J-S12018-18

2018 PA Super 133

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellant

v.

SHARON KAY JOHNSON

No. 1198 MDA 2017

Appeal from the Order entered June 30, 2017,

in the Court of Common Pleas of Centre County,

Criminal Division, at No(s): CP-14-CR-0000526-2017

BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY KUNSELMAN, J.: FILED MAY 21, 2018

The Commonwealth appeals from the order granting Sharon Kay 

Johnson’s motion to suppress the test results of a warrantless blood-draw. 

We reverse.

A summary of the facts, as stipulated to by the parties, is as follows.

On January 16, 2017, Officer Nicole Foley arrested Johnson with 

probable cause and requested a blood-draw. Within the required two hour 

time period, Johnson was transported to Nittany Medical Center for a blooddraw. At the hospital, Officer Foley gave Johnson the revised DL-26 form; the 

form did not list enhanced criminal penalties as a consequence of failing to 

consent to a blood-draw. Officer Foley read the DL-26 form to Johnson and 

gave her the opportunity to read it herself. She did not tell Johnson that she 

would face greater criminal penalties if she refused consent to a blood-draw. 
J-S12018-18

- 2 -

Johnson, signing the form, consented to the blood-draw. Officer Foley did not 

threaten or coerce Johnson.

Johnson testified that, at the time of her arrest, she sincerely but 

erroneously believed that refusing the blood-draw would subject her to greater 

criminal penalties. This misunderstanding came from Johnson’s previous DUI 

arrest and attending DUI Safe Driving School. 

Johnson filed a pretrial motion, seeking to suppress the warrantless 

blood-draw. She argued that: 1) a blood-draw given based upon the revised 

O’Connell warnings,

1 even without the clause regarding increased penalties,

remained coercive and contrary to Birchfield v. North Dakota, 579 U.S. 

___, 136 S.Ct. 2160 (2016), because 75 Pa.C.S.A. § 3804(c) still contained

the increased penalty language as the law; and 2) Johnson’s existing 

knowledge of the enhanced penalties under 75 Pa.C.S.A. § 3804 rendered her

warrantless blood-draw coercive under Birchfield. The trial court granted 

Johnson’s motion to suppress.

The Commonwealth appealed one issue:

Whether the trial court erred in granting Johnson’s motion 

to suppress, because Officer Foley did not tell Johnson that 

she would face harsher criminal penalties for refusing a 

blood test, making Johnson’s consent voluntary.

____________________________________________

1 “O'Connell warnings” refer to the obligation of police officer to inform 

motorists, of whom the officer requests chemical testing, that the Miranda

rights are inapplicable to such tests under the Pennsylvania Implied Consent 

Law. See Commonwealth, Department of Transportation v. O'Connell,

555 A.2d 873 (Pa. 1989). Critical to this case, the officer must also inform 

motorists of the legal consequences they will face if they refuse consent to the 

blood-draw.
J-S12018-18

- 3 -

See Commonwealth’s Brief at 4. 

Our standard of review for a suppression court’s conclusions is de novo, 

because when police elect not to procure a warrant prior to searching, they 

forgo prior judicial authorization and so invite our highest degree of appellate 

scrutiny on review. See Ornelas v. United States, 517 U.S. 690 (1996). 

That said, we must “take care both to review findings of historical fact only for 

clear error and to give due weight to inferences drawn from those facts by 

resident judges and local law enforcement officers.” Id. at 699.

In making these judgments, our scope of review is limited to only the 

evidence in the suppression hearing. See Commonwealth v. Ennels, 167 

A.3d 716 (Pa. Super. 2017) (citations omitted). “In addition, because the 

defendant prevailed on this issue before the suppression court, we consider 

only the defendant's evidence and so much of the Commonwealth's evidence 

as remains uncontradicted when read in the context of the record as a whole.” 

Ennels at 718–19 (quotation marks and citations omitted). Despite our

narrowed view of the record and the clearly erroneous standard we apply to 

the trial judge’s findings of fact, we cannot sustain the order granting 

suppression of Johnson’s blood-draw in this case.

The governing law in this area is well settled. The Fourth Amendment 

to the Constitution of the United States and Article I, § 8 of the Constitution 

of the Commonwealth of Pennsylvania both prohibit unreasonable searches 

and seizures. “The administration of a blood test, performed by an agent of, 

or at the direction of the government, constitutes a search under both the 
J-S12018-18

- 4 -

United States and Pennsylvania Constitutions.” Commonwealth v. Evans, 

153 A.3d 323, 328 (2016) (citations omitted). If an officer performs a blooddraw search without a warrant, it is “unreasonable and therefore 

constitutionally impermissible, unless an established exception applies. 

Exceptions to the warrant requirement include the consent exception. For 

the consent exception to apply, the consent must be voluntary.” Id.

In granting Johnson’s motion, the trial court concluded that Johnson did 

not voluntarily consent to the blood-draw, because Officer Foley did not inform 

Johnson that the enhanced criminal penalties of 75 Pa.C.S.A. § 3804(c) were 

unconstitutional. The trial court reasoned as follows:

The subject of the search must be made aware of his rights 

against a warrantless search for a waiver to be intelligent 

and for consent to be given.

* * * *

At the time of [Johnson’s] arrest on January 16, 2017, the 

[§ 3804(c)] criminal penalties were still a part of the 

[statute] regardless of their enforceability or redaction from 

the DL-26. It was on January 31, 2017 [a couple of weeks 

after Johnson’s arrest], when [Commonwealth v. Giron, 

155 A.3d 635 (Pa. Super. 2017)], was decided that the 

Superior Court declared 3804(c) unconstitutional.

[Johnson] is expected and assumed to know the law of 

this Commonwealth, including the criminal penalties if she 

refused the blood-draw. See In re Kearney, 7 A.2d 159, 

161 (Pa. Super. 1939) (Ignorance of the law excuses no 

one, according to the ancient maxim, everyone being 

presumed to know the law). [Johnson] was not made aware 

of her rights to refuse against a warrantless search, because 

she was not informed that the enhanced criminal penalties 

of 75 Pa.C.S. § 3804(c) would not be enforced. A citizen, 

like [Johnson], with knowledge of the criminal penalties 

within the law would naturally expect them to be enforced 
J-S12018-18

- 5 -

to the fullest extent possible. Silence by the arresting officer 

is not synonymous with communication of [Johnson’s]

rights, specifically that she would not face enhanced 

criminal penalties for refusal to consent to a search, without 

a warrant when the law says otherwise. Thus, the Court 

finds that [Johnson] did not intentionally relinquish a known 

right or privilege when consenting to a blood-draw as she 

was not informed that the enhanced criminal penalties of 75 

Pa.C.S. §3804(c) were unconstitutional.

Trial Court Opinion, 6/30/17, at 4-5 (citations omitted). We disagree.

The issues in this case stem from the United States Supreme Court’s 

decision in Birchfield. In that case, the defendant was arrested for DUI. In

requesting a blood-draw without a warrant, the officer informed the defendant 

of North Dakota's implied consent advisory and that “test refusal in these 

circumstances is itself a crime.” The defendant then agreed to the requested 

blood-draw. Id. at 2172. In defending his case, the defendant argued that 

“his consent to the blood test was coerced by the officer's warning that 

refusing to consent would itself be a crime.” Id. The Supreme Court of the 

United States held that the Supreme Court of North Dakota erred in concluding 

that the defendant’s consent was voluntary, as the state court's conclusion 

rested “on the erroneous assumption that the State could permissibly compel 

[ ] blood ... tests” by “impos[ing] criminal penalties on the refusal to submit 

to such a test.” Id. at 2185-86.

The critical inquiry following Birchfield is whether the officer conveyed 

the threat of enhanced criminal penalties at the time of the arrest when 

seeking a warrantless blood-draw. Notably, the threat of civil penalties and 

evidentiary consequences is permissible under implied consent laws; however, 
J-S12018-18

- 6 -

a threat of added criminal sanctions is not. Previously, we stated that,

“Birchfield makes plain that the police may not threaten enhanced

punishment for refusing a blood test in order to obtain consent; whether that 

enhanced criminal punishment is (or can be) ultimately imposed is irrelevant 

to the question of whether the consent was valid.” Commonwealth v. 

Ennels, 167 A.3d 716, 724 (Pa. Super. 2017) (citations omitted). 

Where the motorist does not face such a dilemma, we have previously 

held that consent is voluntary. See Commonwealth v. Smith, 177 A.3d 915 

(Pa. Super. 2017).2 In Smith, the defendant, who was arrested for DUI, and 

the officer used a DL-26 form containing no reference to enhanced penalties 

for refusing a blood-draw. Also, the officer only informed the defendant that 

his driver’s license would be suspended, a civil penalty, if he refused. The 

defendant consented. The trial court denied suppression, because the 

defendant’s consent was voluntary. Birchfield did not apply, because the 

arresting officer never told the defendant that he would be subjected to 

greater criminal penalties if he refused the blood-draw. On appeal, we 

affirmed.

Smith is similar to this case. Officer Foley never told Johnson that she 

would be subject to enhanced criminal penalties for refusing the blood-draw. 

Also, the DL-26 form that Officer Foley asked Johnson to sign accorded with

Birchfield, because it did threaten additional criminal sanctions for refusal.

____________________________________________

2 This Court decided Commonwealth v. Smith, 177 A.3d 915 (Pa. Super. 

2017) after the decision by the suppression court in this case.
J-S12018-18

- 7 -

The form, therefore, accurately reflected the law after Birchfield. Thus, the 

coercion by the police in Birchfield, which rendered the defendant’s consent 

involuntary, did not exist here.

Moreover, it is not necessary that the police completely review changes 

in the law, from the time of a motorist’s previous arrest or DUI-related 

schooling until the motorist’s next traffic stop. Johnson’s ignorance of the 

most recent Supreme Court decisional law did not impose upon Officer Foley 

an affirmative duty to provide her with an update on criminal procedure prior 

to requesting a blood-draw. Neither our state nor the federal constitution 

compels our police officers to serve as road-side law professors.

Given the foregoing, Johnson’s personal failure to realize that the 

Supreme Court’s issuance of Birchfield struck down § 3804(c)’s enhanced 

penalties is irrelevant. She apparently believed that our Commonwealth’s 

enhanced penalties remained in full force and effect until a Pennsylvania

appellate court declared them unconstitutional or the General Assembly 

amended them to comport with Birchfield. Her misconception – and the trial 

court’s imposition of a duty upon the arresting officer to enlighten her as to 

the current state of the law – is predicated upon a fundamentally flawed view 

of our federalism. 

The Constitution of the United States “shall be the supreme Law of the 

Land; and the Judges in every State shall be bound thereby, any Thing in the 

Constitution or Laws of any State to the Contrary notwithstanding.” U.S. 

Const. Art. VI, Cl. 2. Thus, the Supreme Court of the United States’
J-S12018-18

- 8 -

constitutional pronouncements have immediate and national consequence. 

Birchfield became the “supreme Law of the Land,” which Johnson and all 

other citizens of the United States were presumed to know on the day that 

the Supreme Court announced it – April 20, 2016. Thus, Johnson’s ignorance 

of United States Constitutional Law cannot excuse her consent to Officer 

Foley’s search. On the day Birchfield became law, Johnson should have 

known that § 3804(c)’s additional criminal sanctions were without force or 

effect of law, and so the law constructively imports that knowledge to her. 

Therefore, her ignorance of her constitutional rights was no excuse, and so

her consent to the blood-draw was knowing and voluntary.

Hence, the trial court’s extension of the maxim “ignorance of the law is 

no excuse” to Johnson’s ignorance of recent Supreme Court case law was in 

error. Officer Foley had no obligation to enlighten Johnson as to the full details 

of federal constitutional law; Officer Foley only needed to tell Johnson the 

current, legal consequences of refusing to consent to the blood-draw. See 

O’Connell, supra. She did. Thus, Johnson’s consent was voluntary.

Accordingly, the trial court improperly applied the constitutional law to 

the facts herein; thus, its conclusions were erroneous. Ennels, supra. 
J-S12018-18

- 9 -

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/21/2018