IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Mark Campoli

, : Appellant :

:

v. : No. 941 C.D. 2017

: Submitt ed : November 9, 2017 Commonwealth of Pennsylvania

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

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: January 5, 2018

Richard Mark Campoli (Licensee) appeals from the June 22, 2017 Order of

the Court of Common Pleas of Delaware County (common pleas) denying his appeal

from a one

- year suspension of his operating privilege imposed by the

Commonweal th 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)

, 1 and from a one

- year disqualification of his privilege to drive a

1 Section 1547(b)(1)(i), commonly referred to as the Implied Consent Law, reads

, in pertinent part , as follows :

(1) If any person placed under arrest for a violation of section 3802 [relating to driving under influence of alcohol or controlled substance] is requested to2

commercial motor vehicle und er Section 1613(d.1) of the Vehicle Code, 75 Pa. C.S.

§ 1613(d.1)

. 2 On appeal, Licensee argues that because the officer who stopped

Licensee did not warn him that he would be subject to enhanced criminal penalties

if he refused a chemical test of his bloo d, as then ostensibly required by Section

1547(b)(2)(ii) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(2)(ii), DOT should not

have suspended his operating privilege n or disqualified hi m from driving a

commercial motor vehicle

. 3 For the reasons set forth in Garlick v. Department of

submit to chemical testing and refuses to do so, the testing shall not be conducted but up on 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 Section 1613(d.1) states, in relevant part , as follows:

Upon receipt of a report of test refusal, the department shall disqualify the person who is the subject of the report for the same period as if the department had received a report of the person’ s conviction for violating one of the offenses listed in section 1611(a) (relating to disqualification).

75 Pa. C.S. § 1613(d.1). Section 1611(a)(1) of the Vehicle Code provides, in turn, that

[u] pon receipt of a report of conviction, the department shall, in addition to any other penalties imposed under this title, disqualify any person from driving a commercial motor vehicle or school vehicle for a period of one year for the first
violation of:

. . . section 3802 (relating to driving under influence of alcohol or
controlled su bstance) . . . where t he person was a commercial driver at the time the
violation occurred.

75 Pa. C.S. § 1611(a)(1).

3 Former Section 1547(b)(2)(ii) provided as follows:

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 violating3

Transportation, Bureau of Driver Licensing , __ A.3d __, (Pa. Cmwlth.

, No. 48 C.D.

2017, filed Jan. 3 , 201 8 ) (en banc)

, slip op. at 10

- 11 , 13 , we affirm. 4

The fol lowing facts are not in dispute . DOT informed Licensee that his

oper ating privilege was suspended for one y ear as a result of his failure to submit to

a chemical test of his blood on July 30, 2016

. DOT also informed Licensee that he

was disqualified from the privilege of driving a commerci al motor vehicle for one

year. L icensee appealed to common pleas pursuant to Section 1550(a) of the Vehicle

Code, 75 Pa. C.S. § 1550(a), and a hearing was held. 5

section 3802(a)(1) [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)(ii).

4 We have set forth the legal background leading up to and following Licensee’s arrest in
Garlick , __ A.3d at __, slip op. at 2

- 5 , which we summarize here. S hortly before Licensee was stopped, the United States Supreme Court held in Birc hfield v. North Dakota

, 136 S.Ct. 2160,
2184

- 85 (2016), the following: the search

- incident

- to

- arrest exception to the warrant requirement does not justify a warrantless search of a motorist’s blood; implied consent under an implied consent law does not jus tify 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. After Licensee’s arrest, the Superior Court held, based on Birchfield , that it is “partially inaccurate” to warn a licensee that he may be subject to enhanced criminal penalties if he refuses a blood test requested under the Implied Consent Law. Commonwealth v. Evans , 153 A.3d 323, 331 (Pa. Super. 2016). Therefore, the results of such a blood test must be suppressed, and an enhanced sentence based on a licensee’s refusal to submit to such a blood test must be
vacated. Commonwealth v. Giron , 155 A.3d 635, 640 (Pa. Super. 2017). In short, “in the absence of a warrant or exigent cir cumstances justifying a search, a defendant who refuses to provide a blood sample when requested by police is not subject to . . . enhanced [ criminal ] penalties.” Id. In July 2017, the General Assembly amended Sections 1547(b)(2)(ii) and 3804(c) of the V ehicle Code, 75 Pa. C.S. § § 1547(b)(2)(ii), 3804(c), so as to eliminate enhanced criminal penalties for refusing to submit to a blood test and the warning associated therewith. Section 4 of Act of July 20, 2017, P.L. 333.

5 Section 1550(a) provides tha t “[a]ny person . . . whose operating privilege has been . . . suspended . . . by the department shall have the right to appeal to the court vested with jurisdiction of such appeals . . . .” 75 Pa. C.S. § 1550(a).4

At the hearing, testimony was presented that o n July 30, 2016, at 12:43 a.m.,

Dennis Killian, a police officer with Aston Tow nship, stopped Licensee’s vehicle

. While Officer Killian spoke with Licensee, Officer Killian noticed that Licensee was

slurring his speech and that a strong odor of alcohol was emanating from the interior

of the vehicle. When asked, Licensee acknowledge d that he had been drinking.

Officer Killian administered field sobriety tests to Licensee, which Licensee failed

. As a result, Officer Killian arrested Licensee.

Officer Ki llian then read to Licensee DOT Form DL

- 26 B, which advised

Licensee 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.

3. If you refuse to submit to the blood test, your oper ating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months.

4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to a blood test, you will have refused the test.

(Reproduced R ecord (R.R.) at 49a.) It is undisputed that Officer Killian did not warn

Lic ensee that if he refused a chemical test of his blood he would be subject to

enhanced criminal penalties even though, at that time, the language of Section

1547(b)(2)(ii) ostensib ly still required it

. After Officer Killian read Form DL

- 26 B

to Licensee, Licensee refused to submit to a draw of his blood. Officer Killian again5

read Form DL

- 26 B to Licensee at the stationhouse, but Licensee again refused to

submit to a blood test.

Following the hearing, Licensee submitted a memorandum arguing that the

omission in Form DL

- 26 B , in not warning Licensee that his refusal would subject

him to enhanced criminal penalties, violated Section 1547(b)(2) (ii) and, thus, DOT

did not meet its burd en of proving that Licensee was properly and adequately

warned. Licensee noted that DOT amended Form DL

- 26 B to remove the warning

required by Section 1547(b)(2)(ii) following the decision of the United States

Supreme Court in Birchfield v. North Dakota

, 1 36 S. Ct. 2160 (2016)

. However, the

language of Section 1547(b)(2)(ii) is mandatory, Licensee argued, and it is up to the

General Assembly , not DOT, to decide what warnings must be given to a licensee

under the Implied Consent Law.

In the Order dated June 22, 2017, common p leas denied Licensee’s appeal and

reinstated the suspension of his operating privilege and disqualification of his

privilege to operate a commercial motor vehicle . ( Common Pleas Order, June 22,

2017 .)

On appeal, 6 Licensee does not contest whether there were reasonable grounds

for his arrest, whether he was asked to submit to a chemical test, or whether he

refused to do so. Rather, the sole issue Licensee present s is whether the omission

from Form DL

- 26 B that he would be subject to enhanced criminal penalties violated

Section 1547(b)(2)(ii) such that DOT did not meet its burden of proof and, thus, his

operating privilege s should not have been suspended

. Licensee asse r ts that DOT has

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. Reinhart v. Dep’t of Transp., Bureau of Driver Licensing , 954 A.2d 761, 765 n.3 (Pa. Cmwlth. 2008).6

no authority to rewrite Section 1547(b)(2)(ii), a nd that , until the General Assembly

amended Section 1547(b)(2)(ii), DOT had to follow that provision even after the

decision in Birchfield

. The argument Licensee raises is the same as was raised in Garlick , __ A.3d at

__ , slip op. at 8

- 9. For the reas ons set forth in Garlick

, __ A.3d at __, slip op. at 10

- 11, 13, we conclude that DOT met its burden of proving that Licensee was

specifically warned about the consequences of refusing a blood test , that is, the

suspension of his license

. 7 See Martinovic v. Dep’t of Trans p ., Bureau of Driver

Licensing , 881 A.2d 30, 34 (Pa. Cmwlth. 2005) (noting that in order for DOT to
meet its prima facie burden establishing its entitlement to suspend a licensee’s

operating privilege, DOT must show, inter alia , that the l icensee was “specifically
warned” about the consequences of refusing a chemical test). Post

- Birchfield

, enhanced criminal penalties for refusing a blood test requested under the Implied

Consent Law are no longer constitutionally permissible and, thus, not a permissible

consequence of such a ref usal. Even though the General Assembly did not

immediately amend Section 1547(b)(2)(ii) following Birchfield , the effect of

Birchfield was to render the criminal penalties warned of in Section 1547(b)(2)(ii)

as appl ied to blood testing unenforceable and to effectively sever that section from

the rest of the Vehicle Code. See Section 1925 of the Statutory Construction Act of
1972, 1 Pa. C.S. § 1925 (“The provisions of every statute shall be severable” with

certain ex ceptions not applicable here). Therefore, common pleas properly denied
Licensee’s appeal.

Accordingly, the June 22

, 2017 Order of common pleas is affirmed

.

7 The same issue was also raised in Spellman v. Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth.

, No. 124 C.D. 2017, filed Jan. 3, 201 8 ) (en banc) , slip op. at 1

- 2

.7 _____________________________________ RENÉE COHN JUBELIRER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Mark Campoli, : Appellant :

:

v. : No. 941 C.D. 2017

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

O R D E R

NOW

, January 5, 2018 , the O rder of the Court of Common Pleas of Delaware

County, dated June 22, 201 7 , is AFFIRMED

.

_____________________________________ RENÉE COHN JUBELIRER, Judge