IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeremy Bonanno :

: No. 1798 C.D. 2016

v. :

: Submitted: April 7, 2017

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 (Bonanno) from a one-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 not 
2

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 admitted 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 that 

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 request 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 submit 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 would 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 February 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, alleging 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 witnesses. (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 his 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 

didn’t understand at that point.

(R.R. at 35a.) Bonanno testified that he did not fully understand the 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 [Bonanno].” (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 away 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 suspension 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 Officer” 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 submit 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 distinguishable 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 blood 

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 

proceeding, 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 of 
5

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 July 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 section 1547 of the Vehicle Code and that 

Bonanno’s arguments do not rebut that burden. (Trial court op. at 7). However, the 

Trial Court found that Birchfield was controlling here, despite both Bonanno and the 

Department of Transportation contending otherwise. (Trial court op. at 8-11.) The 

trial court found that, 

the 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 what 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 language referring to the enhanced 

criminal penalties previously referenced.” Id. The Trial Court issued an order 

sustaining Bonanno’s appeal. Id. at 12.
6

On October 27, 2016, 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 that 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 attempted 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 

the 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 later 

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 wrecked 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 

submit 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 Bonanno 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 Transportation, 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 chemical 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 could 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, they 
8

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 Court 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 decision 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 Transportation 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 court errs when it introduces theories not raised by the parties. 

Hrivnak v. Perrone, 372 A.2d 730, 730-34 (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 throughout 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); Department 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 issue not 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, Birchfield 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 proper 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 those [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. The 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 Transportation, 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 14th day of September, 2017, the order of the Court 

of Common Pleas of Beaver County Pennsylvania, dated October 6, 2016, is 

hereby reversed. The 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, Judge
IN 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, he was unsure as to whether Jeremy Bonanno (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 believe 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 “just being
JMC-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

certainty 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