IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian Anthony Turner, :

Appellant :

:

v. : No. 1206 C.D. 2017 : Submitted: January 26, 2018 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: May 18, 2018

Brian Anthony Turne r (Licensee) appeals an order of the Court of
Common Pleas of Northampton County (trial court) dismissing his appeal of a one

year suspen sion of his operating privilege pursuant to Section 1547(b)(1)(i) of the

Vehicle Code, 1 commonly known as the Implied C onsent Law, for refusing a blood

test. Because Licensee was not warned of the enhanced criminal penalties for
refusing a blood test, Licensee argues that his license suspension must be set aside

.

1 It provides: (1) If any person placed under arrest for a violation of section 3802 [

, 75 Pa. C.S. §3802

, ] is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows: (i ) Except as set forth in subparagraph (ii) [ ( setting forth the circumst ances leading to an 18

- mo nth suspension ) ], for a period of 12 months.

75 Pa. C.S. § 1547(b)(1)(i).2 On February 21, 2017, the Pennsylvania Department of Trans portation,

Bureau of Driv er Licensin g (PennDOT ), notified Licens ee that his operating
privilege was suspended for one year, for refusing to submit to a blood test. Licensee
appealed

, and a hearing was held before the trial court.

Pennsylvania State Trooper Michael Hodgskin was the sole witness at
the hearing. He testified that on February 5, 2017, he observed a vehicle stopped on

the shoulder of an interstate highway with its motor running and headlights on.
Licensee was asleep in the driver’s seat . Once awakened, Licensee was asked to
submit to several field sobriety tests, which he attempted but could not co mplete

. Licensee admitted to consuming alcohol, but he refused to take a portable breath
test. He was placed under arrest for suspicion of driving under the influence of
alcohol (DUI) pursuant to Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802, and
transported to a hospital for a blood test.

Trooper Hodg s kin testified that, at the hospital, he warned Licensee of
the consequences of refusing the blood test pursuant to the Implied Consent Law.

Licensee was not informed that a refusal of a blood test would subject him to
enhanced criminal penalties. Trooper Hodg s kin exp lained to the trial court that there
are now two separate DL

- 26 forms . One form provid es the Implied Consent Law
warnings for refusing a breath test

, and the other provides the Implied Consent Law
warnings for refusing a blood test. The blood test form o mits any mention of
enhanced criminal penalties for a refusal , which is the warning Trooper Hodg s kin
gave to Licensee at the hospital. Licensee refused to submit to the blood test.

At the conclusion of the evidentiary hearing, Licensee presented legal

a rgument. He asserted that the suspension of his operating privilege was invalid

because he did not receive a warning that conform ed to the mandate of former3

Section 1547 (b) (2)(ii) of the Vehicle Code , which was in effect at the time of

Licensee’s arrest

. It stated as follows:

(2) It shall be the duty of the police officer to inform the person that:

***

(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the
pen alties provided in section 3804(c) (relating to penalties).

Former 75 Pa. C.S. §1547 (b) (2) (ii) . Former Section 3804(c) of the Vehicle Code

, also in effect at the time of Licensee’s arrest

, provided that an operator convicted of
DUI who “refused testing of blood or breath” would be sentenced as if they had
tested at the “highest blood alcohol” rate, i.e. , an alcohol concentration of 0.16% or
higher. Former 75 Pa. C.S. §3804(c).

I n Birchfield v. North Dakota , __ U.S. __, 136 S. Ct. 2160 (2016), the
United States Supreme Court held that criminal penalties cannot be imposed up on a

motorist who refuses a blood test without a search warrant

. In response to
Birchfield

, the Pennsylvania Superior Court held that absent a warrant “ or exigent

circumstan ces justifying a search, a defendant who refuses to provide a blood sample
when requested by police is not subject to the enhanced penalties provided [in the
Vehicle Code].” Commonwealth v. Giron , 155 A.3d 635, 640 (Pa. Super. 2017).

Thereafter, the Depa rtment created two Implied Consent Law form s: one for breath

tests and another for blood tests. As explained by Trooper Hodg s kin, t he new form
for blood tests no long er states that a re fusal will subject a licensee to enhanced
criminal penalties

.4 At Li censee’s hearing, PennDOT explained the Birchfield holding and
its revised consent forms. It acknowledged that at the time of Licensee’s arrest

, former Section 1547(b)(2)(ii) of the Vehicle Code was in effect . However, to give
this warning was illogical because Birchfield prohibited enhanced criminal penalties
for refusing a blood test, where a search warrant is not first obtained

. 2

The trial court rejected Licensee’s argument that Trooper Hodgskin

was obligated to warn him of the enhanced criminal pen alties even though they had

been rendered constitutionally invalid by Birchfield

. The trial cou rt concluded that

the mandate in former Section 1547(b)(2)(ii) of the Vehicle Code that a licensee be
warned of enhanced criminal penalties was severable from the remainder of the

Vehicle Code. The trial court denied Licensee’s appeal of his license suspension

.

Licensee appealed to this Court

, 3 and he raises two issues. First, he

contends that failure t o provide the enhanced criminal penalties warning violated
former Section 1547(b)(2)(ii) of the Vehicle Code , rendering his suspension invalid.

2 Indeed, the General Assembly amended Section 1547(b)(2)(ii) by the act of July 20, 2017, P.L.
333 (effective immediately )

, to apply solely to breath testin g: (2) It shall be the duty of the police officer to inform the person that:

*** (ii) If the person refuses to submit to chemical breath testing, upon conviction or plea for violating 3802(a)(1), the person will be subject to the penalties provided in se ction 3804(c) (relating to penalties). 75 Pa. C.S. §1547(b)(2)(ii). The General Assembly also amended Section 75 Pa. C.S. § 3804(c)

, by the act of July 20, 2017, P.L. 333 (effective immediately)

, to apply the highest blood alcohol rate to individuals refus ing testing of breath “or testing of blood pursuant to a valid search warrant[.]” 75 Pa. C.S. §3804 (c)

. 3 Our review determine s whether the factual findings of the trial court are supported by competent evidence and whether the trial court committed an er ror of law or abused its discretion. Banner v. Department of Transportation, Bureau of Driver Licensing , 737 A.2d 1203, 1205 (Pa. 1999). Our review over questions of law is plenary . Deliman v. Department of Transportation, Bureau of Driver Licensing , 718 A.2d 388, 389 n.1 (Pa. Cmwlth. 1998).5

Second, he contends that PennDOT is bound by former Section 1547(b)(2)(ii) of the

Vehicle Code , which is not severable from the remainder of the Vehicle Code

.

Licensee’s two legal claims raised are identical to those raised and
decided by this Court in Garlick v. Department of T ransportation, Bureau of Driver

Licensing , 176 A.3d 1030 (Pa. Cmwlth. 2018) ( en banc ). Therein, we held that
Birchfield rendered the enhanced criminal penalties in former Section 1547(b)(2)(ii)

of the Vehicle Code as applied to blood testing unenforceable and that former
Section 1547(b)(2)(ii) of the Vehicle Code is severable from the remainder of the

statute. We are bound by the holdi ng in Garlick

. Accordingly, we hold that the trial
court did not err in denying Licensee’s appeal.

Accordingly, the order of the trial court is affirmed.

_____________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian Anthony Turner, :

Appellant :

:

v. : No. 1206 C.D. 2017

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

O R D E R

AND NOW, this 18 th day of May , 2018, the order of the Court of
Common Pleas of Northampton County, dated July 27, 2017, is AFFIRMED.

_____________________________________ MARY HANNAH LEAVITT, President Judge