IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Wayne Patane, :

Appellant :

 :

v. : No. 973 C.D. 2017

 : Argued: June 6, 2018

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: August 9, 2018

Robert Wayne Patane (Licensee) appeals from a June 27, 2017 Order of the 

Court of Common Pleas of Delaware County (common pleas). By order dated 

March 28, 2017, common pleas denied Licensee’s appeal from a one-year 

suspension of his operating privilege imposed by the Commonwealth of 

Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT), 

under Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i), 

commonly referred to as the Implied Consent Law.1 Subsequently, common pleas 

 

1 Section 1547(b)(1)(i) reads, in pertinent part, as follows:
2

granted Licensee’s Motion for Reconsideration of the March 28, 2017 Order to the 

extent of holding a hearing thereon, and then effectively confirmed its March 28, 

2017 Order in its June 27, 2017 Order.2 On appeal, Licensee argues that he did not 

knowingly and consciously refuse a chemical test of his blood and was, therefore,

deprived of procedural due process of law. He claims this is because the 

Pennsylvania State Police Trooper who stopped him provided him with “partially 

incorrect” information, telling him that he would be subject to enhanced criminal

penalties if he refused the blood test and was convicted of driving under the influence 

of alcohol (DUI). (Licensee’s Brief (Br.) at 8.) It was shortly after Licensee’s arrest

that the United States Supreme Court decided Birchfield v. North Dakota, 579 U.S. 

__, 136 S. Ct. 2160 (2016), which held that a state may not impose criminal penalties 

on a motorist for refusing to submit to a chemical test of his blood requested pursuant 

to an implied consent law. Licensee argues that, had he been correctly informed that 

only his operating privilege would be suspended if he refused a chemical test of his 

blood, consistent with Birchfield, then he would have submitted to the test. We 

 

(1) If any person placed under arrest for a violation of section 3802 [relating to 

driving under the influence of alcohol or controlled substance] 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), for a period of 12 months.

75 Pa. C.S. § 1547(b)(1)(i).

2 Licensee filed a notice of appeal from the March 28, 2017 Order, but once common pleas 

granted reconsideration by its April 20, 2017 Order, we struck that notice of appeal. Thereafter, 

following a hearing, common pleas denied Licensee’s Motion for Reconsideration. Ordinarily, 

the denial of a motion for reconsideration is not appealable. Thorn v. Newman, 538 A.2d 105, 108 

(Pa. Cmwlth. 1988). However, here, common pleas in effect granted reconsideration and then 

confirmed its March 28, 2017 Order denying Licensee’s appeal of the suspension of his operating 

privilege, which is appealable.
3

conclude that Licensee knowingly and consciously refused chemical testing, and he 

was not deprived of procedural due process. The Pennsylvania State Police Trooper 

provided Licensee with a warning that was accurate at the time it was given. While 

the portion of the warning about enhanced criminal penalties was retroactively 

rendered inaccurate following Birchfield, Licensee’s refusal at the time was still 

knowing and conscious and he was not deprived of procedural due process by the 

suspension of his operating privilege. This is because Licensee knew, as the 

Pennsylvania State Police Trooper had conveyed it to him, that if he refused 

chemical testing he would be in violation of the law and he would be penalized for 

that violation with the suspension of his operating privilege. Therefore, common 

pleas properly reinstated the suspension of Licensee’s operating privilege.

I. Factual and Procedural Background

DOT informed Licensee that his operating privilege was suspended for one 

year as a result of his failure to submit to chemical testing in violation of Section 

1547(b)(1)(i) of the Vehicle Code. On May 19, 2016, Licensee appealed to common 

pleas pursuant to Section 1550(a) of the Vehicle Code, 75 Pa. C.S. § 1550(a).3

At the hearing, testimony was presented that on April 13, 2016, at 8:44 p.m., 

Pennsylvania State Police Trooper Erjon Mollaj (Trooper) was traveling southbound 

along Route 476 in Radnor Township, Delaware County, when he observed 

Licensee’s vehicle traveling at a high rate of speed. During the ensuing traffic stop, 

while Trooper questioned Licensee, Trooper detected an odor of alcohol emanating 

from Licensee’s breath and the inside of Licensee’s vehicle. Trooper testified that 

 

3 Section 1550(a) provides that “[a]ny person . . . whose operating privilege has been . . . 

suspended . . . by [DOT] shall have the right to appeal to the court vested with jurisdiction of such 

appeals . . . .” 75 Pa. C.S. § 1550(a).
4

Licensee admitted to him that “he had a few drinks.” (Reproduced Record (R.R.) at 

35a.) Licensee agreed, at Trooper’s request, to submit to a series of field sobriety 

tests, which he did not successfully complete. Trooper placed Licensee under arrest 

for DUI and transported him to a hospital for chemical testing of his blood. At the 

hospital, Trooper read verbatim to Licensee DOT Form DL-26, which stated, in

relevant part, as follows:

1. You are under arrest for driving under the influence of alcohol or a 

controlled substance in violation of Section 3802 of the Vehicle 

Code.

2. I am requesting that you submit to a chemical test of blood.[4]

3. If you refuse to submit to the chemical test, your operating 

privilege will be suspended for at least 12 months . . . . In addition, 

if you refuse to submit to the chemical test, and you are convicted

of violating Section 3802(a)(1) (relating to impaired driving) of the 

Vehicle Code, then, because of your refusal, you will be subject to 

more severe penalties set forth in Section 3804(c) (relating to 

penalties) of the Vehicle Code. These are the same penalties that 

would be imposed if you were convicted of driving with the highest 

rate of alcohol, which include a minimum of 72 consecutive hours 

in jail and a minimum fine of $1,000.00, up to a maximum of five 

years in jail and a maximum fine of $10,000.

* * * *

(Id. at 90a (emphasis added).) Trooper explained the warnings to Licensee twice. 

Licensee signed the form, acknowledging that he understood the warnings, but 

stated, “I’m not taking the test.” (Id. at 39a (emphasis added).)

Licensee testified that when Trooper warned him that if he refused chemical 

testing he could be imprisoned for five years and fined $10,000, Licensee “froze, 

 

4 Trooper wrote the word “blood” into a blank space.
5

completely.” (Id. at 67a.) Licensee further testified that he had “never had anything 

criminal in [his] life before this” and he “was shell-shocked.” (Id.) Licensee 

testified that if he had known that there were only civil penalties for refusing 

chemical testing, and not also criminal penalties if he was subsequently convicted, 

Licensee would have submitted to the blood test.

At the conclusion of the evidence and in a brief, Licensee argued that 

following his arrest, the United States Supreme Court issued Birchfield, which 

precludes a state from imposing a criminal penalty for refusing to submit to a blood 

test required under an implied consent law. Thus, Licensee continued, when Trooper 

warned Licensee that he would be subject to criminal penalties if he refused a blood 

test, Licensee was provided with incorrect information. (R.R. at 76a; Record (R.)

Item 7, Amended Memorandum of Law at 2.) Licensee noted that just days after the 

Birchfield decision, DOT amended Form DL-26 and created DOT Form DL-26B, 

which removed any mention of enhanced criminal penalties for refusing a blood 

test.5 Since Licensee was informed that he was facing a criminal penalty, he believed 

that he should neither speak nor consent to a blood test. Licensee contended that his

confusion was directly attributable to the incorrect information Trooper provided 

him. Had Licensee been correctly informed that if he refused the blood test, he was 

facing only a civil penalty of the loss of his operating privilege, Licensee, as he 

testified, would have submitted to the blood test.

Common pleas denied Licensee’s appeal and reinstated DOT’s suspension of 

Licensee’s operating privilege. In its decision, common pleas rejected Licensee’s 

reliance on Birchfield, concluding that it “does not apply to civil license suspension 

proceedings.” (Common Pleas Opinion (Op.) ¶ 25.)

 

5 At the hearing, DOT Form DL-26B was entered into evidence. (R.R. at 59a, 85a.)
6

Licensee then filed a Motion for Reconsideration, arguing that common pleas 

“did not address the central question” Licensee raised, “which was that [Licensee] 

was denied due process because [Trooper] provided [Licensee] with incorrect 

information[.]” (R. Item 7, Motion for Reconsideration at 1-2.)

Common pleas granted the Motion for Reconsideration to the extent of 

holding a hearing thereon, but then denied the Motion for Reconsideration, which, 

in this instance, operated as confirmation of common pleas’ prior Order denying 

Licensee’s appeal. Following Licensee’s filing of a Concise Statement of Errors

Complained of on Appeal, common pleas issued its opinion pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a). Common 

pleas noted that in Birchfield, the Court “did not question the constitutionality of the 

implied consent laws that impose only civil penalties.” (Common Pleas 1925(a) Op.

(1925(a) Op.) at 9, Aug. 16, 2017.) Further, citing Boseman v. Department of 

Transportation, Bureau of Driver Licensing, 157 A.3d 10, 20 (Pa. Cmwlth.), petition 

for allowance of appeal denied, 170 A.3d 996 (Pa. 2017), common pleas noted that 

this Court “emphasized that a license suspension stemming from a refusal to submit 

to chemical testing [of blood] is a separate administrative proceeding from a criminal 

DUI proceeding arising out of the same incident.” (1925(a) Op. at 9.) Common 

pleas concluded that Birchfield and Boseman controlled. (Id. at 12.) Based on 

Birchfield and Boseman, common pleas held that Licensee was not denied due 

process. (Id. at 13.) Licensee was not denied due process because: Licensee was 

advised of the civil penalty of the suspension of his operating privilege for refusing 

a blood test; Licensee knowingly and voluntarily decided not to submit to a blood 

test; and the civil penalty occurs in the context of a “separate administrative 

proceeding from a criminal DUI proceeding arising out of the same incident.” (Id.
7

at 12-13 (emphasis in original) (citing Boseman, 157 A.3d at 20).) Accordingly, 

“the reading of the enhanced criminal penalties did not deny [Licensee] procedural 

due process in the separate civil administrative proceeding.” (Id. at 13.)

II. Discussion

A. Knowing and Conscious Choice/Procedural Due Process

On appeal,6 Licensee argues that he was deprived of his right to procedural 

due process of law guaranteed under the United States and Pennsylvania 

Constitutions7 and the ability to make a knowing and conscious choice as to whether 

to submit to or to refuse chemical testing of his blood because his decision was based 

on information that was “partially incorrect.” (Licensee’s Br. at 8.) Licensee argues, 

based on Birchfield, that Trooper misinformed Licensee that he would be subject to 

criminal penalties if he refused a chemical test of his blood and was convicted of 

DUI. This misinformation alone, Licensee argues, is enough to overturn the 

suspension of his operating privilege, regardless of whether he relied on it. (Id. at 

18-19 (citing Peppelman v. Commonwealth, 403 A.2d 1041 (Pa. Cmwlth. 1979)).) 

But, in this case, Licensee argues that he did rely on this misinformation in deciding 

not to submit to a chemical test of his blood. Licensee notes he testified that, had he 

known he was facing only a civil penalty of the suspension of his operating privilege

 

6

“Our standard of review is limited to determining whether common pleas committed an 

error of law, whether common pleas abused its discretion, or whether the findings of fact are 

supported by substantial evidence.” Garlick v. Dep’t of Transp., Bureau of Driver Licensing, 176 

A.3d 1030, 1035 n.6 (Pa. Cmwlth. 2018) (en banc).

7 The Due Process Clause of the Fourteenth Amendment to the United States Constitution 

provides, in relevant part, that no State shall “deprive any person of life, liberty, or property, 

without due process of law.” U.S. Const. amend. XIV, § 1. Due process under the Pennsylvania 

Constitution emanates from a number of provisions, including article I, section 11, which provides, 

in pertinent part, that “[a]ll courts shall be open; and every man for an injury done him in his lands, 

goods, person or reputation shall have remedy by due course of law . . . .” Pa. Const. art. I, § 11. 
8

if he refused to submit, he would have submitted to a chemical test of his blood. 

Licensee, in addition to distinguishing Boseman on the facts, argues that it does not 

matter that this is a civil proceeding. Due process of law, according to Licensee,

still requires that when faced with having to quickly decide whether to submit to 

chemical testing of his blood, he be provided with correct information regarding the 

consequences of refusing such a test before his operating privilege could be 

suspended.

DOT responds that common pleas correctly reinstated the suspension of 

Licensee’s operating privilege. DOT asserts that, at the time Trooper warned 

Licensee about the consequences of refusing a chemical test of his blood, which was 

prior to Birchfield, those warnings were correct as a matter of law. DOT agrees with 

Licensee that Birchfield applies to cases such as Licensee’s that were pending when 

Birchfield was decided, but DOT contends that Birchfield does not warrant a 

different result. This is because, as this Court stated in Boseman, Birchfield impacts 

criminal DUI proceedings, not civil license suspension proceedings. In other words, 

DOT argues, the two proceedings are separate. DOT asserts that where the results 

of a blood test are involuntarily obtained, the remedy is the suppression of those 

results in a criminal DUI proceeding. However, here, Licensee did not submit to a 

blood test and, thus, there was nothing to suppress. Since Licensee was properly 

warned of the civil consequences of refusing a blood test, and Licensee knowingly 

and consciously refused the test, his operating privilege was properly suspended,

DOT asserts. Therefore, DOT argues, “it makes no difference” that Licensee was 

warned about both civil and criminal penalties for refusing a blood test because he 

was properly warned that his operating privilege would be suspended if he refused 

the blood test, and the warnings about criminal penalties, as held in Boseman, have
9

no impact on the suspension of Licensee’s operating privilege. (DOT’s Br. at 27.) 

Accordingly, DOT concludes, Licensee knowingly and consciously refused a 

chemical test of his blood, and he was not deprived of due process of law.

Following the parties’ submission of their briefs, we directed the parties to 

address the following questions at oral argument:

Where a licensee suspected of driving under the influence is not given 

an accurate version of the warning, as required by Department of 

Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873 

(Pa. 1989), does the holding in Peppelman . . . require that the license 

suspension appeal be sustained? Stated otherwise, can a licensee make 

a knowing and conscious decision as to whether to consent to chemical 

testing where the warning is not legally accurate when given?

(Order, filed May 9, 2018.)

Before addressing the merits of Licensee’s argument, it is helpful to our 

analysis to review the developments in the law before and after Birchfield. Prior to 

Birchfield, under former Section 1547(b)(2) of the Vehicle Code, a police officer 

was obligated to warn a licensee stopped on suspicion of DUI that the failure to 

submit to chemical testing, of either breath or blood, would result in the suspension 

of the licensee’s operating privilege and subject the licensee to the imposition of 

enhanced criminal penalties if the licensee was convicted of the DUI. Former 75 

Pa. C.S. § 1547(b)(2);

8 Martinovic v. Dep’t of Transp., Bureau of Driver Licensing, 

 

8 Former Section 1547(b)(2) provided as follows:

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

(i) the person’s operating privilege will be suspended upon refusal to submit to 

chemical testing; and

(ii) upon conviction, plea or adjudication of delinquency for violating section 

3802(a) [of the Vehicle Code], the person will be subject to the penalties 

provided in section 3804(c) [of the Vehicle Code] (relating to penalties).

Former 75 Pa. C.S. § 1547(b)(2).
10

881 A.2d 30, 34 (Pa. Cmwlth. 2005) (stating that in order to suspend a licensee’s 

operating privilege under Section 1547(b)(1), DOT had to prove, inter alia, that a 

“[l]icensee was specifically warned that a refusal would result in the suspension of 

his operating privileges and would result in enhanced penalties if he was later 

convicted of violating Section 3802(a)(1)”).

On June 23, 2016, the United States Supreme Court issued its decision in 

Birchfield. In Birchfield, the challenge was to two similar laws, one from Minnesota 

and the other from North Dakota, that made it a crime for a motorist suspected of 

DUI to refuse a breath or blood test required under those states’ implied consent 

laws. 579 U.S. at __, 136 S. Ct. at 2170-72. The Supreme Court held, in relevant 

part, as follows: the search-incident-to-arrest exception to the warrant requirement 

justifies a warrantless search of a motorist’s breath, but not his blood; implied 

consent under an implied consent law does not justify the warrantless search of a 

motorist’s blood; and a state may not impose criminal penalties on a motorist for 

refusing a blood test requested under an implied consent law. On that latter point, 

the Supreme Court concluded that it is unreasonable to impose criminal penalties on 

a motorist who refuses “an intrusive blood test” required under an implied consent 

law, stating “[t]here must be a limit to the consequences to which motorists may be 

deemed to have consented by virtue of a decision to drive on public roads.” 579 

U.S. at __, 136 S. Ct. at 2185-86. This point, however, was prefaced by the Court’s 

statement that “[o]ur prior opinions have referred approvingly to the general 

concept of implied-consent laws that impose civil penalties and evidentiary 

consequences on motorists who refuse to comply . . . . Petitioners do not question 

the constitutionality of those laws, and nothing we say here should be read to cast 
11

doubt on them.” 579 U.S. at __, 136 S. Ct. at 2185 (emphasis added; citations 

omitted).

Only a week after the Supreme Court decided Birchfield, at the request of the

Pennsylvania District Attorneys Association and a number of county district 

attorneys, DOT amended DOT Form DL-26, “creating one for breath tests and one 

for blood tests, the latter of which is now Form DL-26B.” Garlick v. Dep’t of 

Transp., Bureau of Driver Licensing, 176 A.3d 1030, 1032-33 (Pa. Cmwlth. 2018) 

(en banc). The amendment was prompted by the concern of these district attorneys 

that warning licensees about enhanced criminal penalties for refusing a blood test, if 

they were convicted of DUI, while still required by Section 1547(b)(2),9 would result 

in the suppression of blood test results in criminal proceedings. In fact, as the district 

attorneys anticipated, the Superior Court later held that when a licensee is warned 

about criminal penalties for refusing a chemical test of his blood, that “warning is 

‘partially inaccurate.’” Id. at 1033 (citing Commonwealth v. Evans, 153 A.3d 323, 

331 (Pa. Super. 2016)). As a result, “an enhanced sentence for refusing the blood 

test must be vacated.” Id. (citing Commonwealth v. Giron, 155 A.3d 635, 640 (Pa. 

Super. 2017)). In addition, “the results of the blood test must be suppressed,” if

consent, based on the totality of circumstances, including the partially inaccurate 

warning, is lacking. Id. (citing Evans, 153 A.3d at 331).

In July 2017, the General Assembly amended Sections 1547(b)(2)(ii) and 

3804(c) of the Vehicle Code, consistent with the holding in Birchfield, to clarify that 

enhanced criminal penalties could be imposed for refusing to submit to “‘chemical 

 

9 We held in Garlick that the failure to warn the licensee about the unconstitutional criminal 

penalties still contained in Section 1547(b)(2)(ii) at the time of his arrest did not render the civil 

suspension of his operating privilege improper. 176 A.3d at 1037. 
12

breath testing,’ not blood testing.” Garlick, 176 A.3d at 1033 (emphasis in original) 

(citing Section 4 of the Act of July 20, 2017, P.L. 333).10 Therefore, under the 

Implied Consent Law, a licensee is no longer subject to enhanced criminal penalties 

for refusing a chemical test of his blood if he is convicted of DUI, and, 

concomitantly, an officer has no obligation to warn a licensee of enhanced criminal 

penalties for refusing a blood test. Id. Rather, an officer must only warn a licensee 

that his operating privilege will be suspended if he refuses chemical testing of his 

blood.11

With that background, as Licensee explained at oral argument, he is relying 

on Birchfield as a “bridge” to Evans to show that the warning he received was 

“partially inaccurate,” which, regardless of whether Licensee actually relied on the 

warning, rendered his refusal not knowing and conscious. We are not persuaded by 

Licensee’s argument for the following reasons, which we detail below. First, the 

warning Licensee received was accurate when given. Second, even if the warning 

was subsequently rendered inaccurate by the change in the law brought about by 

Birchfield, Licensee’s refusal was still knowing and conscious because he was 

warned that his operating privilege would be suspended if he refused chemical 

testing. Third, while Licensee claimed at the hearing that the warning about 

enhanced criminal penalties left him “shell-shocked” or “frozen,” the factual record 

 

10 Enhanced criminal penalties upon conviction may also be imposed if a licensee refuses

a request for testing of blood “pursuant to a valid search warrant.” 75 Pa. C.S. § 3804(c).

11 Although not at issue in this case, we note that DOT, in addition to proving that a licensee 

was specifically warned that a refusal of a request for chemical testing of blood would result in 

suspension of his operating privilege, must prove that the police officer who arrested the licensee 

on suspicion of DUI “had reasonable grounds to believe that the licensee was operating or was in 

actual physical control of the movement of the vehicle while under the influence of alcohol,” that 

the officer requested that the licensee submit to chemical testing of his blood, and that the licensee 

refused the officer’s request. Kollar v. Dep’t of Transp., Bureau of Driver Licensing, 7 A.3d 336, 

339 (Pa. Cmwlth. 2010).
13

does not support any claim that this prevented him from knowingly and consciously 

refusing chemical testing.

We begin with the knowing and conscious standard, which “is not explicitly 

found in Section 1547.” Yourick v. Dep’t of Transp., Bureau of Driver Licensing, 

965 A.2d 341, 345 (Pa. Cmwlth. 2009). We have, therefore, held that the knowing 

and conscious standard “must be strictly construed as it creates exceptions to the 

clear language and policy of the implied consent law.” Id. (citation omitted). 

Further, the licensee bears the burden of proving that his refusal was not knowing or 

conscious. Id. at 344.

First, it is true, as Licensee argues and DOT concedes, that the retroactive 

application of Birchfield renders the portion of the warnings read to Licensee about 

enhanced criminal penalties inaccurate. (Licensee’s Br. at 8; DOT’s Br. at 9.) 

However, as the parties also agree, when that warning was given to Licensee, prior 

to Birchfield, it was accurate as a matter of law. (Licensee’s Br. at 19; DOT’s Br. at 

9.) Whether a refusal was knowing and conscious must be judged at the time of the 

warning and refusal. See Lanthier v. Dep’t of Transp., Bureau of Driver Licensing, 

22 A.3d 346, 351-52 (Pa. Cmwlth. 2011) (stating that “[w]hether . . . a license[e]

was actually conscious and listening at the time a request was made goes to whether 

a licensee was capable of making a conscious and knowing refusal”) (second 

emphasis added); Dep’t of Transp., Bureau of Traffic Safety v. Day, 500 A.2d 214, 

214 (Pa. Cmwlth. 1985) (stating that when considering whether a refusal was 

knowing and conscious, “[o]ne of the most important [factors] is the driver’s mental 

and physical state at the time”) (emphasis added). Indeed, it would be speculative 

for a licensee to argue, and a court to conclude, that a refusal, which is a factintensive inquiry, was not knowing and conscious because of a change in the law 
14

that occurred after the refusal itself. Such a subsequent change in the law necessarily 

could not have played any part in a licensee’s decision whether to refuse chemical 

testing.

Contrary to Licensee’s contention, this holding does not deny him the benefit 

of the decision in Birchfield, to which he is entitled because his appeal was pending 

at the time Birchfield was decided. Kituskie v. Corbman, 714 A.2d 1027, 1030 n.5 

(Pa. 1998). Birchfield held that a motorist cannot be criminally penalized for 

refusing a blood test requested under an implied consent law. Licensee, however, 

was not criminally penalized for refusing the blood test. Birchfield, 579 U.S. at __, 

136 S. Ct. at 2186 (reversing judgment of conviction where petitioner Birchfield was 

threatened with an unlawful search).12 Birchfield further held that when the results 

of a blood test are obtained based on a threat that the motorist will be criminally 

penalized for refusing, the voluntariness of the motorist’s consent, both in any 

criminal prosecution or civil license suspension proceeding, must be evaluated based 

on the totality of the circumstances, taking into account the fact that the motorist was 

given partially inaccurate advice. Id. (where motorist submitted to blood test on pain 

of criminal prosecution and his license was then suspended as a result of the high 

level of concentration of alcohol in his blood, the matter was remanded to state court 

to determine whether motorist’s consent to the test was voluntary under the totality 

of the circumstances, including the fact his consent followed a partially inaccurate 

warning); see Commonwealth v. Neysmith, __ A.3d __, __, (Pa. Super., No. 1584 

MDA 2017, filed June 28, 2018), slip op. at 5-7 (affirming denial of the suppression 

of blood test results based on defendant having voluntarily consented, given the 

 

12 Upon remand, the North Dakota Supreme Court vacated petitioner Birchfield’s 

conviction for refusing to submit to a chemical test and directed the trial court to dismiss the charge 

with prejudice.
15

totality of the circumstances, even though he was inaccurately warned that he would 

be facing enhanced criminal penalties for refusing). However, here, upon Licensee’s 

refusal, no blood test was conducted, and thus no results were obtained, because 

Licensee was not coerced into agreeing to the test. Therefore, Licensee’s rights, 

under Birchfield, have not been violated.

Second, even if the warning was accurate when given but was rendered 

inaccurate based on a subsequent change in the law, this did not render his refusal 

unknowing or unconscious. Licensee reads cases such as Peppelman too broadly to 

suggest that any inaccuracy in the warning requires that a suspension of a licensee’s 

operating privilege be rescinded.

In Peppelman, the licensee was told that he “could” lose his license if he 

refused the requested blood test, and not, as required by Section 1547(b)(2), that his 

license “will” be suspended. 403 A.2d at 1042 (emphasis added). We took a “strict 

approach with respect to language imposing a duty upon the police officer to inform 

the motorist that his license will be suspended or revoked if he refuses to take the 

test.” Id. at 1043. As a matter of “fairness,” we stated, the licensee was “entitled 

[to] prior warning of the consequence of refusing the test.” Id. We rejected the 

Commonwealth’s argument that the inaccuracy of the warning should be overlooked 

because the licensee did not rely on it. Id.

Then, in Department of Transportation, Bureau of Driver Licensing v. 

Osborne, 580 A.2d 914 (Pa. Cmwlth. 1990), upon which Licensee also relies, we 

again stated that an error in the warning given to the licensee required that the 

suspension of his operating privilege be rescinded because the error prevented the 

licensee from making a knowing and conscious refusal. There, although the officer 

correctly warned the licensee that if he refused chemical testing, his operating 
16

privilege would be suspended, the officer also told the licensee that there was a 

special work permit available to the licensee that would allow him to drive to and 

from work during his suspension. Id. at 915. This information was inaccurate. 

Indeed, the officer’s warning “effectively related that there would be no 

suspension.” Id. at 916 (emphasis added). We rejected DOT’s claim that this 

misinformation was harmless. Id. To the contrary, this misinformation prevented 

the licensee “from making a knowing and conscious refusal.” Id.

We have not read Peppelman and Osborne to require that any error in the 

warning will render the refusal as not knowing and conscious, and, instead, have 

concluded in other cases that not every error has this effect. For example, in 

Department of Transportation, Bureau of Traffic Safety v. March, 515 A.2d 661 (Pa. 

Cmwlth. 1986), the officer erroneously informed the licensee that refusing to submit 

to a breath test would result in a six-month suspension of his operating privilege 

when, in fact, a recent change in the law had increased the suspension to one year. 

Distinguishing Peppelman, we held that the officer’s statement about the length of 

the suspension he was facing was an “extraneous statement” that did not invalidate 

the accurate warning he received “that his failure to submit to a test would result in 

a suspension of his license.” Id. at 663; see also Dep’t of Transp., Bureau of Driver 

Licensing v. Olenick, 540 A.2d 993, 994-95 (Pa. Cmwlth. 1988) (where the officer 

misstated that licensee’s operating privilege would be suspended only for six months

instead of one year, this error was “harmless” and did “not negate the validity of a 

warning because an officer is not required to state the length of suspension”); accord

Kennedy v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 2308 
17

C.D. 2012, filed May 24, 2013), slip op. at 8 (relying on Olenick in holding that 

warning was accurate).13

More recently, in Alexander v. Department of Transportation, Bureau of 

Driver Licensing, 885 A.2d 651 (Pa. Cmwlth. 2005), we were presented with a 

question similar to the one here: whether a warning, which includes enhanced 

criminal penalties which are unlawful, renders the licensee’s refusal of chemical 

testing unknowing and unconscious. We concluded that it did not. In that case, 

Section 1547(b)(2) provided that enhanced criminal penalties, including 

imprisonment and a $1000 fine, could be imposed on a juvenile who refused 

chemical testing and was later adjudicated delinquent for DUI. The licensee was 17 

years old at the time of the traffic stop and, thus, a juvenile. However, a juvenile

could not be subject to enhanced criminal penalties for a summary offense, id. at 655 

(Kelley, J., dissenting14), and, by the time the licensee’s appeal was before us, the 

General Assembly had amended Section 1547(b)(2). The licensee in that case 

argued that he was misinformed about the penalties for refusing the chemical test 

and thus could not make a knowing and conscious decision. We concluded that this 

misinformation did not render the licensee’s refusal unknowing. Quoting from our 

decision in Weaver v. Department of Transportation, Bureau of Driver Licensing, 

 

13 Kennedy is cited “for its persuasive value” in accordance with Section 414(a) of this 

Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).

14 We note that the dissent’s disagreement was based on the licensee being a minor.

It may be sufficient to conclude that all that is necessary in order to satisfy the 

requirements of Section 1547(b)(2) of the Vehicle Code in the case of an adult is 

for the police to inform a motorist that he or she will be in violation of the law and 

will be penalized for that violation if he or she should fail to accede to the officer’s 

request for a chemical test. But . . . it is not sufficient to make the same conclusion 

in the case of a minor.

Alexander, 885 A.2d at 655.
18

873 A.2d 1, 2 (Pa. Cmwlth. 2005), aff’d, 912 A.2d 259 (Pa. 2006), we stated that 

“[i]t is sufficient for the police to inform a motorist that he or she will be in violation 

of the law and will be penalized for that violation if he or she should fail to accede 

to the officer’s request for a chemical test.” Alexander, 885 A.2d at 653. The 

licensee, we stated, “was aware that if he refused to submit to the chemical test, he 

would be in violation of the law[,]” and yet “[h]e still refused[.]” Id. As such, his 

refusal had to “be deemed a denial to submit to a request for a chemical test.” Id.

When we read Peppelman and Osborne in light of March, Alexander, and 

Weaver, we see that not every inaccuracy in a warning will render a refusal 

unknowing. In Peppelman and Osborne, where the officer’s warning made it appear 

that there would either be no consequence or might not be any consequence for 

refusing, then the refusal was not knowing and conscious. However, where the 

officer’s warning informed the licensee that there would be a civil consequence of 

the loss of operating privilege for refusing, the licensee’s refusal will still be 

considered knowing and conscious even if the warning includes an enhanced 

criminal penalty that is more severe than required by law, as in Alexander. This 

Court has found it is “legally sufficient” if the officer “informs the licensee that 

refusing a request for chemical testing means that he/she ‘will be in violation of the 

law and will be penalized for that violation.’” Yourick, 965 A.2d at 345 (quoting 

Weaver, 873 A.2d at 2).

We therefore find that Licensee’s refusal, here, was knowing and conscious. 

Trooper told Licensee that if he refused chemical testing, his operating privilege 

would be suspended for one year. Despite this knowledge, Licensee still refused 

chemical testing. In other words, Licensee refused chemical testing with full 

knowledge that his refusal would result in a penalty, which was the suspension of 
19

his operating privilege. That the warning also included an enhanced criminal penalty 

that was more severe than ultimately would be required by law if he was convicted 

of DUI, as in Alexander, did not render the warning insufficient. 

While Licensee also cites to O’Connell and Binder v. Commonwealth, 513 

A.2d 1105 (Pa. Cmwlth. 1986), in support of his argument, they do not compel a 

different result. Binder and O’Connell are both distinguishable. In Binder, the 

officer told the licensee that, if he preferred, he could take a blood test instead of a 

breath test. 513 A.2d at 1106. According to the licensee, but not the officer, the 

licensee told the officer he preferred a blood test. Citing Peppelman, we noted that 

“a licensee is statutorily entitled to a warning that refusal to submit to a test will 

result in the licensee’s suspension,” that “the duty to administer the warning includes 

a duty to do so accurately,” and that “a licensee need not rely on the inaccurate 

warning.” Id. at 1107. Based on Peppelman, we held that, because a licensee has 

no right to a choice of tests, the warning was inaccurate, and that “this fact alone,” 

without any reliance on the part of the licensee, required that the suspension be set 

aside. Id. Although, as Licensee notes, Binder supports the general proposition that 

a licensee is entitled to an accurate warning and that the licensee need not rely on 

the inaccurate warning, Binder specifically relates to the manner in which a licensee 

refuses a chemical test, not the consequences of refusing. If, as in Binder, the 

licensee is told that he has the option of a breath test or a blood test and he opts for 

the latter, he has not knowingly refused chemical testing. Here, however, we are 

not concerned with the manner in which Licensee refused – he undisputedly refused 

a blood test – rather, we are concerned with the impact of a statement about the 

consequences of refusing chemical testing. Thus, Binder is distinguishable.
20

O’Connell is also distinguishable. There, following the licensee’s arrest for 

DUI, he was twice advised of his Miranda15 rights, at the scene and at the police 

station, and he indicated that he wanted to speak with an attorney. 555 A.2d at 874. 

Then, the officer asked the licensee to take a breath test, which, according to the 

credited testimony, the licensee refused because the officer would not permit the 

licensee to speak with his attorney. Id. at 874-75. The licensee claimed this refusal 

was not knowing “because he was misled into believing that he was entitled to confer 

with an attorney prior to deciding to take the test.” Id. at 876. Our Supreme Court 

held that the licensee was entitled to be told that Miranda rights “are inapplicable” 

to a chemical test and that he “does not have the right to consult with an attorney or 

anyone else prior to taking the test.” Id. at 878. The Supreme Court reasoned that 

the licensee was entitled to this information so that he could make a “knowing and 

conscious” decision. Id. Further, the Supreme Court stated, it was appropriate to 

place the duty on the officer to clarify “the extent of the right to counsel” when 

requesting that the licensee take a chemical test because it was the police’s “course 

of conduct” that “creat[ed] the confusion in these cases.” Id. O’Connell is 

distinguishable from the instant matter because in O’Connell the warnings were 

inherently contradictory. The Miranda warning the licensee in O’Connell was given 

was that he had the right to remain silent and to speak with an attorney prior to any 

police questioning, but then that was followed by the officer asking the licensee if 

he would take a chemical test. Thus, the warnings were contradictory and, as 

O’Connell held, had to be clarified by the officer advising the licensee that there is 

no right to consult with an attorney prior to taking the chemical test. See Dep’t of 

Transp., Bureau of Driver Licensing v. Scott, 684 A.2d 539, 544 (Pa. 1996) 

 

15 Miranda v. Arizona, 384 U.S. 436 (1966).
21

(explaining O’Connell, that once a motorist is informed of his Miranda rights, he 

“may reasonably assume he has the right to consult with an attorney before the 

chemical testing, or to refuse to submit to the testing as an exercise of his right to 

remain silent”). Here, however, there was nothing contradictory about the warnings 

Licensee was given. Indeed, as we have outlined, the warnings were accurate as a 

matter of law at the time they were given and only became inaccurate after the 

change in the law brought about by Birchfield.

In short, Licensee has not shown that his refusal was unknowing or, stated 

differently, that Peppelman requires that his appeal be sustained. Unlike in 

Peppelman and Osborne, Licensee was told that there would be a consequence for 

refusing chemical testing, that his operating privilege would be suspended, and, 

unlike in O’Connell, there was nothing inherently contradictory about the warnings 

Licensee received.

Third, while Licensee claims that the warning about enhanced criminal 

penalties left him “froze[n]” and “shell-shocked,” which is to suggest that his fear 

left him unable to make a knowing and conscious refusal, (R.R. at 67a; Licensee’s 

Br. at 16), other facts in the record undermine his claim. Although Licensee testified 

he was “froze[n]” and “shell-shocked,” he was still able to sign his name to the DL26 Form and tell Trooper, “I’m not taking the test.” (R.R. at 39a, 67a.) Licensee 

never told Trooper that he was unable to understand the warnings, and he did not 

remain silent, which would better support any claim that he was “froze[n].”16 Even 

then, any subjective misunderstanding on Licensee’s part would not suffice to render 

his refusal not knowing and conscious. Yourick, 965 A.2d at 345 (stating that 

subjective misunderstandings do not make a refusal not knowing or conscious). In 

 

16 Licensee states in his brief that upon hearing the warning, “he believed that he should 

not speak or consent to give blood,” but Licensee did speak. (Licensee’s Br. at 6.)
22

short, the factual record does not support Licensee’s claim that his fear about the 

potential for receiving enhanced criminal penalties for refusing chemical testing if 

he was convicted of DUI prevented him from making a knowing and conscious 

refusal. Renfroe v. Dep’t of Transp., Bureau of Driver Licensing, 179 A.3d 644, 650

(Pa. Cmwlth. 2018) (holding that where the licensee testified that he could not take 

a blood test because he feared needles, the factual record did not support his claim 

on appeal that he was “forced to choose between asserting his Fourth Amendment 

right and maintaining his operating privilege”); Quigley v. Dep’t of Transp., Bureau 

of Driver Licensing, 965 A.2d 349, 354 (Pa. Cmwlth. 2009) (where the licensee 

claimed that the warnings were ambiguous, we noted that the licensee never told the 

officer that she thought the warning advised her that her operating privilege would 

be suspended only if she had prior refusals or convictions; rather, the only reason 

she gave for not complying was that she wanted to call her husband first).

Finally, for these same reasons, we must also reject Licensee’s due process 

argument.17 Licensee’s claim is that procedural due process required that he be given 

an accurate warning before having to make a decision that would result in the 

suspension of his operating privilege if he refused chemical testing. Licensee, 

however, received all the procedural process he was due. As we have discussed at 

length, the warning was accurate when given to Licensee, and his refusal was 

knowing because Trooper told him that he would be penalized if he refused chemical 

testing. Licensee can hardly complain that it is fundamentally unfair for the 

 

17 Typically, a procedural due process claim is couched in terms of notice and an 

opportunity to be heard. Licensee couches his claim more generally, asserting that the procedure 

followed in this case – misinforming Licensee about the consequences of refusing – was 

fundamentally unfair.
23

Commonwealth to impose on him the very consequence it warned him would be 

imposed if he refused.

While Licensee points to the concurring opinions in Price v. Department of 

Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 1873 C.D. 2016, filed 

September 29, 2017), and Gray v. Department of Transportation, Bureau of Driver 

Licensing (Pa. Cmwlth., Nos. 1759 C.D. 2016, 1760 C.D. 2016, filed June 9, 2017),

petition for allowance of appeal denied, 181 A.3d 1072 (Pa. 2018), as supporting his

procedural due process argument, they do not. In both Price and Gray, the licensees 

were warned that they would be subject to enhanced criminal penalties if they 

refused. In both cases, we rejected the licensees’ arguments that Birchfield applied 

to their respective license suspension appeals. Price, slip op. at 8 (“Birchfield is 

inapposite”); Gray, slip op. at 13 (concluding that Boseman, which stated that the 

holding of Birchfield “was irrelevant to a civil license suspension,” was 

“dispositive”). In a concurring opinion in both cases, the concurring judge, although 

constrained by Boseman, argued that a licensee has a constitutional right to refuse a 

warrantless blood test when threatened with criminal punishment and that to punish 

a licensee for exercising that constitutional right by suspending her operating 

privilege violates the Pennsylvania Constitution. Price, slip op. at 2 (McCullough, 

J., concurring); Gray, slip op. at 4-5 (McCullough, J., concurring). In reaching that 

conclusion, the concurring judge stated, “‘[t]o punish a person because he has done 

what the law plainly allows him to do is a due process violation of the most basic 

sort.’” Gray, slip op. at 5 (quoting United States v. Goodwin, 457 U.S. 368, 372 

(1982)). Licensee highlights this language from Gray, (Licensee’s Br. at 17), but he

does not make any connection between that language and the argument he advances 

here. Licensee does not make the argument that the concurring judge in Price and 
24

Gray found persuasive. Thus, Price and Gray are distinguishable because they 

involved a different legal argument, and Licensee fails to analogize Price and Gray

to this matter so as to sway us that the concurring opinions in those matters should 

be applied here.

B. Coercion

Licensee also argues that Trooper’s “improperly coercive threat of 

enhancement of criminal penalties caused [Licensee] to . . . refuse the test.” 

(Licensee’s Br. at 16.) 

Although it bears highlighting that Licensee was not, in fact, “coerced” since 

he refused chemical testing, this claim, in any event, amounts to another argument 

that we should extend Birchfield to civil license suspension proceedings. We have 

already rejected such a claim several times. For example, in Boseman, the licensee

argued that, under Birchfield and the Fourth Amendment to the United States 

Constitution,

18 her operating privilege should be reinstated because the arresting 

officer lacked either a warrant or exigent circumstances that would have justified the 

taking of her blood. 157 A.3d at 19. We rejected the licensee’s argument. “We 

emphasize[d] that a license suspension stemming from a refusal to submit to 

chemical testing is a separate administrative proceeding from a criminal DUI 

proceeding arising out of the same incident.” Id. at 20. Further, we noted, Birchfield

“[b]y its own language . . . does not apply to implied consent laws that merely impose 

civil penalties.” Id. at 21. Therefore, because “the present case involve[d] a civil 

license suspension appeal, not a criminal proceeding,” and because “Birchfield

 

18 The Fourth Amendment to the United States Constitution guarantees “[t]he right of the 

people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const. 

amend. IV.
25

addressed the constitutionality of a State statute that made it a crime to refuse a 

warrantless blood test after being arrested for DUI,” Birchfield, we held, did not 

apply. Id. (emphasis in original). Birchfield, we noted, might “have some impact in 

criminal DUI proceedings in Pennsylvania where enhanced penalties based on 

refusal of a blood test are imposed,” but that was not the case in Boseman, id., nor is 

it the case here.

In Marchese v. Department of Transportation, Bureau of Driver Licensing, 

169 A.3d 733 (Pa. Cmwlth. 2017), petition for allowance of appeal denied, 182 A.3d 

442 (Pa. 2018), a permutation of Boseman, the licensee argued that Section 1547(a) 

and (b) violated the Fourth Amendment to the United States Constitution because it 

required a licensee to submit to a warrantless request for a blood draw on pain of 

having his operating privilege suspended. Again, the licensee’s argument was 

premised on the holding in Birchfield. Id. at 737. We rejected the licensee’s attempt 

“to extend the scope of the holding in Birchfield.” Id. at 738. We reiterated that the 

holding in Birchfield was limited “to implied consent laws imposing criminal 

penalties.” Id. at 739-40. We went on to reject the licensee’s argument based on the 

Fourth Amendment, noting that “license suspensions are civil, not criminal 

proceedings,” that the Fourth Amendment’s exclusionary rule does not apply outside 

criminal trials, and that the continuation of the privilege to operate a motor vehicle 

on the roads of this Commonwealth is reasonably conditioned on the requirement 

that the licensee submit to a warrantless blood test when suspected of DUI. Id. at 

740-42. Therefore, Section 1547(a) and (b) did not violate the Fourth Amendment.

Most recently, in Renfroe, an en banc panel of this Court considered a set of 

circumstances similar to those here. There, the arresting officer requested that the 

licensee submit to a chemical test of his blood, warning him that if he refused his 
26

operating privilege would be suspended and he would be subjected to enhanced 

criminal penalties if he was criminally convicted of DUI. 179 A.3d at 646-47. The 

licensee argued “that Birchfield should be extended to civil license suspensions 

because a licensee cannot be punished, either civilly or criminally, for refusing to 

submit to a blood test.” Id. at 648. We, however, again declined to extend Birchfield

to civil license suspension proceedings. Id. at 650-51 (citing Marchese, 169 A.3d at 

739-40; Boseman, 157 A.3d at 21). Reviewing our decision in Boseman, we stated 

that its holding was “grounded upon the settled distinction between a civil license 

suspension proceeding and a criminal DUI proceeding arising out of the same 

incident.” Id. at 650. Therefore, we concluded in Renfroe, “[c]onsistent with our 

decisions in Boseman and Marchese,” common pleas “did not err by holding that 

Birchfield does not apply to civil license suspensions.” Id. at 651.

We reiterate here again that Birchfield does not apply to civil license 

suspension proceedings. Thus, any claim that the warnings given to Licensee were 

coercive – even though Licensee was not coerced by the warnings since he refused 

chemical testing – would have to fail.

III. Conclusion

Common pleas properly denied Licensee’s statutory appeal. Trooper 

provided Licensee with a warning that was accurate at the time it was given, telling 

him that if he refused chemical testing of his blood, his operating privilege would be 

suspended. While Trooper also warned Licensee that he would be subject to 

enhanced criminal penalties if he refused and was subsequently convicted of DUI, 

this warning, rendered retroactively inaccurate by the change in the law brought 

about by Birchfield, did not make Licensee’s refusal not knowing and conscious nor 
27

deprive Licensee of procedural due process. Licensee knew that he would be in 

violation of the law if he refused chemical testing and that he would be penalized for 

that violation by the suspension of his operating privilege, because Trooper 

conveyed this information to him. Yet, Licensee still refused chemical testing. 

While Licensee claims that the warning about enhanced criminal penalties left him 

“froze[n]” and “shell-shocked,” other facts in the record belie these claims. (R.R. at 

67a.) Moreover, Licensee’s claim that the warning was coercive and that Birchfield

should be extended to civil license suspension proceedings is one which we have 

rejected several times already. Therefore, we must affirm common pleas’ Order 

refusing to rescind DOT’s one-year suspension of Licensee’s operating privilege.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Wayne Patane, :

Appellant :

 :

v. : No. 973 C.D. 2017

 :

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

O R D E R

NOW, August 9, 2018, the Order of the Court of Common Pleas of Delaware 

County, dated June 27, 2017, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge