J-S52025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JEREMY D. GREENFIELD

Appellee No. 230 MDA 2017

Appeal from the Order Entered January 9, 2017

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0004192-2016

BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 07, 2017

The Commonwealth of Pennsylvania appeals from the trial court’s 

order granting Defendant Jeremy D. Greenfield’s pretrial motion to suppress 

the results of a warrantless blood test1following the stop of his vehicle for 

suspected Driving Under the Influence (DUI). After careful review, we 

affirm.

While responding to a call for a theft-in-progress in a residential 

development, police observed Greenfield’s vehicle driving at a high rate of 

speed down the center of the road. Officer Rocco DeCamillo stopped 

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1

In its notice of appeal, the Commonwealth certifies that the trial court’s 

order granting Greenfield’s motion to suppress terminates or substantially 

handicaps the prosecution of this case. See Pa.R.A.P. 311(d). Thus, the 

appeal is properly before us. Commonwealth v. Ivy, 146 A.3d 241, 244 

n.2 (Pa. Super. 2016).
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Greenfield’s vehicle and immediately noticed an odor of burnt marijuana 

emanating from the vehicle. The officer suspected that Greenfield was 

under the influence of the controlled substance as he exhibited bloodshot 

and glassy eyes and was “droopy” in appearance. Greenfield refused to 

answer Officer DeCamillo’s question regarding when he had last used 

marijuana. The officer administered four field sobriety tests, all of which 

Greenfield failed. Police uncovered marijuana and drug paraphernalia in the 

center console of Greenfield’s car.

Greenfield was arrested and transported to St. Joseph’s Hospital for 

blood testing. After reading Greenfield his O’Connell2 warnings from a DL26 form, Greenfield consented to a blood draw.3

 The results indicated that 

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2 The O'Connell warnings are contained on Pennsylvania’s DL-26 form, 

which provides that if a person refuses to consent to a blood test, his or her 

license could be suspended for at least one year and that, if convicted of 

violating 75 Pa.C.S. § 3802(a), he or she will face more severe penalties 

because of the refusal. See Commonwealth, Dep’t of Trans. v. 

O’Connell, 555 A.2d 873 (Pa. 1989).

3 The affidavit of probable cause states, in pertinent, part:

At 0411 hrs., I transported GREENFIELD to the St. Joseph’s 

Medical Center (SJMC) for chemical testing. We arrived at SJMC 

at 0424 hrs. At 0400 hrs., I read the chemical test warnings to 

GREENFIELD and he consented to a chemical test of blood. He 

signed the DL-26 Chemical Test Warnings form and the SJMC 

Lab Request form.

At 0443 hrs., four samples of blood were drawn from 

GREENFIELD’s right arm. 

Affidavit of Probable Cause, at 6/28/16 at 7.

(Footnote Continued Next Page)
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Greenfield had tetrahydrocannabinol, or THC, the active chemical compound 

in marijuana, in his blood. On June 28, 2016, Greenfield was charged with 

DUI-controlled substance (1st offense),4 possession with intent to use drug 

paraphernalia,5and possession of a small amount of marijuana for personal 

use.6 On October 13, 2016, Greenfield filed a pretrial motion to suppress, 

claiming that there was no probable cause for the vehicle stop and that the 

blood draw was an illegal seizure under Birchfield v. North Dakota, 136 

S.Ct. 2160 (2016).

After a hearing, the trial court issued findings of fact and conclusions 

of law and granted Greenfield’s suppression motion on January 9, 2016. On 

February 1, 2016, Commonwealth filed this timely appeal. On appeal, the 

Commonwealth raises the following issues for our review:

(1) Did the trial court err in suppressing evidence of the 

[Greenfield]’s blood test results pursuant to Birchfield v. 

North Dakota, [] 136 S.Ct. 2160 [] (2016)[,] in a drugrelated DUI prosecution, where blood testing is the only 

available method in Pennsylvania to determine whether a 

suspect is driving under the influence of a controlled 

substance, and thus the Pennsylvania Implied Consent 

Statute is wholly enforceable?

(2) Did the trial court err in suppressing evidence of 

[Greenfield]’s blood test results pursuant to Birchfield v. 

(Footnote Continued) _______________________

4 75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § (d)(1)(i).

5 35 P.S. § 780-113(a)(32).

6 35 P.S. § 780-113(a)(31).
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North Dakota, [] 136 S.Ct. 2160 [] (2016) in a drugrelated DUI prosecution, where the potential penalties 

listed on the DL-26 form properly reflected the penalties 

related to the drug-related DUI convictions, rendering the 

consent to the blood draw voluntary?

On June 23, 2016, the United States Supreme Court decided 

Birchfield, supra, in which it invalidated any criminal sanction assessed for 

refusing to submit to a blood test in the absence of a warrant. The Court 

determined that with regard to blood tests, the police must either seek a 

warrant or show exigent circumstances. As a result, the Court held that 

“motorists cannot be deemed to have consented to submit to a blood test on 

pain of committing a criminal offense.” Id. at 2186. In the case where a 

motorist is not prosecuted for refusing a test but rather has submitted to a 

test where the police gave inaccurate information that the law required 

submission, the Court remanded the case to the state court to “reevaluate 

the motorist’s consent given the partial inaccuracy of the officer’s advisory.” 

Id.

On appeal, the Commonwealth contends that suppression under 

Birchfield was improper where blood testing is the only available method in 

Pennsylvania to determine whether a suspect is driving under the influence 

of a controlled substance.

In Commonwealth v. Ennels, 2017 PA Super 217 (filed July 11, 

2017), our Court recently addressed the issue regarding Birchfield’s 

applicability in drug-related, not alcohol-related, DUI prosecutions. In that 

case, the Commonwealth similarly argued that because breath tests are only 
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useful in determining the presence and amount of alcohol in a suspect’s 

system, warrantless blood tests should be permissible in drug-related DUI 

investigations. In rejecting that argument, our Court held that “[n]o matter 

the substance suspected of affecting a particular DUI arrestee, Birchfield

requires that a blood test be authorized either by a warrant (or case-specific 

exigency) or by individual consent not based on the pain of criminal 

consequences.” Id. at *11.7 Thus, this issue was squarely addressed and 

rejected in Ennels; therefore, the Commonwealth’s first claim on appeal 

fails.

In its final issue, the Commonwealth asserts that because the DL-26 

form properly reflected the penalties for drug-related DUI convictions, 

Greenfield’s consent to blood testing was voluntary. Specifically, the 

Commonwealth contends that implied consent remains a valid exception to 

the warrant requirement.

In Ennels, our Court addressed this same issue, concluding that:

[E]ven if the DUI charges related to only controlled substances,

we would conclude that the trial court did not err in finding [the 

defendant’s] consent was involuntary. The DL-26 form read to 

and signed by [the defendant] informed him that he would face 

enhanced penalties if he refused the blood test. . . . That those 

happened to be the same penalties for DUI (controlled 

substance) is irrelevant to the voluntary-consent analysis. 

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7

In fact, the Supreme Court in Birchfield considered and rejected the 

argument that warrantless blood tests should be permissible as searches 

incident to arrest because they can detect substances other than alcohol. 

136 S.Ct. at 2185.
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Although the form identified the applicable statutes, it did not 

mention the penalties for DUI of a controlled substance, or that 

the enhancements applied only to those convicted of DUI of 

alcohol. Under the totality of the circumstances, a 

reasonable person would believe that the enhanced 

penalties applied if he refused the chemical test and later 

was convicted, regardless of whether he was convicted of 

an alcohol-related DUI or a drug-related DUI.

Id. at *16-*17 (emphasis added). Again, the Ennels court rejected the 

exact argument advanced by the Commonwealth on appeal. Thus, it has no 

merit.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2017