IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bradley Graffius, :

Appellant :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, : No. 880 C.D. 2017

Bureau of Driver Licensing : Submitted: January 12, 2018

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: March 20, 2018

Bradley Graffius (Licensee) appeals from the York County Common 

Pleas Court’s May 31, 2017 order dismissing his appeal and reinstating the

Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver 

Licensing’s (Department) operating privilege suspension. Licensee presents two 

issues for this Court’s review: (1) whether the arresting officer’s failure to read the 

enhanced penalties in the implied consent warning (Form DL-26)1 bars the 

Department from suspending Licensee’s operating privilege for refusing to submit to 

chemical testing; and, (2) whether the enhanced penalties provision is severable from 

Section 1547 of the Vehicle Code.

2

 After review, we affirm.

 

1

“The [Form] DL-26 [] contains the chemical test warnings required by Section 1547 of the 

Vehicle Code, [75 Pa.C.S. § 1547,] which are also known as the implied consent warnings.” Vora 

v. Dep’t of Transp., Bureau of Driver Licensing, 79 A.3d 743, 745 n.2 (Pa. Cmwlth. 2013).

2

75 Pa.C.S. § 1547.
2

On November 14, 2016, Licensee was arrested for driving under the 

influence of alcohol (DUI).3 The arresting state police officer read Licensee the 

implied consent warnings in the Form DL-26. Those portions of the implied consent 

warnings which related to the enhanced criminal penalties for not submitting to a 

blood test were redacted from the Form DL-26 as a result of the United States 

Supreme Court’s ruling in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).

4

 

Licensee refused to submit to the blood test. On November 30, 2016, the Department 

notified Licensee that, due to his refusal, his driver’s license would be suspended for 

12 months, effective January 4, 2017, pursuant to Section 1547 of the Vehicle Code. 

Licensee appealed from his license suspension to the trial court. On 

May 31, 2017, a hearing was held during which the Department and Licensee 

stipulated to the facts, and the trial court denied Licensee’s appeal and upheld his

license suspension. Licensee appealed to this Court.5 On July 10, 2017, the trial 

court ordered Licensee to file a Statement of Matters6 Complained of on Appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (Rule 1925(b) 

Statement). By July 10, 2017 order, Licensee’s Application for Supersedeas Pending 

Appeal was granted, and his driver’s license was reinstated pending this appeal. 

Licensee filed his Rule 1925(b) Statement with the trial court on July 31, 2017. 

 

3

See Section 3802(a)(1) of the Vehicle Code, which provides: “An individual may not 

drive, operate or be in actual physical control of the movement of a vehicle after imbibing a 

sufficient amount of alcohol such that the individual is rendered incapable of safely driving, 

operating or being in actual physical control of the movement of the vehicle.” 75 Pa.C.S. §

3802(a)(1).

4 This case and the Court’s ruling will be discussed more fully below. 

5

“Our standard of review in a license suspension case is to determine whether the factual 

findings of the trial court are supported by competent evidence and whether the trial court 

committed an error of law or an abuse of discretion.” Gammer v. Dep’t of Transp., Bureau of 

Driver Licensing, 995 A.2d 380, 383 n.3 (Pa. Cmwlth. 2010). 

6 Former Rule 1925(b) read a statement of “matters” complained of on appeal. Whereas, the 

current Rule 1925(b) refers to a statement of “errors” complained of on appeal.
3

Licensee argues that the trial court erred in dismissing his appeal 

because Section 1547(b)(2)(ii) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(2)(ii), 

specifically requires notification of the DUI enhanced criminal penalties before a 

civil license suspension can be imposed for a chemical test refusal. We disagree. 

As this Court explained in Negovan v. Department of Transportation, 

Bureau of Driver Licensing, 172 A.3d 733 (Pa. Cmwlth. 2017):

[T]his Court has held that there is no constitutional 

requirement for a police officer to provide any implied 

consent warnings to a driver arrested for DUI. 

Accordingly, the only warnings that must be provided are 

those mandated by statute, and those required by the 

Supreme Court in Department of Transportation, Bureau of 

Traffic Safety v. O’Connell, . . . 555 A.2d 873 ([Pa.] 

1989).

[7]

Negovan, 172 A.3d at 736 (citations omitted). This Court acknowledges that on the 

date of Licensee’s arrest, Section 1547(b) of the Vehicle Code provided, in relevant

part: 

(1) If any person placed under arrest for a violation of 

[S]ection 3802 [of the Vehicle Code] 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 [D]epartment shall suspend the operating privilege 

of the person as follows:

 

7 The O’Connell Court held:

[W]here an arrestee requests to speak to or call an attorney, or anyone 

else, when requested to take a breathalyzer test, we insist that in 

addition to telling an arrestee that his license will be suspended for 

one year if he refuses to take a breathalyzer test, the police instruct the 

arrestee that such rights are inapplicable to the breathalyzer test and 

that the arrestee does not have the right to consult with an attorney or 

anyone else prior to taking the test.

Id. at 878.
4

(i) Except as set forth in subparagraph (ii), for a period of 

12 months.

. . . .

(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 the person will be 

subject to a restoration fee of up to $2,000; and

(ii) if the person refuses to submit to chemical testing,[8]

upon conviction or plea for violating [S]ection 3802(a)(1)

[of the Vehicle Code], the person will be subject to the 

penalties provided in [S]ection 3804(c) [of the Vehicle 

Code] (relating to penalties).

(3) Any person whose operating privilege is suspended 

under the provisions of this section shall have the same 

right of appeal as provided for in cases of suspension for 

other reasons.

75 Pa.C.S. § 1547(b) (emphasis added). Further, this Court recognizes that the Form 

DL-26 read to Licensee did not contain the warning specified in Section 

1547(b)(2)(ii) of the Vehicle Code. However, as expounded in Negovan:

[O]n June 23, 2016, the United States Supreme Court 

rendered its decision in Birchfield, wherein, the Court held 

inter alia that a motorist may not be criminally punished for 

refusing to submit to a blood test based on [his] legallyimplied consent to so submit. Id. The Birchfield Court 

explained that there was a difference between implied 

consent laws that impose civil penalties and evidentiary 

consequences on motorists who refuse to comply, and a 

state insisting upon an intrusive blood test and then 

imposing criminal penalties on a refusal to submit to the 

blood test. Id. Thus, ‘motorists cannot be deemed to have 

consented to submit to a blood test on pain of committing a 

criminal offense.’ Birchfield, U.S. at , 136 S.Ct. at 

 

8 The statute was amended, effective January 20, 2018, to read: “if the person refuses to 

submit to chemical breath testing . . . .” 75 Pa.C.S. § 1547(b)(2)(ii) (emphasis added). 
5

2186. Consequently, the enhanced criminal penalties for 

failure to submit to chemical testing are 

unconstitutional.

Negovan, 172 A.3d at 737 (emphasis added). Here, the arresting officer “specifically 

and accurately warned Licensee about the consequences of refusing a blood test that 

remain following Birchfield, that is, the suspension of his license. Therefore, [the 

trial court] did not err when it denied Licensee’s appeal.” Garlick v. Dep’t of 

Transp., Bureau of Driver Licensing, ___ A.3d ___, ___ (Pa. Cmwlth. No. 48 C.D. 

2017, filed January 3, 2018) slip op. at 13-14 (footnote omitted).

Licensee next contends that since the enhanced penalties provision is not 

severable from Section 1547 of the Vehicle Code, the redaction invalidated the entire 

statute. We disagree.

Section 1925 of the Statutory Construction Act of 1972 (Statutory 

Construction Act) provides:

The provisions of every statute shall be severable. If any 

provision of any statute or the application thereof to any 

person or circumstance is held invalid, the remainder of the 

statute, and the application of such provision to other 

persons or circumstances, shall not be affected thereby, 

unless the court finds that the valid provisions of the statute 

are so essentially and inseparably connected with, and so 

depend upon, the void provision or application, that it 

cannot be presumed the General Assembly would have 

enacted the remaining valid provisions without the void 

one; or unless the court finds that the remaining valid 

provisions, standing alone, are incomplete and are incapable 

of being executed in accordance with the legislative intent.

1 Pa.C.S. § 1925. Here, a review of Section 1547 of the Vehicle Code makes it clear 

that “the valid provisions of the statute are [not] so essentially and inseparably 

connected with, and [do not] depend upon, the [redacted] provision . . . that it cannot 

be presumed the General Assembly would have enacted the remaining valid 

provisions without the [redacted] one[,]” or “that the remaining valid provisions, 
6

standing alone, are incomplete and are incapable of being executed in accordance 

with the legislative intent.” Id.; see also Givens v. Dep’t of Transp., Bureau of Driver 

Licensing (Pa. Cmwlth. No. 1203 C.D. 2017, filed March 6, 2018) (rejecting the 

argument that Section 1547(b)(2)(ii) of the Vehicle Code is not severable from the 

remainder of the statute and upholding the suspension of licensee’s operating 

privilege); Spellman v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth. 

No. 124 C.D. 2017, filed November 15, 2017) (Section 1547(b)(2)(ii) of the Vehicle 

Code, as applied to blood testing, was effectively severed from the rest of the Vehicle 

Code).9 This ruling is especially evident here, where, as stated by the trial court, 

arresting police officers have read the redacted version of the Form DL-26 warnings 

to licensees between the time Birchfield was decided and Section 1547 of the Vehicle 

Code was amended, without any apparent confusion or misapplication of the law. 

See Reproduced Record at 76. Accordingly, “the remainder of the statute, and the 

application of such provision to [Licensee], was not [] affected” by the redaction of 

the implied consent enhanced penalties provision. 1 Pa.C.S. § 1925.

For all of the above reasons, the trial court’s order is affirmed.

___________________________

ANNE E. COVEY, Judge

 

9 This Court’s unreported memorandum opinions may be cited “for [their] persuasive value, 

but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating 

Procedures, 210 Pa. Code § 69.414(a). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bradley Graffius, :

Appellant :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, : No. 880 C.D. 2017

Bureau of Driver Licensing :

O R D E R

AND NOW, this 20th day of March, 2018, the York County Common 

Pleas Court’s May 31, 2017 order is affirmed.

___________________________

ANNE E. COVEY, Judge