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 : Submitt ed: January 12 , 201 8

BEFOR E: 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 Graff

i us (Licensee) appeals from the York County Common

Plea s 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 revi ew: (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 ar rested for d r iving under the

i nfluence of alcohol (DUI). 3 T he arresting state police officer read Licensee th e

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 Cou rt’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 h is refusal

, h is driver’s license would be suspended for

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

Licensee appealed from his license suspension to the trial court. O n

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

stipulat ed to the facts

, and the trial co urt denied Licensee’s appeal and upheld h is

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

court ordered Licensee to file a Statement of Matters 6 Complained of on Appeal

pursuant to Pennsylvania Rule of Appellate Proced ure 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 h is Rule 1925(b) Statement with the trial court o n 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 al cohol 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 h is 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

civi l license suspension can be impos ed 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 consti tutional 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 Tr ansportation

, Bureau of Traffic Safety v. O’ Connell

, . . . 555 A.2d 873 ( [Pa.] 1989)

. [ 7 ]

Negovan, 172 A.3d at 736 (citations omitted)

. This Court acknowledge s that on the

date of Licensee’s arrest, Section 1547(b ) of the V ehicle Code provide d , in relevant

part :

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

[S] ection 3802 [of t he 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 ] epartmen t 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 privileg e 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

r ight of appeal as provided for in cases of suspension for
other reasons.

75 Pa.C.S. § 1547(b) (emphasis added)

. F urther , this Court recognize s that the Form

DL

- 2 6 read to Licensee did not contain the warning specified in Section

1547(b)(2)(ii) of the Vehi cle 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 b ased on [his] legally

implied 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 insist ing 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 st atute 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 Lic ensee 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 Lice nsing

,

___ A.3d

___ , ___ (Pa. Cmwlth. No. 48 C.D.

2017, filed January 3, 20 1 8) 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 i nvalidate d 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 a ny 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 essentia lly 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 a re [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 r emaining 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

, 201 8 ) (rej e cting 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 sever ed from the rest of the Vehicle

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

arresting police officers have read the redacted version of the Form DL

- 26 warnings

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

Code was amended, witho u t 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 a

bove reasons, the trial court’s order is affirmed.

___________________________ ANNE E. COVEY, Judge

9 T his Court’s unreported memorandum opinions may be cited “for [their] persuasiv e 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 20 th day of March , 201 8

, the York County Common

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

___________________________ ANNE E. C OVEY, Judge