J-S20030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ELLIOT ROJAS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1077 MDA 2017

Appeal from the Judgment of Sentence June 5, 2017

In the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-CR-0006689-2016

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 20, 2018

Elliot Rojas appeals from the judgment of sentence imposed June 5, 

2017, in the York County Court of Common Pleas. The trial court sentenced 

Rojas to an aggregate term of five years’ intermediate punishment, with 30

days’ incarceration and 105 days on house arrest, following his non-jury 

conviction of, inter alia, two counts of driving under the influence (DUI) of a 

controlled substance.1 On appeal, Rojas contends the trial court erred in 

denying his pretrial motion to suppress (1) evidence recovered following an 

illegal search of his truck, and (2) the results of a blood draw taken after he 

exercised his right to refuse chemical testing pursuant to the Implied Consent 

Law.

2

 For the reasons below, we affirm.

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1 75 Pa.C.S. §§ 3802(d)(1)(i), (iii).

2 75 Pa.C.S. § 1547(b)(1).
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The trial court aptly summarized the facts presented during the pretrial 

suppression hearing as follows:

The Court heard testimony from Northeast Regional Police 

Officer Corey Sh[ae]ffer. On the night of September 24, 2016, he 

was on routine patrol traveling west on Saginaw Road in East 

Manchester Township behind a green and silver Dodge pickup 

truck. Officer Sh[ae]ffer observed the truck drift to the right and 

the passenger side tires drift onto the fog line. When he ran the 

registration plate through his computer, it came back with no 

expiration date, which Sh[ae]ffer identified as a “dead tag” or an 

unregistered plate.

Officer Sh[ae]ffer then activated his emergency lights to 

initiate a traffic stop. Sh[ae]ffer estimated that after he turned 

on his emergency lights, the truck continued to travel for 300-500 

feet for around 45 seconds. While he followed the truck with his 

emergency lights on, he observed the head and torso of the driver 

lean over 2 to 3 times at a 45 degree angle towards the center 

console. 

Once the vehicle stopped, Sh[ae]ffer approached the vehicle 

and asked the driver/[Rojas], as well as a passenger to step out 

of the truck. He asked them to step out of the vehicle for his own 

safety due to the furtive movements he witnessed while following 

the truck, and his belief that there was “a high probability [Rojas]

could possibly be stashing a weapon or narcotics.” Sh[ae]ffer

patted down both [Rojas] and the passenger and found no 

weapons on their persons, and informed them he was conducting 

the pat down due to the furtive movements. 

Sh[ae]ffer then informed [Rojas] and the passenger that he 

was going to search the truck, but was going to wait for his backup 

to arrive before beginning the search. The backup then arrived 

and after briefing his backup to the situation, Sh[ae]ffer walked 

back to [Rojas] and asked him if there was anything in the vehicle 

of which he needed to be aware. Sh[ae]ffer stated that [Rojas] 

“stated something to the effect of that there was a little bud in the 

vehicle[,]” which from his training and experience the Trooper 

knew bud to mean marijuana. [Rojas] stated that the bud was 

under the driver’s seat. Sh[ae]ffer asked [Rojas] if he was 

attempting to stash the marijuana while Sh[ae]ffer was 

attempting to stop him, to which [Rojas] replied yes. [Rojas] also 
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indicated that he was on his way back from a friend’s house and 

that he had smoked marijuana there. 

Sh[ae]ffer then conducted a search of the truck and found 

a multi colored glass pipe on the rear passenger seat floor board, 

which he knew is commonly used for smoking marijuana; he also 

found a partially burnt marijuana joint inside a pack of cigarettes 

on the passenger side dashboard. Sh[ae]ffer could not find any 

marijuana in the place where [Rojas] indicated, but after 

questioning [Rojas] again, [Rojas] indicated that the marijuana 

was under the rear seat of the vehicle and not the driver’s seat as 

previously indicated. Schaeffer found a substance under the rear 

seat which was field tested, which resulted in a positive test for 

marijuana, and was sent to the State Police Lab in Harrrisburg. 

While talking with [Rojas], Sh[ae]ffer noticed the [odor] of 

intoxicating beverages coming from [Rojas], and after the search 

of the vehicle, had [Rojas] attempt a series of field sobriety tests. 

At the conclusion of the testing, Sh[ae]ffer placed [Rojas] under 

arrest for suspicion of Driving Under the Influence. After being 

placed under arrest, [Rojas] agreed to a Drug Recognition 

Evaluation (DRE) at the scene, but then changed his mind and 

would not submit to the DRE evaluation at the Police Station. 

[Rojas] was then taken to York County Central Booking and read 

the DL-26 form to consent to blood draw for chemical testing. 

[Rojas] did not consent to the blood draw. At that point, 

Sh[ae]ffer then got a search warrant for the blood draw for 

chemical testing, which was shown to [Rojas]. [Rojas] then

submitted to the blood draw per the search warrant. 

Trial Court Opinion, 11/16/2017, at 2-4 (record citations omitted).

Rojas was subsequently charged with five counts of DUI (alcohol and 

controlled substances), one count each of possession of a small amount of 

marijuana and possession of drug paraphernalia, and two summary motor 

vehicle violations.3 On December 19, 2016, Rojas filed a pretrial motion to 

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3 See 75 Pa.C.S. §§ 3802(a)(1)(i), (d)(1)(i) and (iii), (d)(2), and (d)(3), 35 

P.S. §§ 780-113(a)(31)(i) and (a)(32), and 75 Pa.C.S. §§ 1301(a) (required 
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suppress the evidence recovered during the search of his vehicle and 

subsequent blood test. The court conducted a suppression hearing on January 

30, 2017, and denied the motion on February 22, 2017. Rojas proceeded to 

a stipulated non-jury trial on June 5, 2017. The trial court found him guilty of 

two counts of DUI (§§ 3802(d)(1)(i) and (iii)), based on the presence of 

marijuana in his blood, but not guilty of the DUI counts requiring evidence of 

impairment (§§ 3802(a)(1), (d)(2), and (d)(3)). The court also found him 

guilty of the remaining offenses. That same day, Rojas was sentenced to a 

term of five years’ intermediate punishment, with 30 days’ incarceration and 

105 days’ house arrest, on one count of DUI, and concurrent terms of 30 days’ 

probation and 12 months’ probation, respectively, for his convictions of 

possession of marijuana and drug paraphernalia. This timely appeal followed.4

Rojas raises two issues on appeal, both of which challenge the trial 

court’s denial of his suppression motion. Our well-settled standard of review 

is as follows:

Our 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. Because the Commonwealth prevailed before the 

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registration and certificate of title) and § 1786(f) (required financial 

responsibility), respectively.

4 On July 12, 2017, the trial court ordered Rojas to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and granted 

Rojas’ request for bail pending appeal. Rojas complied with the court’s 

directive, and filed a concise statement on July 20, 2017. 
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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. Where the suppression court’s factual findings are 

supported by the record, we are bound by these findings and may 

reverse only if the court’s legal conclusions are erroneous. 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 our plenary review.

Moreover, appellate courts are limited to reviewing only the 

evidence presented at the suppression hearing when examining a 

ruling on a pre-trial motion to suppress.

Commonwealth v. Freeman, 150 A.3d 32, 34–35 (2016) (quotation 

omitted), appeal denied, 169 A.3d 524 (Pa. 2017).

In his first issue, Rojas contends the search of his vehicle was improper. 

See Rojas’ Brief at 15. It merits emphasis he does not challenge Officer 

Shaeffer’s authority to either (1) stop his vehicle, based on the suspected 

“dead tag,” or (2) frisk him, based on his “furtive movements.” Id. Rather, 

Rojas insists that once the frisk “turned up nothing,” Officer Shaeffer “no 

longer had any legitimate fear for his safety,” so that the subsequent search 

of Rojas’ vehicle was improper. Id. Moreover, because the search led to the 

discovery of the marijuana and paraphernalia, and it was only after the officer 

announced he would be searching the truck that Rojas admitted he had 

smoked marijuana earlier that evening, Rojas insists all of the evidence, 

including the blood testing, must be suppressed. See id. at 21.

In Commonwealth v. Morris, 644 A.2d 721 (Pa. 1994), cert. denied, 

513 U.S. 1031 (1994), the Pennsylvania Supreme Court adopted the standard 
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set forth by the United States Supreme Court in Michigan v. Long, 463 U.S. 

1032 (1983), to justify a protective search of a vehicle: 

[T]he search of the passenger compartment of an automobile, 

limited to those areas in which a weapon may be placed or hidden, 

is permissible if the police officer possesses a reasonable belief 

based on “specific and articulable facts which, taken together with 

the rational inferences from those facts, reasonably warrant” the 

officer in believing that the suspect is dangerous and the suspect 

may gain immediate control of weapons. “[T]he issue is whether 

a reasonably prudent man would be warranted in the belief that 

his safety or that of others was in danger.” 

Morris, supra, 644 A.2d at 723, quoting Long, supra, 463 U.S. at 1049-

1050.5 Furthermore, in considering cases involving vehicle stops, this Court 

has recognized that police officers face a “heightened risk of danger” during 

“roadside encounters,” while citizens possess a “lessened expectation of 

privacy” with respect to their vehicles. In re O.J., 958 A.2d 561 (Pa. Super. 

2008), appeal denied, 989 A.2d 918 (Pa. 2010).

Here, the trial court concluded “Officer Shaeffer was legally justified to 

search [Rojas’] vehicle.” Trial Court Opinion, 11/20/2017, at 5. The court 

opined:

Protective searches are justified when police have a reasonable 

belief that the suspect poses a danger. Michigan v. Long, 463 

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5 Because the officer herein conducted a protective sweep for weapons, he 

needed only demonstrate reasonable suspicion to justify his search. 

Therefore, the facts of this case do not implicate the automobile exception 

requiring probable cause set forth in the Pennsylvania Supreme Court’s 

plurality decision in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). See 

id. at 138 (adopting federal automobile exception to warrant requirement and 

permitting officers to search a vehicle when there is probable cause to do so; 

“no exigency beyond the inherent mobility of a motor vehicle is required”).
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U.S. 1032 (1983). The search of a passenger compartment of an 

automobile is permissible if the officer possess[es] a reasonable 

belief based on specific and articulable facts which, taken together 

with the rational inferences from those facts reasonably warrant 

the officer’s belief that the suspect is dangerous and may gain 

immediate control of weapons. Id. at 1049. Based upon the facts 

in the case at hand, Officer Sh[ae]ffer reasonably believed that 

[Rojas] was potentially trying to conceal or retrieve a weapon. 

This was supported by the fact [Rojas] did not immediately pull 

over once Officer Sh[ae]ffer engaged his emergency lights, 

instead traveling another 500 feet before stopping his vehicle. 

Officer Sh[ae]ffer also witnessed [Rojas] making furtive 

movements towards the area of the center console. Officer 

Sha[e]ffer made a rational inference based upon his training and 

experience that [Rojas] was attempting to reach for or conceal a 

weapon. This inference would establish a reasonable belief that 

[Rojas] was dangerous and would justify a protective search.

Id. at 5-6. As an independent basis to support the search, the court noted 

Rojas “admitted prior to the search being conducted that he was engaged in 

illegal activity by possessing illegal drugs, namely a bud of marijuana.” Id.

at 6. Noting it is “not uncommon for suspects to admit to lesser offenses in 

the hope of diverting an officer from more serious misconduct[,]” the trial 

court explained “it would have been extremely hazardous for the officer to 

permit [Rojas] and his passenger to return to [Rojas’] vehicle, by assuming 

[Rojas] was being completely truthful, without conducting a sweep for 

weapons upon [Rojas] volunteering he possessed illegal drugs.” Id. at 6-7. 

Accordingly, the court determined the search was lawful. 

Preliminarily, we agree with Rojas’ contention that the trial court erred 

when it considered Rojas’ admission he had marijuana in the car as support 

for the search. When Rojas made the statement, Officer Shaeffer had already 

announced his intention to search the vehicle, and had called for backup. See
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N.T., 1/30/2017, at 28. Therefore, Rojas’ admission could not have formed

part of the officer’s reasonable suspicion to search the vehicle. 

Nevertheless, the trial court determined Officer Shaeffer had reasonable 

suspicion to search the vehicle independent of Rojas’ admission. Rojas insists, 

however, the court’s reasoning is flawed because “any safety concerns” Officer 

Shaeffer had were “dispelled” prior to his search of the truck, when the 

officer’s frisk of both Rojas and his passenger revealed no weapons. Rojas’ 

Brief at 17. Furthermore, Rojas emphasizes he explained his furtive 

movements to the officer, “telling Shaeffer he had been reaching for his 

driver’s license[,]” which was in his hand during the frisk. Id. at 19. Under 

these factual circumstances, Rojas argues the trial court was “mistaken” when 

it determined “it would have been ‘extremely hazardous’ to conclude the traffic 

stop without searching the truck.” Id. In support, Rojas relies primarily upon 

United States v. Austin, 269 F.Supp.2d 629 (E.D. Pa. 2003), and 

Commonwealth v. Graham, 721 A.2d 1075 (Pa. 1998). We find Rojas’ 

reliance on these decisions to be misplaced.

First, we note Austin is a federal district court decision, and therefore, 

not binding precedent. See Commonwealth v. Lambert, 765 A.2d 306, 

315, n.4 (Pa. Super. 2000) (“Absent a United States Supreme Court 

pronouncement, decisions of federal courts are not binding on state courts, 

even when a federal question is involved.”). Moreover, the facts of that case

are distinguishable. In Austin, police officers stopped the defendant’s vehicle 

for running a red light. The defendant was cooperative with police, but while 
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he was exiting the vehicle, he “reach[ed] down under the driver’s seat with 

his right hand.” Austin, supra, 269 F.Supp.2d at 631. Concerned for his 

safety, one of the officers “grabbed” the defendant’s arm, and “observed that 

[the defendant] had reached for his cell phone.” Id. At that point, the officers 

removed the defendant from his vehicle, frisked him, and placed him in the 

police car. Although the defendant was nervous during this encounter, he did 

not resist, nor did the officers’ frisk of the defendant reveal any weapons or 

contraband. The officers then proceeded to search the car, and recovered a 

firearm and ammunition. See id. 

In granting the defendant’s motion to suppress, the federal district court 

concluded:

[The police officer] was justified in reaching into the car and 

grabbing the defendant’s arm to dispel his suspicions that [the 

defendant] had reached for a weapon. However, when [the 

officer] realized [the defendant] had reached for a cell phone, not 

a weapon, there was no reason to believe that he was dealing with 

an armed or dangerous individual. The officers’ actions thereafter 

were understandably based on the continued rush of adrenalin, 

but there was no basis for reasonable suspicion that the defendant 

had a weapon on his person or in his vehicle. Defendant was also 

understandably nervous after the encounter over the cell phone, 

but he was not violent.

According to the government, the defendant’s nervous 

behavior and the defendant’s efforts to reach beneath his seat for 

a cell phone created reasonable suspicion. However, these 

factors, independently as well as combined, do not amount to 

reasonable suspicion. 

Id. at 634.

Unlike the facts in Austin, here, Officer Shaeffer did not know what 

Rojas was reaching for or hiding when he bent over two to three times before 
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stopping his car. Although Rojas contends he was reaching for his license, 

and had his license in his hand after the stop, Officer Shaeffer was not obliged 

to believe him. Indeed, the officer explained that when a suspect reaches for 

his license before a stop “it’s just a simple arm movement.” N.T., 1/30/2017, 

at 41. However, in this case, the officer’s suspicion was aroused because of 

Rojas’ “exaggerated shifting of [his] body.” Id. Accordingly, Officer 

Shaeffer’s reasonable suspicion was supported by the fact that (1) Rojas failed 

to immediately pull over when the officer activated his lights, and continued 

to drive 300-500 feet, making two turns;

6 and (2) during that time Rojas made 

“multiple furtive movements,” bending at a “45 degree angle, if not further, 

over towards the top of the center console.” Id. at 23-24.

Rojas’ reliance on Graham is similarly misplaced. First, Graham did 

not involve a motor vehicle stop. Rather, the officer was patrolling a high 

crime area when he observed the defendant and two other males, one of 

whom had an outstanding warrant, on the porch of a day care center. See 

Graham, 721 A.2d at 1076. As the men began to walk away, the officer 

instructed them to stop, and told the defendant’s companion that he had a 

warrant for his arrest. At that time, the officer noticed a bulge in the 

defendant’s front pocket. The officer patted down the defendant, “[i]n order 

to allay his concerns for safety,” and felt what he believed to be money, which 

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6 Officer Shaeffer testified: “From the time that I activated my emergency 

lights on Saginaw Road to, say, Sherman Street where the vehicle stopped at 

that stop sign, there were multiple areas in which that vehicle could have 

pulled over but didn’t.” N.T., 1/30/2017, at 24.
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the defendant confirmed. Id. However, the officer then proceeded to pat 

down the defendant’s back pocket and felt a lifesavers container. When he 

shined a flashlight in the pocket, the officer observed that the container held 

cocaine. See id. at 1076-1077. The trial court denied the defendant’s motion 

to suppress. 

On appeal, the Pennsylvania Supreme Court found the officer’s initial 

pat-down of the defendant’s front pocket “immediately relieved his fear that 

[the defendant] was not carrying a weapon.” Id. at 1078. Further, the 

Graham Court explained that before shining his flashlight in the defendant’s 

back pocket, the officer’s pat-down revealed the defendant was “not carrying 

a weapon.” Id. at 1079. Therefore, the Court held “any continued search 

exceeded the scope authorized under Terry[ v. Ohio, 392 U.S. 1 (1968)].” 

Again, the facts presented herein are clearly distinguishable. Officer Shaeffer 

observed Rojas make furtive movements in his car after refusing to 

immediately pull over. Accordingly, although his frisk of Rojas revealed no 

weapons on his person, it did not alleviate his concern that Rojas may have a 

weapon in his vehicle. 

Rather, we find this Court’s decision in Commonwealth v. Buchert, 

68 A.3d 911 (Pa. Super. 2013), appeal denied, 83 A.3d 413 (Pa. 2014),

instructive. In that case, two officers on patrol duty after midnight pulled over 

a vehicle for having a broken tail light. When the officers approached the 

vehicle, they observed the defendant, who was the front seat passenger, 

“bending forward and appearing to reach under the seat.” Id. at 912. The 
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officers directed the defendant and the driver to stop moving, which they did. 

However, the officers noticed the defendant appeared nervous. See id. Both 

men were instructed to exit the vehicle, and a frisk of the defendant revealed 

no weapons or contraband. Thereafter, one of the officers “performed a 

search of the defendant’s ‘immediate area of control’” and observed “the 

handle of a gun as he bent forward to look under the passenger seat.” Id. 

The trial court subsequently granted the defendant’s motion to suppress, 

concluding the officers did not have probable cause to search the passenger 

compartment of the vehicle. See id. at 913. On appeal, a panel of this Court 

reversed.

The panel first agreed with the Commonwealth that the trial court 

applied the incorrect standard in determining whether the search of the vehicle 

was lawful, since the officers needed only “reasonable suspicion to conduct a 

Terry protective weapons search,” not probable cause Id. at 916. Moreover, 

the panel concluded that, under the totality of the circumstances, the police 

officers possessed the requisite reasonable suspicion to justify the protective 

search of the vehicle. The panel opined:

The combination of [the defendant’s] furtive movement of leaning 

forward and appearing to conceal something under his seat, along 

with his extreme nervousness and the night time stop, was 

sufficient to warrant a reasonable police officer to believe that his 

safety was in danger and that [the defendant] might gain 

immediate control of a weapon. 

Id. at 916-917.
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The facts in this case are similar. Here, the stop occurred at night in a 

rural area, but unlike in Buchert, Officer Shaeffer was alone. Rojas did not 

immediately pull over when the officer activated his emergency lights, but 

rather continued to drive for 300-500 feet, making two turns. Most 

significantly, Officer Shaeffer observed Rojas make “multiple furtive 

movements in the area of the center console” during the period when he 

refused to stop. N.T., 1/30/2017, at 23. Accordingly, we agree with the trial 

court’s conclusion that Officer Shaeffer possessed the requisite reasonable 

suspicion to conduct a protective search of the area in Rojas’ vehicle where 

he observed Rojas make furtive movements. Therefore, the court properly 

denied Rojas’ motion to suppress the evidence recovered from the truck. 

In his second claim, Rojas argues, alternatively, the results of his blood 

draw should have been suppressed because he refused to submit to chemical 

testing pursuant to the Implied Consent Law. See Rojas’ Brief at 22.

Pennsylvania’s Implied Consent Law, codified at 75 Pa.C.S. § 1547, 

provides, in relevant part: 

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).
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75 Pa.C.S. § 1547(a) (emphasis supplied). However, the statute also gives 

the driver the right to refuse testing, albeit subjecting him to a mandatory 

license suspension of at least 12 months. See 75 Pa.C.S. § 1547(b).

In Commonwealth v. Miller, 996 A.2d 508 (Pa. Super. 2010) (en 

banc), appeal denied, 20 A.3d 485 (Pa. 2011), an en banc panel of this Court 

explained:

[T]he purpose underlying [implied consent] is to enable the police 

to obtain evidence of intoxication or drug use to be utilized in 

criminal proceedings. It is not to hinder law enforcement officers 

in performing their duties under sections 3755 [relating to blood 

draws for medical purposes] and 1547 when they have probable 

cause.

Id. at 513 (internal punctuation and quotations omitted).

Rojas insists the plain language of the statute compels suppression of 

his blood test results because he refused to submit to testing. See Rojas’ 

Brief at 22. He emphasizes the statute clearly 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 testing shall not be conducted[.]” 75 

Pa.C.S. § 1547(b)(1) (emphasis supplied). Rojas contends the language is 

unambiguous, and the statute does not provide an exception for the police to 

obtain a search warrant. See Rojas’ Brief at 23-24. Although he 

acknowledges Section 1547 was amended in July of 2017 “to make it possible 

to conduct the test Rojas challenges here,”7 he argues the fact the amendment 

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7 The 2017 amendment added subsection (b.3), which provides:
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was not effective for six months after its enactment signifies it was a 

substantive change in the law, and not a mere “‘clarifying’ amendment.” Id.

at 25. Furthermore, Rojas maintains that because the statute is penal in 

nature, it must be construed strictly and in his favor. See id. at 26. Lastly, 

he insists Pennsylvania case law has “repeatedly found ... that the Implied 

Consent statute includes a right to refuse testing.” Id. at 27.

The trial court disposed of this claim as follows:

If it was the intent of the legislature that once an actor 

refuses to submit to chemical testing that no testing shall occur, 

even if a valid search warrant is obtained, then it would state that 

expressly in the statute. The intent of the Implied Consent Law is 

to encourage those arrested for Driving Under the Influence to 

cooperate with police to provide a blood draw. “The purpose of 

75 Pa.C.S. § 1547 and prior enactments has been to facilitate the 

acquisition of chemical analyses and to permit their utilization in 

legal proceedings.” Commonwealth v. Tylwalk, 258 Pa. Super. 

506, 511, 393 A.2d 473, 475 (1978). To read into the statute a 

ban on obtaining a search warrant once a suspect refuses a blood 

draw is not necessary to the construction of the statute, and it 

would conflict with the obvious purpose of the statute in 

facilitating chemical testing for DUI offenses. This is especially 

true in light of the fact that obtaining consent is in fact an 

exception to the requirement of obtaining a search warrant.

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(b.3) Limitation.--Nothing in this section shall be construed as 

limiting the ability of law enforcement to obtain chemical testing 

pursuant to a valid search warrant, court order or any other basis 

permissible by the Constitution of the United States and the 

Constitution of Pennsylvania.

75 Pa.C.S. § 1547(b.3).
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Trial Court Opinion, 11/20/2017, at 9.

While we agree Rojas correctly cites the rules of statutory construction 

with regard to the plain meaning of words in a statute,8 a panel of this Court 

recently emphasized, “we read words in accordance with their ordinary 

meaning, taking into account their overall context and avoiding unreasonable 

or absurd constructions.” Commonwealth v. Null, ___ A.3d ___, ___, 2018 

PA Super 85, *6 (Pa. Super. 2018). See also Commonwealth v. Lewis, 

180 A.3d 786, 790-791 (Pa. Super. 2018) (holding immunity granted to 

reporters and victims under the Drug Overdose Response statute is available 

to a self-reporter, despite fact the language of the statute “implicitly 

condition[s] the grant of immunity on the presence of two parties,” the 

reporter and “another person” in need of medical assistance; the Legislature 

could not have “intended to weigh the life of a self-reporter below the life of a 

drug overdose victim who has a conscientious associate.”). 

Indeed, the purpose of the Implied Consent Law is to assist police 

officers in their ability to obtain evidence of intoxication for criminal 

proceedings. See Miller, supra. Pursuant to the statute’s explicit terms, 

when a defendant refuses chemical testing, the officer cannot proceed with a 

blood draw under the Implied Consent Law. However, at the time Rojas was 

arrested, the statute did not address the officer’s ability to apply for a search 

warrant in order to obtain chemical testing. As Rojas points out in his brief, 

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8 See Rojas’ Brief at 22-24.
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Section 1547 was amended in July of 2017 to address this very situation. See

75 Pa.C.S. § 1547(b.3). Contrary to his contention, however, we find the 

amendment clarified the law, rather than constituted a substantive change.9

Voluntary consent is a well-recognized exception to the warrant 

requirement. Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000). 

With regard to Section 1547, our Supreme Court has recently opined: “If 

neither voluntary consent nor some other valid exception to the warrant 

requirement is established, then a chemical test may be conducted only 

pursuant to a search warrant.” Commonwealth v. Myers, 164 A.3d 1162, 

1181 (Pa. 2017).

10

 However, Rojas insists police officers have a choice to 

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9 The fact that the amendment was not immediately effective is a red herring. 

The amendment not only added subsection (b.3), but also added subsection 

(b.2) requiring the payment of restoration fees, and amended eight other 

sections of the Motor Vehicle Code dealing with drivers’ licenses, suspensions 

or revocations.

 

10 We note Myers, supra, was a plurality decision. It was written by Justice 

Wecht, and joined in full by Justices Donohue and Dougherty. Justice Saylor 

wrote a concurring opinion, that was joined in full by Justice Baer and in part 

by Justice Donohue. Justice Todd also wrote a concurring opinion, and Justice 

Mundy wrote a dissent. However, the differing opinions focused on the 

particular facts of the case, specifically, that the defendant was unconscious 

when his blood was drawn. The plurality opinion determined, inter alia, that 

the consent element in the Implied Consent Law must be “voluntary.” Myers, 

supra, 164 A.3d at 1180-1181. Justice Saylor, however, found the blood 

draw was unconstitutional under Birchfield v. North Dakota, 136 S.Ct. 2160 

(U.S. 2016), quoting the language in that case which stated the police “may 

apply for a warrant” when they desire to obtain a blood test from an 

unconscious defendant. Myers, supra, 164 A.3d at 1183. Justice Todd 

concluded the defendant’s statutory right to refuse blood testing was violated 

and would not have addressed the constitutional issue. See id. at 1184. 

Justice Mundy, however, found that under the plain language of the statute, 
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proceed either under the Implied Consent Law, or by obtaining a warrant. 

Rojas’ Reply Brief at 8. He states: “[W]hen officers [] proceed under the 

Implied Consent statute, they must honor all the statute’s dictates – not just 

those that are convenient to expeditious law enforcement.” Id. 

We find Rojas’ interpretation of the statute would lead to an absurd

result. As noted supra, the purpose of the Implied Consent Law is to assist 

police officers in obtaining evidence for criminal proceedings. See Miller, 

supra. There is no support for Rojas’ contention that an officer must decide, 

at the onset of his investigation, whether he will proceed under the Implied 

Consent Law, or pursuant to a warrant. Both the Fourth Amendment of the 

United States Constitution, and Article I, Section 8 of the Pennsylvania 

Constitution protect citizens from “unreasonable searches and seizures”

conducted without a warrant and without probable cause. U.S. Const. Amend 

IV; Pa. Const. Art. 1 § 8. Here, there is no dispute Officer Shaeffer applied 

for and obtained a warrant authorizing Rojas’ blood draw. Accordingly, Rojas’ 

constitutional rights were protected, and he is entitled to no relief.

Judgment of sentence affirmed.

____________________________________________

the defendant did not revoke his implied consent, and because there was “no 

dispute that probable cause for DUI existed,” the warrantless blood draw was 

permissible. Id. at 1186. None of the differing opinions support Rojas’ 

contention that an officer cannot obtain a warrant after a defendant revokes 

his implied consent.

 
J-S20030-18

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/20/2018