IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeremy Bonanno :

: No. 1798 C.D. 201 6

v. :

: Submitted: April 7 , 201 7 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, :

Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: September 14, 2017

The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing ( Department of Transportation ) appeals from the October
6, 2016 order by the Court of Common Pleas of Beaver County (trial court)
sustaining the statutory appeal of Jeremy Bonanno (Bon an no) from a o ne

- year suspension of his operating privilege imposed by the Department of Transportation

.

Background and Procedural History
On the evening of December 10, 2015, Bonanno crashed his vehicle into
a telephone pole. Officer Charles Galzarano, of the Midland Borough Police
Department, responded to the motor vehicle accident. Bonanno informed Officer
Galzarano that he had wrecked his car into the telephone pole, but that he was not2

injured. After smelling alcohol on Bonanno’s breath, Officer Galzarano requested
that Bonanno perform field sobriety tests. Upon failing three field sobriety tests,
including a nine

- step walk and turn, a one

- legged stand, and finger dexterity,

Bonanno ad mitted to Officer Galzarano that he had consumed a “ couple of drinks. ”

( Reproduced Record “R.R.” at 29a

- 31a.)

Officer Galzarano subsequently arrested Bonanno under suspicion of
driving under the influence of alcohol (DUI). Officer Galzarano requested th at
Bonanno submit to a chemical blood test, and Bonanno refused. Officer Galzarano
then brought Bonanno to the Midland Police Station. Officer Galzarano then read the
standard Pennsylvania DL

- 26 Chemical Test Warning Form to Bonanno, which
included a req uest to submit to a blood test, and then provided the form to Bonanno.
However, Bonanno refused to sign the form. Officer Galzarano read the form again
and requested that Bonanno s ubmit to a chemical blood test. Bonanno again refused.

(R.R. at 31a

- 37a.)

Approximately ten

- to

- fifteen minutes after Bonanno was brought to the

Midland Police Station, his wife arrived to pick him up and Bonanno was released.
Bonanno’s wife then went back into the police station and informed Officer

Galzarano that Bonanno wou ld submit to a blood test, but Officer Galzarano
informed her that Bonanno had already refused it. (R.R. at 37a

- 43a.)

On January 13, 2016, the Department of Transportation suspended
Bonanno’s driving privileges for a period of twelve months, effective Fe bruary 17,

2016 . His driving privileges were suspended due to Bonanno’s violation of 75

Pa.C.S. §1547 of the Pennsylvania Vehicle Code (Vehicle Code), Chemical Test

Refusal

. (R.R. at 8a

- 10a.)3

On January 25, 2016, Bonanno appealed the suspension, all eging that it

violated Section 1547 of the Vehicle Code and sought a judicial stay pursuant to

Section 1550 of the Vehicle Code. (R.R. at 8a

- 10a.)

On June 23, 2016, the trial court held a hearing, at which Officer

Galzarano and Bonanno both testified as witness es . (R.R. at 23a

- 28a.) Officer

Galzarano testified that,

I will say I explained the consequences to him. To be honest with you, I’m not going to, I’m not going to say I totally feel that he understood, to be honest with you. I feel like with hi s state of mind with being intoxicated and then just being involved in an accident, I do believe that even me explaining to him multiple times he probably d idn’t understand at that point.
(R.R. at 35a.) Bonanno testified that he did not fully understand t he Section 1547
warnings and that his wife went back to the station to tell Officer Galzarano that

Bonanno would submit to the blood test but was informed that it was too late. (R.R.

at 42a

- 43a. ) The trial court ordered that Bonanno “may file a Memorandum of Law
in support of his position” no later than July 1, 2016, and that the Department of
Transportation “may file a reply Memorandum within seven (7) days of the receipt of

the Memorandum of [Bon anno].” (R.R. at 65a.)

On June 26, 2016 , Bonanno filed a memorandum in support of statutory
appeal, arguing that he did not fully understand his rights, and that once he
understood, he “communicated his desire to submit to the chemical testing.” (R.R. at

66a

- 73a.) Bonanno further argued that his confusion was analogous to MacDonald v.
Department of Transportation, Bureau of Traffic Safety , 708 A.2d 154, 155

- 56 (Pa.
Cmwlth. 1998), where this Court held that attempting to sign a form that was then

taken aw ay demonstrated a willingness to submit to a blood test and that MacDonald
was legitimately confused about her rights regarding chemical testing.4

On July 5, 2016, the Department of Transportation filed a memorandum
in support of a one

- year license suspen sion for refusing to submit to a chemical test

of blood. (R.R. at 84a

- 92a.) The Department of Transportation argued that there was

no medical evidence that he was unable to take the test or that any “injury contributed
to him not understanding the Office r” or any other condition “that would prevent him
from understanding what the officer was reading to him.” (R.R. at 88a.) The
Department of Transportation further argued that, according to this Court’s decision

in McKenna v. Department of Transportation, Bureau of Driver Licensing , 72 A.3d
294 (Pa. Cmwlth. 2013), police officers have no duty to ensure that a licensee
understands the consequences of refusing a chemical test, only that an officer must
convey to the licensee the consequences of refusing to s ubmit to a chemical test. The
Department of Transportation argued that being under the influence of alcohol is not
a defense to making a knowing and conscious refusal. Additionally, the Department
of Transportation argued that the facts here are distingu ishable from MacDonald

because Bonanno never indicated that he was confused about the warnings. The
Department of Transportation further argued that the law required Bonanno to
consent, not Bonanno’s wife, and that Bonanno himself never consented to the b lood

test. (R.R. at 87a

- 90a.)

On July 25, 2016, the Department of Transportation filed a
memorandum on why Birchfield v. North Dakota

,

___ U.S.

___, 136 S.Ct. 2160, 195
L.Ed.2d 560 (2016), issued in June 2016 during the pendency of the trial court

procee ding, has no impact on civil license suspension

. Birchfield addressed the
legality of blood tests in traffic stops, finding that motorists may not be criminally
punished for refusing to submit to a blood test based on legally implied consent to

submit to them. Birchfield, ___ U.S. ___, 136 S.Ct. at 2185. The Department of5

Transportation argued that Birchfield is not applicable here because the Pennsylvania
Supreme Court has held that an operating privilege suspension for a chemical test
refusal is permissible and that Pennsylvania’s implied consent law is different than

the statutes at issue in Birchfield . ( R.R. at 78a

- 83a .)

On Ju ly 27, 2016, Bonanno filed an amended memorandum in support of
statutory appeal conceding that Birchfield is not applicable and that the court “should
not rely upon it in granting [Bonanno’s] appeal of the suspension of his operator’ s license privilege.” (R.R. at 93a

- 96a.)

On October 6, 2016, the trial court held that the Department of
Transportation met its burden under s ection 1547 of the Vehicle Code and that
Bonanno’s arguments do not rebut that burden. (Trial court op. at 7). However, the

Trial Cou rt found that Birchfield was controlling here , despite both Bo nanno and the
Department of Transportation contending otherwise . (Trial c ourt op. at 8

- 11.) The

trial court found that,

t he escalation of an offense from one that carries no possibility of a jail sentence and a fine of $300.00 to one that allows a maximum of five years in jail and a maximum $10,000.00 fine, due Petitioner’s refusal to submit to a blood test, is precisely wha t the Birchfield Court held was unlawful.

Id. The trial court also noted that both the Birchfield decision and the Department of
Transportation’s revised DL

- 26B form were both issued during June 2016 and that

the revised DL

- 26B form eliminated “any langua ge referring to the enhanced
criminal pen alties previously referenced.” Id. The Trial Court issued an order
sustaining Bonanno’s appeal. Id. at 12.6

On October 27, 201 6 , the Department of Transportation appealed to this

Court. 1

Discussion

On appeal, the Department of Transportation argues that there was no
merit to Bonanno’s argument that he did not understand his rights and that the trial

court erred in sua sponte raising Birchfield and, alternatively, that even if Birchfield
was properly raised, it “explicitly approved a State’s use of civil sanctions.” (Brief
for Appellant, at 11.)

Section 1547 of the Vehicle Code

The Department of Transportation argues that the trial court correctly
held that there was no merit to Bonanno’s argument t hat he did not understand his
rights. More specifically, the Department of Transportation argues that it met its
prima facie burden of proof under Section 1547 of the Vehicle Code and that

MacDonald does not apply here because the licensee in MacDonald at tempted to sign
the consent form prior to the officer taking it away . (Brief for Appellant, at 12.)

Section 1547 of the Vehicle Code addresses one

- year suspensions of
operating privileges, stating that, the Department of Transportation must prove that

th e party (1) was arrested by a police officer who had reasonable grounds to believe
that he was operating or was in actual physical control of the movement of a vehicle

while he was committing an offense under 75 Pa.C.S. §3802; (2) was asked to submit

1 Our scope of review is limited to determining whether the trial court committed an error of law, whether the trial court abused its discretion, or whether the findings of facts are supported by competent evidence. Department of Transportation, Bureau of Traffic Safety v. O’Connell , 555 A.2d 873, 875 (Pa. 1989).7

to a chemical test ; (3) refused to do so ; and (4) was specifically warned that a refusal
would result in the suspension of his operating or driving privilege and would result
in his being subject to the penalties set forth in 75 Pa.C.S. §3804(c) if he were late r convicted of violating 75 Pa.C.S. §3802(a)(1). Martinovic v. Department of
Transportation, Bureau of Driver Licensing , 881 A.2d 30, 34 (Pa. Cmwlth. 2005).

Here, as the trial court correctly found, Officer Galzarano arrested

Bonanno after Bonanno wrecke d his automobile into a telephone pole, failed three
field sobriety tests, and admitted to having a couple of alcoholic drinks prior to
operating a vehicle . (R.R. at 29a

- 31a.)

.

Following Bonanno’s arrest, Officer Galzarano asked him three times to

submi t to a chemical test, and Bonanno refused each time. (R.R. at 31a

- 37a.) It was
only after Bonanno left the Midland Police Station with his wife that his wife

returned and said that Bonanno would submit to a chemical test. (R.R. at 37a

- 43a.)
Though Bonann o argued at trial that his wife’s request was sufficient, the trial court
correctly held that Bonanno refused to submit to a chemical test as a result of his
prior refusals and because his wife’s request was not clear. King v. Pennsylvania
Department of T

ransportation, Bureau of Driver Licensing

, 828 A.2d 1, 4 (Pa.

Cmwlth. 2002) (“ The law is well settled that anything less than a licensee’s
unqualified, unequivocal assent to submit to chemica l testing constitutes a refusal....

[A] refusal to take the test is not vitiated by a subsequent request to take the test, even
if this subsequent request was made within a few minutes of the refusal.”)

.

Further, the trial court correctly found that Bonanno was warned that his
refusal to submit to chemical testing coul d result in the suspension of his operating
privileges. Although Bonanno argued at trial that he was confused,

[a] n officer’s sole duty is to inform motorists of the implied consent warnings; once they have done so, they8

have satisfied their obligation. Additionally, and not without significance in this case, officers have no duty to make sure that licensees understand the O’Connell warnings or the consequences of refusing a chemical test.

Martinovic , 881 A.2d at 35.

At trial, Bonanno argued that he was confused, citing MacDonald , 708

A.2d at 154

- 56. In MacDonald , the licensee was arrested under suspicion of a DUI
and was presented with a form with chemical test refusal warnings. The licensee
asked several questions regarding her rights and attempted to sign the form, but the
officer took it away. Id. This Cour t held that, “it is not a refusal

. . . when a licensee
delays a decision because of confusion as to his or her rights and then assents to
submit to a chemical test when those rights are made clear.” Id.

As the trial court correctly held, this case is distinguishable from

MacDonald because here Bonanno neither delayed nor asked questions regarding his
rights, but instead , he explicitly refused to submit to a chemical test. Therefore, the
trial court correctly found that the Department of Transportation met its burden to

support a one

- year suspension of operating privileges under 75 Pa.C.S. §1547.

Application of Birchfield
The Department of Transportation next contends that the trial court erred

in sua sponte raising Birchfield and rendering the decis ion based solely on the issue

that the court raised. More specifically, the Department of Transportation argues that
the trial court’s scope of review was limited to the “issues raised by the parties

themselves” and that here neither the Department of Tra nsportation nor Bonanno

raised the effect of Birchfield on appeal. (Brief for Appellant, at 19

- 20.) Further, the
Department of Transportation notes that Bonanno explicitly stated that Birchfield did
not apply to his appeal. (R.R. at 94a.)9

A trial cour t errs when it introduces theories not raised by the parties.

Hrivnak v. Perrone , 372 A.2d 730, 73 0

- 3 4 ( Pa. 1977) ( The trial judge erred by sua

sponte providing “ the jury with a ground for recovery which was neither solicited nor
urged by the moving party, and which was in fact steadfastly resisted by the moving

party t hroughout the entire proceeding”); see also Snider v. Thornburgh, 436 A.2d

593, 601 n. 8 ( Pa. 1981) ( A court must confine its consideration to the issues
presented by the parties ); Depa rtment of Transportation, Bureau of Driver Licensing

v. Harrington , 784 A. 2d 871, 874 (Pa. Cmwlth. 2001) (A trial court commits

reversible error when it raises an issue sua sponte and then decides a case based on
that issue); Department of Transportation, Bureau of Traffic Safety v. Reott , 424 A.2d

991 , 992 (Pa. Cmwlth. 1981) (“A trial court errs when it rules on an issue not
presented to it, because an i ssue no t raised is deemed waived ” ).

Here, neither the Department of Transportation nor Bonanno raised the
applicability of Birchfield . Further, Bonanno explicitly denied any applicability of
Birchfield to his appeal, stating that, “Plaintiff concedes that, as applied to the instant

case, Bi rchfield vs. North Dakota, [___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560

(2016)]

, is not applicable, and that this Honorable Court should not rely upon it in
granting Plaintiff’s appeal of the suspension of his operator’s license privilege.”

(R.R. at 94a. ) Given that neither party raised the applicability of Birchfield and that
Bonanno explicitly rejected Birchfield , we find that the trial court erred in deciding

this case on the basis of the holding in Birchfield.

However, even if the trial court was p roper in raising Birchfield , this
Court recently held that, “ Birchfield does not apply to implied consent laws that
merely impose civil penalties.” Boseman v. Department of Transportation, Bureau of

Driver Licensing

, 157 A.3d 10 , 21 (Pa. Cmwlth.)

, appeal denied , ___ A.3d ___ (Pa.,10

No. 210 MAL 2017, filed August 22, 2017)

. In Boseman , a licensee had her
operating privileges suspended under 75 Pa. C.S. § 1547(b)(1)(i) for refusing to
submit to a chemical test after being arrested on suspicion of a DUI. Id. at 12

. This

Court reasoned that Birchfield , by its own language, limited its holding to criminal
prosecutions for refusing a warrantless blood test following an arrest for a DUI by
stating that “[p]etitioners do not question the constitutionality of thos e [civil] laws,
and nothing we say here should be read to cast doubt on them.” Id

. at 21 (quoting
Birchfield

, ___ U.S. ___, 136 S.Ct. at 2185). This Court held that Birchfield did not
apply to civil suspensions of operating privileges and granted the Department of
Transportation’s request to re

- instate Boseman’s one

- year suspension. Id. at 21

- 22.

Therefore, as in Boseman

, the trial court here improperly applied Birchfield to a civil
suspension of operating privileges. 2

Accordingly, the order of the trial court is reversed . T he Department of
Transportation is directed to re

- instate the one

- year suspension of Bonanno’s
operating privilege.

_______________________________ _ PATRICIA A. McCULLOUGH, Judge

2 But see Gray v. Commonwealth of Pennsylvania, Department of Transportat ion, Bureau of Driver Licensing , (Pa. Cmwlth., Nos. 1759 and 1760 C.D. 2016, filed June 9, 2017), 2017 WL 2536439 (McCullough, J., concurring) (noting disagreement with application Birchfield ).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeremy Bonanno :

: No. 1798 C.D. 2016

v. :

: Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, :

Appellant :

ORDER

AND NOW, this 14 th day of September , 201 7 , the order of the Court
of Common Pleas of Beaver County Pennsylvania, dated October 6, 201 6 , is
hereby reversed. T he Department of Transportation, Bureau of Driver Licensing,
is hereby directed to reinstate the one

- year suspension of the operating privilege of
Jeremy Bonanno.

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeremy Bonanno :

:

v. :

: Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, : No. 1798 C.D. 2016

Appellant : Submitted: April 7, 2017

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

DISSENTING OPINION BY JUDGE COSGROVE FILED: September 14, 2017

The Majority's focus on the minor factual differences between this

case and those in MacDonald v. Department of Transportation, Bureau of Driver

Licensing

, 708 A.2d 154 (Pa. Cmwlth. 1998) is misplaced. Our underlying
reasoning behind MacDonald is equally as applicable here: confusion surrounding

the request to submit to a blood test does not constitute refusal. By the arresting

officer's own testimony, h e was unsure as to whether Jeremy Bona n no ( Licensee )

understood the warning that refusal would result in suspension of operating
privileges: “I feel like with his state of mind with being intoxicated and then just
being involved in an accident

, I do belie ve that even me explaining to him
multiple times he probably didn’t understand at that point.” (Reproduced

Record (R.R.) at 35a.; see also Majority

, slip op

. at 3 (emphasis added) .)

Whatever the cause of Licensee ’s confusion, whether intoxication, or “ju st beingJMC

- 2

involved in an accident,” or both, it is clear that even the arresting officer was

unsure of what was being conveyed to Licensee when the request for submission

was made. (R.R. at 35a.) Under these circumstances, it cannot be said with any

cert ain ty that the officer adequately informed Licensee as required by law.
Coupled with Licensee 's ultimate consent to submit, as conveyed by his wife to the

officer, the trial court's decision should be upheld. As such, I must dissent.

___________ ________________ JOSEPH M. COSGROVE, Judge