IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David S. Richardson, :

: Appellant :

:

v. : No. 681 C.D. 2018

: Argued: April 9, 2019 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: October 28, 2019

David S. Richardson (Licensee) appeals an order of the Court of

Common Pleas of Lebanon County (trial court) dismissing his appeal of a one

- year

suspension of his operating privilege imposed by the Department of Transportation,

Bureau of Driver Licensing (Department) pursuant to Section 1547(b) (1)(i) of the

Vehicle Code, 1 commonly known as the Implied Consent Law, for refusing a b lood

1 75 Pa. C.S. §1547(b)(1)(i), which states:

(1) If any person placed under arrest for a violation of [S ection 380 2

of the Vehicle Code , 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

. . . for a period of 12

mon ths.2

test

. Licensee argues that his license suspension must be set aside b ecause he was

not warned of the enhanced criminal penalties for refusing a blood test

. We affirm.

On June 7 , 2017, the Department notified Licensee that his operating

privi lege was suspended for one year for refusing to submit to a blood test. Licensee

appealed, asserting that the license suspension was i nvalid because (1) the police

officer did not have reasonable g rounds to request him to submit to chemical testing

and (2) the police officer did not comply with h is statutory duty under former Section

1547(b)(2) of the Vehicle Code, former 75 Pa. C.S. §1547(b)(2), to inform Licensee

that a refusal would subject him t o enhanced criminal penalties

. Reproduced Record

( R.R. ) at 5.

The trial court held a hearing on September 26, 2017. The D epartment

submitted a packet of documents that was admitted without objection. The parties

stipulate d to the following facts. On May 28, 2017, Licensee was arrested by a

police officer who had reasonable grounds to suspect that Licensee was driving or

in physical control of a vehicle while under the influence of alcohol (DUI) in

violation of Section 3802 of the Vehicle Code, 75 P a. C.S. §3802. Licensee was

asked to submit to a chemical test of his blood. He refused

, and a police officer read

the implied consent warnings as they appear on form DL

- 26B. 2 R.R. at 14

- 15

. Neither party pr esented oral argument.

On April 17, 2018, t he trial court entered an order dismissing

Licensee’s appeal and reinstating Licensee’s suspension . R.R. at 19. In doing so,

t he trial court specifically relied on the parties’ stipulation of facts and th is Court’s

decisions in Garlick v. Department of Transportation, Bureau of Driver Licensing

,

2 D epartment’s Ex hibit 2.3

176 A.3d 1030 (Pa. Cmwlth. 2018), and Negovan v. Department of Transportation,

Bureau of Driver Licensing , 172 A. 3d 733 (Pa. Cmwlth. 2017). R.R. at 19, 32.

On appeal to this Court

, 3 Licensee first argues that, b ecause the implied

consent warnings read to him did not notify him that he would be subjected to

enhanced criminal penalties if he refused the chemical blood test , the warning failed

to satisfy the requirements of former Section 1547(b) (2) (ii) of the Vehic le Code,

former 75 Pa. C.S §1547(b) (2) (ii), 4 render ing his suspension invalid. Licensee also

argues that former Section 1547(b)(2)(ii) is not severable from the Vehicle Code.

However, on June 23, 2016 the United States Supreme Court rendered its

decisio n in Birchfield v. North Dakota , ___ U.S.

___, 136 S. Ct. 2160 (2016)

, holding that the Fourth Amendment to the United States Constitution does not permit

warrantless blood tests incident to arrests for DUI and that criminal penalties cannot

3 Our scope of review is limited to determining whether necessary findings of the trial court
are supported by substantial evidence and whether the trial court committed an error of law or

abused its discretion. Martinovic v. Department of Transportation, Bureau of Driver Licensing

, 881 A.2d 30, 34 n.6 (Pa. Cmwlth. 2005). 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 ).

4 A t the time of Licensee’s arrest, f ormer Section 1547(b)(2) stated :

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) 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 penalties provided in section 3804(c) (relating to
penalties).

Former 75 Pa. C.S. §1547(b)(2).4

be imposed upon a motorist who refuses a blood test without a search warrant.

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

exigent circumstances justifying a search, a defendant who refuses to provide a

blood sample when re quested 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 Department created two separate DL

- 26 forms, one

used for breath tests and the other f or blood tests. As reflected on the Department’s

Exhibit C, the new form for blood tests no longer states that a refusal will subject a

licensee to enhanced criminal penalties. On July 20, 2017, the General Assembly

amended Section 1547(b)(2)(ii) , which now applies if a person “refuses to submit to

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

.

W hile the former version of Section 1547 was in effect at the time of

Licensee’s arrest, Birchfield prohibited its implementation. Never theless

, Licensee

argues that because the statute had not been amended at the time of his arrest,

authorities had to continue applying former Section 1547 in its entirety, including

the warning regarding enhanced criminal penalties for refusal of chemical testing.

Licensee’s argument s are identical to th ose rejected by this Court in

Garlick

. Therein, we held that Birchfield rendered the enhanced criminal penalties

in former Section 1547(b)(2)(ii) of the Vehicle Code unenforceable and t hat former

Section 1547(b)(2)(ii) is severable from the remainder of the statu t e.

Simply stated, enhanced criminal penalties were not a consequence of Licensee’s refusing the requested blood test. Licensee’s argument is, in effect, that because the General Assembly did not immediately amend Section 1547(b)(2)(ii), [the Department] and the police had to continue to apply Section 1547(b)(2)(ii). However, the effect of Birchfield and the Superior Court cases that followed was to render the criminal penalties warned of in Section 1547(b)(2)(ii) as applied to blood5 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 (“[t]he provisions of every statute shall be severable” with certain exceptions not applicable here); Common wealth v. Batts , 163 A.3d 410, 441 (Pa. 2017) (emphasis added) (stating that “[i]f a provision of a statute

is invalidated for any reason . . . a court must sever it from the remaining, valid portion of the statute”).

Garlick , 176 A.3d at 1036. Applying our holding in Garlick

, we conclude

that the tria l co u r t did n ot err in denying Licensee’s appeal.

Accordingly, we affirm.

MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

David S. Richardson, :

: Appellant :

:

v. : No. 681 C.D. 2018

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

O R D E R

AND NOW, this 28 th day of October , 201 9

, the order of the Court of

Common Pleas o f Lebanon County, dated April 1 7, 2018, is AFFIRMED.

__________________________________ MICHAEL H. WOJCIK, Judge