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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH ADAIRE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1616 EDA 2018

Appeal from the Judgment of Sentence April 25, 2018

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

No(s): CP-09-CR-0000133-2017

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 17, 2019

Joseph Adaire (Adaire) appeals from the judgment of sentence of three 

to twenty-three months’ incarceration imposed following his non-jury trial 

convictions for various counts of Driving Under the Influence (DUI) and DUI

with a Suspended License (DUI-S). He challenges the sufficiency of the 

evidence for the DUI-S charge and the trial court’s denial of his motions to 

suppress. We affirm in part, reverse in part, and remand for further 

proceedings.

On May 30, 2016, shortly before 9:00 p.m., Officer Ryan Kolb was 

parked and monitoring traffic when he observed Adaire drive past his location. 

The officer believed some of the windows were illegally tinted and followed. 

Officer Kolb ran the plates and learned the vehicle was owned by Joseph 

Adaire whose driver’s license was suspended due to a DUI conviction. Officer 
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Kolb suspected that the driver was Adaire because the records check indicated 

the vehicle’s owner lived less than a mile from their location. Additionally, the 

check stated that Adaire was born in 1962 and the driver appeared to be 

approximately fifty years old. Officer Kolb then stopped Adaire’s car.

During the ensuing discussion, Officer Kolb observed indicia of 

intoxication and, following Adaire’s performance on field sobriety tests, 

handcuffed and placed Adaire in the back of the patrol vehicle. Officer Kolb 

then “said something to the effect of ‘I have to take you to the hospital, a 

nurse is going to draw your blood. Is that okay?’ And he agreed.” N.T.

Suppression, 11/1/17, at 18. He transported Adaire to the hospital where 

Officer Kolb “advised him again” when the nurse entered the room. “Again, I 

don't recall my exact words, but I said, "The nurse is going to take two vials 

of blood. ‘Are you okay with this?’ or ‘you are okay with this; correct?’ And 

then he agreed.” Id. at 19. Officer Kolb did not read any of the DL-261

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1 The Commonwealth Court has described the DL-26 form as follows:

Beginning on February 1, 2004, Section 1547(b)(2)(ii) of the 

Vehicle Code required a police officer to warn a licensee stopped 

on suspicion of driving under the influence (DUI) that the 

licensee’s refusal to submit to a blood test would subject the 

licensee to enhanced criminal penalties. Section 9.1 of Act of 

September 30, 2003, P.L. 120. Officers followed that requirement 

by reading from DOT Form DL–26, a portion of which tracked that 

statutory language.

Garlick v. Commonwealth, Department of Transportation, 176 A.3d 

1030, 1032 (Pa. Cmwlth. 2018) (footnote omitted). Precedents have stated 
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warnings as his department’s policy was to “only read DL-26 if they refuse.” 

Id. at 34. A nurse drew Adaire’s blood and testing established a blood alcohol 

content level of .163 and the presence of methamphetamine and oxycodone.

Adaire was charged with a litany of DUI crimes and he filed a motion to 

suppress on two grounds. First, he alleged that the seizure was invalid 

because Officer Kolb stopped Adaire for a window tint violation and he lacked 

the authority to do so. Second, he challenged the validity of his consent to 

the blood draw. The court denied the motions following an evidentiary 

hearing.

After a stipulated non-jury trial, the trial court found Adaire guilty of the 

DUI and DUI-S charges. The trial court found that Officer Kolb had reasonable 

suspicion to stop Adaire because he: observed the driver and could 

approximate his age; obtained information that Adaire owned the vehicle and 

had a suspended license; and knew that Adaire’s residence was less than a 

mile away. The trial court also found that the Commonwealth established that 

Adaire had actual notice of his license suspension by putting into evidence 

that notice of his suspension was mailed to him on January 22, 2013, and was 

restored on August 4, 2016. The trial court also determined that statements 

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that officers are required to issue some type of warning. “The law has always 

required that the police must tell the arrestee of the consequences of a refusal 

to take the test so that he can make a knowing and conscious choice.” See 

Commonwealth, Department of Transportation v. O'Connell, 555 A.2d 

873, 877 (Pa. 1989).
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made to Officer Kolb demonstrated Adaire’s knowledge that his license was 

suspended.

As to not suppressing the blood test, the trial court’s analysis found that 

the implied consent warning contained in 75 Pa.C.S. § 1547(b)(2) operates in 

a conditional manner. “I find that there is no requirement that the officer read 

1547(b)(1) warnings since the defendant in this particular case had not 

refused.” N.T. Stipulated Trial, 4/25/18, at 6. Because (b)(1) states “If any 

person placed under arrest for a violation of section 3802 is requested to 

submit to chemical testing and refuses to do so,” the trial court determined 

that (b)(2) is not triggered. The trial court instead determined that Adaire 

gave actual consent to search.

Adaire then took this appeal. For the following reasons, we find that the 

trial court correctly denied suppression on the first ground but erroneously 

denied suppression of the blood results.

2

 We, therefore, reverse and remand 

for further proceedings.

I.

Before addressing the suppression issues, we first decide whether the 

evidence was sufficient to support the conviction for DUI-S. See 

Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013) (“Because a 

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2 We address the first ground because success on those grounds would 

preclude the Commonwealth from proceeding on any of the charges.
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successful sufficiency of the evidence claim warrants discharge on the 

pertinent crime, we must address this issue first.”). Because all that the

Commonwealth established was that his license suspension was mailed, 

Adaire contends the evidence is insufficient to establish that he had knowledge 

that his license was suspended. As explained in Commonwealth v. Vetrini, 

734 A.2d 404 (Pa. Super. 1999):

[T]he Commonwealth must prove that the defendant had actual 

notice that his license had been suspended or revoked. Merely 

establishing that notice was mailed is not sufficient by itself to 

show actual notice. The Commonwealth must establish actual 

notice which may take the form of a collection of facts and 

circumstances that allow the fact finder to infer that a defendant 

has knowledge of suspension.

Id. at 407 (citations and quotation marks omitted).

However, we have recognized the difficulties in establishing actual 

notice:

Notice is a question of fact, and anything that proves knowledge 

or is legal evidence showing that knowledge exists can be 

sufficient. As a practical matter, in most cases it is virtually 

impossible for the Commonwealth to prove positively that the 

defendant received express actual notice of suspension; only the 

defendant would have such knowledge. The Commonwealth, 

relying only upon the facts and circumstances of a case, can, at 

best, impute such knowledge to the defendant. To hold otherwise 

would make the provisions of § 1543 virtually unenforceable and 

unworkable.

Commonwealth v. Crockford, 660 A.2d 1326, 1330 (Pa. Super. 1995)

(footnote omitted). Relevant evidence includes statements indicating 

knowledge of the suspension. See Commonwealth v. Baer, 682 A.2d 802, 

805 (Pa. Super. 1996).
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Here, the Commonwealth submitted a certified copy of Adaire’s driving 

record establishing that his license was suspended in 2012 for a DUI and was 

restored on August 4, 2016, about two months after this incident. 

Additionally, Adaire introduced the police reports in this case. The report 

states that when Officer Kolb made contact with Adaire, “Adaire immediately 

asked me if I could ‘help him out,’ because his license is suspended and he 

had only been driving ‘around the block.’” See Exhibit DS-1B.

3

We find that this evidence was sufficient. In Crockford, we found that 

the evidence was sufficient to establish actual notice because of “three crucial 

facts: 1) appellant’s license had been suspended for a DUI offense; 2) notice 

of appellant’s suspension had been mailed by PennDOT on October 28, 1992;

and 3) appellant failed to produce a current driver’s license when he was 

stopped on March 1, 1993.” Id. at 1331 (footnote omitted). This case is 

similar with respect to the first two facts and Adaire did not produce a driver’s 

license, which is not surprising given his statement demonstrating knowledge 

of the suspension. All of this is evidence that Adaire had actual knowledge of 

his driver’s license suspension.

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3 Adaire concedes in his brief that Officer’s Kolb report makes this comment 

but argues that Officer Kolb did not testify to that at trial. Adaire notes that 

“help [me] out” could have referred to the fact he was committing a DUI 

offense. We agree that is a plausible interpretation, but the sufficiency 

standard of review does not require this Court to give the benefit to the losing 

party’s preferred interpretation of the evidence.
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II.

Adaire’s first suppression claim4is that Officer Kolb stopped his vehicle 

for a window tint violation5 because “the license suspension was never 

mentioned in the police incident report and the tint was all that was 

mentioned.” Adaire’s Brief at 17. He argues that Officer Kolb lacked 

reasonable suspicion to investigate a window tint violation as he stated on 

direct examination that he could see inside the vehicle.

However, the transcript reveals that the tint merely drew Officer Kolb’s

attention, prompting him to run Adaire’s plates. “[W]hat drew my attention 

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4 “[An appellate court’s] standard of review in addressing a challenge to the 

denial of a suppression motion is limited to determining whether the 

suppression court’s factual findings are supported by the record and whether 

the legal conclusions drawn from those facts are correct.” Commonwealth 

v. Boyd Chisholm, 198 A.3d 407, 411 (Pa. Super. 2018) (citation omitted). 

“Because the Commonwealth prevailed before the suppression court, we may 

consider only the evidence of the Commonwealth and so much of the evidence 

for the defense as remains uncontradicted when read in the context of the 

record as a whole.” Id. (citation omitted). “Where the suppression court’s 

factual findings are supported by the record, [the appellate court] is bound by 

[those] findings and may reverse only if the court’s legal conclusions are 

erroneous.” Id. (citation omitted). “Where ... the appeal of the determination 

of the suppression court turns on allegations of legal error, the suppression

court’s legal conclusions are not binding on an appellate court, whose duty it 

is to determine if the suppression court properly applied the law to the facts. 

Thus, the conclusions of law of the courts below are subject to [ ] plenary 

review.” Id. (citation omitted).

5 “No person shall drive any motor vehicle with any sun screening device or 

other material which does not permit a person to see or view the inside of the 

vehicle through the windshield, side wing or side window of the vehicle.” 75 

Pa.C.S. § 4524(e)(1).
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was the window tint. I then followed the vehicle. At that point I ran the 

registration. And there is maybe a 20 second delay where I am following the 

car prior to stopping it where I confirmed all that info.” N.T. Suppression, 

11/1/17, at 49. Adaire emphasizes the fact that the police report does not list 

the DUI-S charge which “proves” that the window tint violation was the reason 

for his stop. However, he cites no case for the proposition that a police officer 

is limited to the information contained in his report when testifying as to why 

he stopped the vehicle. The omission of that information from the report 

merely goes to the officer’s credibility. The trial judge credited Officer Kolb’s 

testimony regarding the reasons for the stop and we must defer to that 

finding.

In the alternative, Adaire argues that Officer Kolb’s observations were 

insufficient to permit a stop since he would not have been “able to determine 

[Adaire’s] age from a view of 1-2 seconds when it was dark out at night.” Id. 

He argues that this case is akin to Commonwealth v. Andersen, 753 A.2d 

1289 (Pa. Super. 2000), where we determined that a traffic stop for a 

suspended driver’s license offense was invalid.

Andersen examined whether the officer had “articulable and 

reasonable grounds to suspect that a violation of the Vehicle Code had 

occurred,” and that phrase was interpreted as equivalent to probable cause. 

Id. at 1291-92. In Andersen, the officers only knew only that the vehicle 

was owned by Andersen and that Andersen had a suspended license. We 
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found that was insufficient to establish probable cause for the stop because it 

was based on a mere assumption that Andersen was the driver.

However, “articulable and reasonable grounds” came from the theneffective statute, 75 Pa.C.S. § 6308(b). In 2003, the statute was amended

and a traffic stop is now permitted on reasonable suspicion if it serves an 

investigatory purpose. Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa. 

Super. 2010) (en banc) (“The present form of Section 6308(b) reflects its 

amendment by the Pennsylvania Legislature in 2004, which inserted a 

reasonable suspicion standard.”).

All that Officer Kolb had to have was reasonable suspicion of DUI-S 

based on the information known to him, not probable cause like the officers 

in Andersen. And, unlike the officers in Andersen, Officer Kolb had much 

more than a mere hunch or assumption that Adaire was the driver. He could 

roughly identify the driver’s age and the vehicle was less than one mile from 

the vehicle owner’s registered address. The vehicular stop clearly served an 

investigative purpose as Officer Kolb could make contact with the driver and 

determine whether it was, in fact, Adaire. Accordingly, we find that the trial 

court properly denied the portion of the suppression motion seeking to 

invalidate the stop and all its fruits.

III.

Adaire also argues that his consent to the blood draw was involuntary 

because Officer Kolb did not give any warnings about the blood draw or a right 
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to refuse the blood draw. He contends that Officer Kolb’s failure to comply 

with 75 Pa.C.S. § 1547(b)(2) vitiates the voluntariness of Adaire’s consent

and the results of the test should be suppressed. The Commonwealth 

contends that the implied consent law does not apply because Adaire gave 

actual consent, which is an exception to the Fourth Amendment separate and 

apart from implied consent. To address this issue, it is necessary to examine 

what warnings are required or not required when an officer requests to draw 

blood.

A.

When a motorist is arrested for DUI, police inquiry as to whether the 

suspect will take a chemical test is not an interrogation and no Miranda

warnings are required. If the driver chooses to refuse, the police can still take 

a blood draw without violating the defendant’s Fifth Amendment right against 

self-incrimination. Schmerber v. California, 384 U.S. 757 (1966). In those 

cases, drawing blood requires a search warrant or another exception to the 

warrant requirement. See e.g. Missouri v. McNeely, 569 U.S. 141 (2013). 

In Birchfield v. North Dakota, ––– U.S. ––-–, 136 S.Ct. 2160 (2016), the 

United States Supreme Court held that blood tests do not fall under the search 

incident to arrest exception. As a result, imposing criminal penalties on 

individuals who refuse to submit to a blood draw is impermissible.

However, when a person refuses to take a blood test or a breath test, 

then civil penalties may be imposed, including the loss of a driver’s license. 
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“[E]very State also has long had what are termed ‘implied consent laws.’ 

These laws impose penalties on motorists who refuse to undergo testing when 

there is sufficient reason to believe they are violating the State's drunk-driving 

laws.” Birchfield, 136 S.Ct. at 2166. In pertinent part, Pennsylvania’s 

implied consent law post-Birchfield imposes significant civil penalties if a 

person does not consent. It also provides the driver a right to refuse chemical 

testing:

(a) General rule.--Any person who drives, operates or is in 

actual physical control of the movement of a vehicle in this 

Commonwealth shall be deemed to have given consent to one or 

more chemical tests of breath or blood 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 vehicle in violation of 

section 1543(b)(1.1) (relating to driving while operating privilege 

is suspended or revoked), 3802 (relating to driving under 

influence of alcohol or controlled substance) or 3808(a)(2) 

(relating to illegally operating a motor vehicle not equipped with 

ignition interlock).

(b) Civil penalties for refusal.--

(1) If any person placed under arrest for a violation 

of section 3802 is requested to submit to chemical 

testing and refuses to do so, the testing shall not 

be conducted but upon notice by the police officer, 

the department shall suspend the operating privilege 

of the person as follows:

* * *

(2) It shall be the duty of the police officer to 

inform the person that:

(i) the person’s operating privilege will be 

suspended upon refusal to submit to 
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chemical testing and the person will be 

subject to a restoration fee of up to 

$2,000; and

(ii) if the person refuses to submit to 

chemical breath testing, upon conviction 

or plea for violating section 3802(a)(1), 

the person will be subject to the penalties 

provided in section 3804(c) (relating to 

penalties).

75 Pa.C.S. § 1547 (emphases added).

Because a driver who has been asked to submit to chemical testing and 

is given Miranda warnings might mistakenly believe or be confused about 

whether he could refuse the test, our Supreme Court in Commonwealth, 

Department of Transportation v. O'Connell, 555 A.2d 873 (Pa. 1989),

6

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6 At the time of O’Connell, 75 Pa.C.S. § 1547(b) provided as follows:

B. Suspension for refusal

(1) If any person placed under arrest for a violation of section 

3731 (relating to driving under influence of alcohol or controlled 

substance) is requested to submit to chemical testing and refuses 

to do so, the testing shall not be conducted but upon notice by the 

police officer, the department shall suspend the operating 

privilege of the person for a period of 12 months.

(2) It shall be the duty of the police officer to inform the person 

that the person’s operating privilege will be suspended upon 

refusal to submit to chemical testing.

(3) Any person whose operating privilege is suspended under the 

provisions of this section shall have the same right of appeal as 

provided for in cases of suspension for other reasons.

O’Connell, 555 A.2d at 874 n.1.
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held that before a motorist was required to take a test the officer must 

specifically inform the motorist (1) that his driving privileges will be suspended 

for one year if he refuses chemical testing; and (2) that his Miranda rights 

do not apply to chemical testing. See Commonwealth, Department of 

Transportation v. Ingram, 648 A.2d 285 (Pa. 1994).

In Commonwealth, Department of Transportation, Bureau of 

Driver Licensing v. Boucher, 691 A.2d 450 (Pa. 1997), the Court found that 

because the motorist failed to express a state of confusion regarding his 

obligations once he was given his Miranda rights, no additional instructions 

were required under O’Connell. Boucher reiterated the necessity of giving 

O’Connell warnings even when there is no confusion regarding the warnings 

explaining:

[T]he lineage of decisions beginning with O'Connell have 

established the following principles:

(1) the provisions of the Implied Consent Law which 

require a motorist to submit to chemical sobriety 

testing or face the temporary loss of driving privileges 

have the potential to create confusion for the 

motorist; (2) in order to guarantee that a motorist 

makes a knowing and conscious decision on whether 

to submit to testing or refuse and accept the 

consequence of losing his driving privileges, the police 

must advise the motorist that in making this decision, 

he does not have the right to speak with counsel, or 

anyone else, before submitting to chemical testing, 

and further, if the motorist exercises his right to 

remain silent as a basis for refusing to submit to 

testing, it will be considered a refusal and he will suffer 

the loss of his driving privileges; (3) the duty of the 

officer to provide the O'Connell warnings as 

described herein is triggered by the officer’s request 
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that the motorist submit to chemical sobriety testing, 

whether or not the motorist has first been advised of 

his Miranda rights.

Commonwealth, Department of Transportation v. Scott, 684 

A.2d 539, 545 (Pa. 1996),

We held in Scott that whenever a motorist is requested to submit 

to chemical sobriety testing, the motorist must be provided with 

O'Connell warnings regardless of whether Miranda rights have 

been given and regardless of whether the motorist exhibits 

confusion concerning his rights when asked to submit to testing. 

Id., at 252, 684 A.2d at 545–546.

Id. at 453–54. Police are thus required to give the warning embodied in the 

DL-26 at the time the request is made to the driver, not only after a refusal.

To summarize, 75 Pa.C.S. § 1547(b) provides that when a police officer 

requests chemical testing, the officer must first read the DL-26 warnings; once

informed, the driver has the choice of complying or suffering the consequences 

of refusing chemical testing; and, if the driver refuses, the police cannot obtain 

a blood test under the implied consent statute.

IV.

Very recently, in Commonwealth v. Krenzel, --- A.3d ---, 2019 PA 

Super 159 (Pa. Super. May 20, 2019), this Court addressed this exact issue,

i.e., whether consent to testing is vitiated if the statutory warnings are not 

given. In that case, after conducting a series of field sobriety tests, the driver 

consented after the police officer asked the driver if she was willing to submit 

to a blood test. As here, the police officer never provided any of the DL-26 

warnings that 75 Pa.C.S. § 1547(b)(2) require. We found that absent reading 
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the DL-26 warnings, the consent was not voluntary and any results of the 

blood draw must be suppressed.

In doing so, Krenzel relied on our Supreme Court’s decision in 

Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017). In Myers, a police 

officer arrested the driver for DUI and arranged his transport to the hospital 

for medical attention. Another officer was dispatched to the hospital but 

shortly before his arrival medical staff administered medication that rendered 

Myers unconscious. The officer nevertheless attempted to inform the driver 

of the consequences if he did not consent. The Myers Court determined that 

even an unconscious driver has the statutory right to refuse testing. In so 

finding, our Supreme Court stated:

Subsection 1547(b)(1) confers upon all individuals under arrest 

for DUI an explicit statutory right to refuse chemical testing, the 

invocation of which triggers specified consequences. See 75 

Pa.C.S.A. § 1547(b)(1) (“If any person placed under arrest for 

DUI is requested to submit to chemical testing and refuses to do 

so, the testing shall not be conducted[.]”). Under this statutory 

scheme, a motorist placed under arrest for DUI has a critical 

decision to make. The arrestee may submit to a chemical test and 

provide the police with evidence that may be used in a subsequent 

criminal prosecution, or the arrestee may invoke the statutory 

right to refuse testing, which: (i) results in a mandatory driver’s 

license suspension under 75 Pa.C.S.A. § 1547(b)(1); (ii) renders 

the fact of refusal admissible as J-A07005-19 - 9 - evidence in a 

subsequent DUI prosecution pursuant to 75 Pa.C.S.A. § 1547(e); 

and (iii) authorizes heightened criminal penalties under 75 

Pa.C.S.A. § 3804(c) if the arrestee later is convicted of DUI. In 

very certain terms, [the Supreme] Court has held that, in 

requesting a chemical test, the police officer must inform the 

arrestee of the consequences of refusal and notify the arrestee 

that there is no right to consult with an attorney before making a 

decision. See [Com., Dept. of Transp., Bureau of Traffic 

Safety v.] O'Connell, 555 A.2d [873,] 877–878 (Pa. 1989). “An 
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arrestee is entitled to this information so that his choice to take a 

chemical test can be knowing and conscious.” Id. at 878. The 

choice belongs to the arrestee, not the police officer.

Myers, 164 A.3d at 1170–1171 (some case citations, original brackets, and 

footnote omitted) (emphasis added). A plurality of the Court7 went on to 

state:

Our implied consent statute is not an ipso facto authorization to 

conduct a chemical test. Rather, it is the statutory mechanism by 

which a police officer may seek to obtain voluntary consent, 

unique to this context in that the law prescribes consequences for 

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7 This portion of the opinion, which addressed the constitutionality of the 

implied consent scheme, was joined only by Justices Donohue and Dougherty. 

The quoted analysis by Justice Wecht addressed actual consent with explicit 

reference to “the statutory mechanism by which a police officer may seek to 

obtain voluntary consent[.]” Id. at 1176. Thus, under this view, actual 

consent must be procured by compliance with the statutory mechanisms, 

which includes the officer’s duties to inform under (b)(2). “The opportunity 

to make a knowing and conscious choice—to decide whether to provide actual, 

voluntary consent or to exercise the right of refusal—is essential in every 

situation in which police officers seek to rely upon the implied consent law 

instead of upon a search warrant.” Id. at 1177. As a result, a necessary 

condition of “actual, voluntary consent” in this context is knowing the 

consequences of refusal. Justice Todd, the fourth vote, joined the portion of 

Myers stating:

As noted, the implied consent statute, itself, states that “[i]t shall 

be the duty of the police officer” to inform the arrestee of the 

consequences of refusal. 75 Pa.C.S. § 1547(b)(2). This 

unambiguous statutory command leaves no doubt regarding the 

obligations of the police officer requesting the arrestee’s 

submission to a chemical test. See Weaver, 912 A.2d at 267 

(Baer, J., dissenting) (purpose of the subsection “is to entitle 

arrestees to the information necessary to assess the dire 

consequences they face if they fail to consent to chemical testing, 

to ensure their choice in that regard is knowing and conscious, as 

we described in O'Connell”).

Id. at 1171 n.12 (emphasis added).
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the failure to provide such consent. The statute contemplates a 

police officer’s request that the arrestee submit to chemical 

testing, and, if the arrestee declines the request, “the testing shall 

not be conducted.” 75 Pa.C.S. § 1547(b)(1). The concept of 

implied consent does not allow for a chemical test if the arrestee 

refuses to provide actual consent in response to the police officer’s 

request. If, however, the arrestee complies with the police 

officer’s request, then the arrestee has provided actual consent. 

Contrary to the Commonwealth’s suggestion, the voluntariness of 

consent at the time of the chemical test remains an essential 

consideration.

. . . . The statute does not authorize police officers to seize bodily 

fluids without an arrestee’s permission. Instead, it imposes an 

ultimatum upon the arrestee, who must choose either to submit 

to a requested chemical test or to face the consequences that 

follow from the refusal to do so.

Id. at 1176–77.

Because Officer Kolb was statutorily obligated to inform Adaire of his 

right to refuse chemical testing and the consequences arising therefrom and 

failed to do so, as in Krenzel, we find that Adaire did not make a knowing 

and conscious choice of whether to submit to the blood draw. Since the 

consent was not voluntary, we must reverse that portion of the suppression 

order.

Judgment of sentence vacated. Remanded for further proceedings. 

Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/17/19