood draws and the release of results), that 

March’s warrantless blood draw was permissible because March was, among 

other things, unconscious and not under arrest. As we pointed out in 

Jones-Williams, however, the Supreme Court granted a petition for 

allowance of appeal, vacated this Court’s decision in March, and remanded 

the case for consideration in light of Myers. If Myers meant to suggest that 

the absence of an arrest operated as an automatic disqualifier for DL-26B 

warnings, I would infer there would have been no need to vacate the Superior 

Court decision in March. Since March was vacated, however, there is some 
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reason to believe that Myers contemplates the extension of DL-26B warnings 

to DUI suspects.

I have been unable to uncover any subsequent history in March

following its remand from the Supreme Court. Nonetheless, my research has 

uncovered Commonwealth v. Runyon, 240 A.3d 945 (Pa. Super. 2020), a 

published opinion issued on September 18, 2020. The facts in Runyon were 

undisputed. Runyon, a trucker, was driving north on Interstate 81 and 

collided with a vehicle parked on the right-hand shoulder of the highway. A 

state trooper who responded to the accident smelled alcohol on Runyon’s 

person and observed a beer can on the floor of the driver’s side of Runyon’s 

truck. The trooper transported Runyon to a medical facility for a blood draw. 

Runyon remained cooperative and agreed to the procedure. The 

Commonwealth stipulated that implied consent warnings were never 

given. After charges were filed, Runyon moved to suppress the blood draw 

results. The trial court convened a suppression hearing and, thereafter, held 

its decision in abeyance until our Supreme Court disposed of a petition for 

allowance of appeal filed in Krentzel. After the Supreme Court denied that 

petition, the trial court granted Runyon’s suppression motion, citing 

Krentzel. On appeal to this Court, the Commonwealth argued that Krentzel

wrongly adopted a bright line rule that required suppression whenever implied 

consent warnings were not given, even in cases where no DUI arrest had been 

made. The panel in Runyon rejected the Commonwealth’s contention, noting 
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that the rule in Krentzel was binding unless reversed by an en banc Superior 

Court panel or by the Supreme Court. Runyon thus holds that DL-26B 

warnings must be given even in the absence of a DUI arrest, a reading of 

Krentzel which the Majority rejects.

Through my research, I realize that this Court has not been entirely

consistent in its application of Myers when deciding whether the lack of 

DL-26B warnings invalidates the consent given by a DUI suspect. In 

Commonwealth v. Redman, 2018 WL 821878 (Pa. Super. 2018), a panel of 

this Court, like the Majority, observed in an unpublished memorandum that 

§ 1547 did not apply because Redman was not under arrest when his blood 

draw was conducted. Redman, however, predated Krentzel and the panel 

in Redman was not constrained by adverse precedent in reaching the 

conclusion that it did.

My concern for clear and consistent application of our precedents in this 

area is not an abstract or theoretical interest. Law enforcement personnel 

charged with the duty of enforcing traffic laws need to know which procedures 

will be countenanced by the courts and which will not. At least one Superior 

Court judge, citing a related concern for overly technical assessments of valid 

consent, has acknowledged the need for clarity and consistency in assessing 

voluntariness when applying the totality of circumstances test in this 

context. See Commonwealth v. Veasy, 2020 WL 7863828 (Pa. Super. 

2020) (unpublished memorandum) (McCaffery, J. concurring) (noting need to 
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apply totality of circumstances test in a clear and pragmatic manner given 

that courts are examining actions taken by law enforcement in stressful 

situations and often at night). If the need to administer DL-26B warnings 

turns simply on the defendant’s status as either a suspect or an arrestee when 

consent is requested (and regardless of any subsequent change in status), 

then this issue will boil down to one of timing and become somewhat arbitrary 

(e.g., an officer who makes an arrest before seeking consent must give 

warnings but an officer who seeks consent then makes an arrest need not 

recite warnings). Therefore, because Myers does not foreclose the extension 

of DL-26B warnings to DUI suspects, because a growing body of appellate 

case law suggests this approach is appropriate (including binding case law 

disseminated by this Court), and because of the need for clarity and 

consistency in this area, I would hold that the trial court correctly applied the 

decision of this Court in Krentzel when it determined that Gump was entitled 

to suppression. Accordingly, I dissent.