J-A07005-19

2019 PA Super 159

____________________________________

* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

LORI KLINER KRENZEL 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2049 EDA 2018

Appeal from the Judgment of Sentence Entered June 12, 2018

In the Court of Common Pleas of Chester County Criminal Division at 

No(s): CP-15-CR-0000445-2017

BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY OLSON, J.: FILED MAY 20, 2019

Appellant, Lori Kliner Krenzel, appeals from the judgment of sentence 

entered on June 12, 2018, following her bench trial conviction for driving 

under the influence of alcohol – highest rate (DUI) pursuant to 75 Pa.C.S.A. 

§ 3802(c). On appeal, Appellant challenges the trial court’s denial of her 

motion to suppress. For the reasons that follow, we are constrained to vacate 

the judgment of sentence, reverse the order denying suppression, and remand 

for a new trial.

The trial court summarized the facts and procedural history of this case 

as follows:

On November 14, 2016, Appellant was pulled over by Officer Kyle 

Maye and Officer [Robert] Gilbert as the result of her erratic 

driving behavior that was called in by another motorist. Officer 

Maye observed Appellant to have glassy and bloodshot eyes, her 

speech was slow and soft, and her movements in the vehicle were 

slow and sluggish. Officer Gilbert discovered two beer bottles in 

the passenger side area of Appellant’s vehicle. Officer Maye 

requested that Appellant exit the vehicle, at which time he 
J-A07005-19

- 2 -

detected the odor of alcohol. He then conducted a series of field 

sobriety tests, the results of which indicated that Appellant was 

under the influence of alcohol and/or controlled substances. 

Officer Maye asked if Appellant was willing to submit to a blood 

test. Appellant consented. She was then placed under arrest and 

transported to Chester County Hospital where her blood was 

drawn within the appropriate two-hour limit. 

During the stop, Officer Maye did not draw a weapon. Officer 

Maye did not advise Appellant that she would face enhanced 

penalties if she refused [a blood draw]. In her pre-trial motion to 

suppress, Appellant argued that as the result of a previous arrest 

for DUI in 2013, she understood that refusal of the blood draw 

would subject her to adverse criminal penalties. Appellant’s basis 

for consent was not communicated to Officer Maye; therefore, 

Officer Maye had no knowledge that her consent was based upon 

Appellant’s outdated understanding of Pennsylvania law. Officer 

Maye neither provided Appellant with misleading or false 

information in order to get Appellant to consent nor did he use 

any threat of force or coercion.

Appellant filed a [m]otion to [s]uppress on May 1, 2017. Following 

a hearing held on March 22, 2018, the [trial] court denied the 

motion by [o]rder dated March 23, 2018. A bench trial was held 

on April 4, 2018. A verdict was delivered on April 18, 2018, finding 

[] Appellant guilty of [DUI] in violation of 75 Pa.C.S.A. § 3802(c). 

Appellant’s sentencing was deferred for consideration of the 

Intermediate Punishment Program (IPP). On June 12, 2018, 

Appellant was sentenced to IPP which included 15 days of 

incarceration, 75 days of electronic home confinement and 

probation, community service[,] and a fine. 

Trial Court Opinion, 8/3/2018, at 1-3 (record citations omitted). This timely 

appeal resulted.1 

On appeal, Appellant presents the following issue for our review:

____________________________________________

1

 Appellant filed a notice of appeal on July 10, 2018. On July 17, 2018, the 

trial court ordered Appellant to file a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. The 

trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 3, 2018.
J-A07005-19

- 3 -

1. Did not the [trial] court err in denying Appellant’s motion to 

suppress, under the federal and state constitutions, the test 

results of a warrantless blood draw where Appellant’s alleged 

consent to the blood draw was not voluntary under the totality of 

the circumstances?

Appellant’s Brief at 4.

In developing her claim, Appellant points out that her blood draw 

constituted a police search, that police drew her blood without a warrant, and, 

therefore, the blood draw was only valid if her consent were voluntary. Id.

at 9. Appellant maintains that her consent was not voluntary for several 

reasons. First, Appellant posits that she had a previous arrest for DUI in 2013 

and, at that time, refusal of a blood test subjected DUI offenders to more 

severe criminal penalties. Id. at 11-12. Appellant argues that her consent 

for the blood draw at issue here was based on her prior knowledge of 

Pennsylvania law and that her “subjective [belief] regarding her ability to 

refuse to consent to a search” should be considered as part of the totality of 

the circumstances in evaluating the voluntariness of her consent. Id. at 12. 

Next, Appellant contends that because she was in police custody at the time 

of the requested blood draw, her consent was not voluntary. Id. at 14-16. 

Finally, Appellant argues that her consent was involuntary, as the police never 

advised her of her right to refuse the blood draw. Id. at 16-19.

We adhere to the following standards:

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether the 

suppression court's factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before the 
J-A07005-19

- 4 -

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record as 

a whole. Where the suppression court's factual findings are 

supported by the record, we are bound by these findings and may 

reverse only if the court's legal conclusions are erroneous. The 

suppression court's legal conclusions are not binding on an 

appellate court, whose duty it is to determine if the suppression 

court properly applied the law to the facts. Thus, the [trial court’s] 

conclusions of law [] are subject to our plenary review.

Moreover, appellate courts are limited to reviewing only the 

evidence presented at the suppression hearing when examining a 

ruling on a pre-trial motion to suppress.

Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (internal 

citation omitted).

Initially, we set forth fundamental law with regard to warrantless blood 

draws and consent as follows:

In Birchfield [v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160 

(2016)], the Supreme Court of the United States held that criminal 

penalties imposed on individuals who refuse to submit to a 

warrantless blood test violate the Fourth Amendment (as 

incorporated into the Fourteenth Amendment). Within one week 

of that decision, [the Pennsylvania Department of Transportation] 

revised the [standard consent form used by police, known as the] 

DL–26 form[,] to remove the warnings mandated by 75 Pa.C.S.A. 

§ 3804 that theretofore informed individuals suspected of DUI that 

they would face enhanced criminal penalties if they refused to 

submit to a blood test in order to comply with Birchfield. [The] 

revised form [is] known as Form DL–26B[.]

***

This Court subsequently held that [] enhanced criminal penalties 

[imposed] for failure to consent to a blood draw constituted an 

illegal sentence because of Birchfield. See Commonwealth v. 

Giron, 155 A.3d 635, 639 (Pa. Super. 2017).
J-A07005-19

- 5 -

On July 20, 2017, Governor Thomas W. Wolf signed into law Act 

30 of 2017, which amended 75 Pa.C.S.A. § 3804 to comport with 

Birchfield. Specifically, Act 30 provides for enhanced criminal 

penalties for individuals who refuse to submit to blood tests only 

when police have obtained a search warrant for the suspect's 

blood. See 75 Pa.C.S.A. § 3804(c). Hence, from July 20, 2017 

onwards the DL–26B form conforms to the revised statutory law.

Commonwealth v. Venable, 200 A.3d 490, 495 (Pa. Super. 2018) (original 

brackets omitted).

With this backdrop in mind, we turn to Appellant’s claim that her consent 

was involuntary, and thus, invalid. In examining whether consent is 

voluntary, we note:

In determining the validity of a given consent, the Commonwealth 

bears the burden of establishing that a consent is the product of 

an essentially free and unconstrained choice—not the result of 

duress or coercion, express or implied, or a will overborne—under 

the totality of the circumstances. The standard for measuring the 

scope of a person's consent is based on an objective evaluation of 

what a reasonable person would have understood by the exchange 

between the officer and the person who gave the consent. Such 

evaluation includes an objective examination of the maturity, 

sophistication and mental or emotional state of the defendant. 

Gauging the scope of a defendant's consent is an inherent and 

necessary part of the process of determining, on the totality of the 

circumstances presented, whether the consent is objectively valid, 

or instead the product of coercion, deceit, or misrepresentation.

While there is no hard and fast list of factors evincing 

voluntariness, some considerations include: 1) the defendant's 

custodial status; 2) the use of duress or coercive tactics by law 

enforcement personnel; 3) the defendant's knowledge of his right 

to refuse to consent; 4) the defendant's education and 

intelligence; 5) the defendant's belief that no incriminating 

evidence will be found; and 6) the extent and level of the 

defendant's cooperation with the law enforcement personnel.

Id. at 497 (citations omitted).
J-A07005-19

- 6 -

First, Appellant argues that the trial court erred by not considering her 

previous knowledge of DUI law and her subjective belief regarding her ability 

to refuse consent. This Court has squarely rejected claims arguing that 

“awareness of pre-Birchfield enhanced criminal penalties for refusing a blood 

draw render[s a] blood draw involuntary[,]” having opined as follows:

[I]t is not necessary that the police completely review changes in 

the law, from the time of a motorist's previous arrest or 

DUI-related schooling until the motorist's next traffic stop. [An 

appellant’s] ignorance of the most recent Supreme Court 

decisional law did not impose upon the police [] an affirmative 

duty to provide her with an update on criminal procedure prior to 

requesting a blood-draw. Neither our state nor the federal 

constitution compels our police officers to serve as road-side law 

professors.

Given the foregoing, [an appellant’s] personal failure to realize 

that the Supreme Court's issuance of Birchfield struck down 

§ 3804(c)'s enhanced criminal penalties is irrelevant. [...Believing] 

that our Commonwealth's enhanced penalties remained in full 

force and effect [... was a m]isconception [] predicated upon a 

fundamentally flawed view of our federalism.

Id. at 496-497 (Pa. Super. 2018), citing Commonwealth v. Johnson, 188 

A.3d 486, 491 (Pa. Super. 2018) (finding that Johnson's ignorance of 

constitutional law did not render her consent involuntary); Commonwealth 

v. Miller, 186 A.3d 448, 452 (Pa. Super. 2018) (“Repeat DUI offenders, owing 

to past legal transgressions, are not entitled to a benefit that would be 

unavailable to first-time DUI offenders. ... The absurdity of [such an] 

argument is self-evident.”). Here, Appellant’s subjective belief about the state 

of the law regarding enhanced penalties was irrelevant. We reject Appellant’s 

reliance on her subjective, erroneous misunderstanding of constitutional law, 
J-A07005-19

- 7 -

as that did not render her consent involuntary. See Venable, Johnson, and

Miller. As such, the first portion of Appellant’s argument fails. 

Next, Appellant asserts that police conducted the blood draw while she 

was in custody and they never informed her of the right to refuse consent 

under 75 Pa.C.S.A. § 1547(b)(2). Id. at 14-18. We consider custodial status, 

but it is not dispositive. 

Finally, we consider Appellant’s last contention, wherein she asserts that 

a police officer’s failure to inform her of the right of refusal precluded a finding 

of voluntariness. Section 1547 is relevant to our disposition of this claim and

provides, in pertinent part:

a) General rule.--Any person who drives, operates or is in actual 

physical control of the movement of a vehicle in this 

Commonwealth shall be deemed to have given consent to one 

or more chemical tests of breath or blood for the purpose of 

determining the alcoholic content of blood or the presence of 

a controlled substance if a police officer has reasonable 

grounds to believe the person to have been driving, operating 

or in actual physical control of the movement of a vehicle in 

violation of section [...] 3802 (relating to driving under 

influence of alcohol or controlled substance)[.]

b) Civil penalties for refusal.—

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

section 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[.]

* * *

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

the person that:
J-A07005-19

- 8 -

(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 breath 

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).

75 Pa.C.S.A. § 1547 (emphasis added).

Our Supreme Court examined Section 1547 in Commonwealth v. 

Myers, 164 A.3d 1162 (Pa. 2017), a case wherein the defendant who was 

arrested on suspected DUI charges was unconscious in the hospital when a 

police officer read him consent forms and then directed hospital personnel to 

conduct a blood draw. The Myers Court determined:

[O]nce a police officer establishes reasonable grounds to suspect 

that a motorist has committed a DUI offense, that motorist “shall 

be deemed to have given consent to one or more chemical tests 

of breath or blood for the purpose of determining the alcoholic 

content of blood or the presence of a controlled substance.” 75 

Pa.C.S.A. § 1547(a). Notwithstanding this provision, Subsection 

1547(b)(1) confers upon all individuals under arrest for DUI an 

explicit statutory right to refuse chemical testing, the invocation 

of which triggers specified consequences. See 75 Pa.C.S.A.

§ 1547(b)(1) (“If any person placed under arrest for DUI is 

requested to submit to chemical testing and refuses to do so, the 

testing shall not be conducted[.]”).

Under this statutory scheme, a motorist placed under arrest for 

DUI has a critical decision to make. The arrestee may submit to a 

chemical test and provide the police with evidence that may be 

used in a subsequent criminal prosecution, or the arrestee may 

invoke the statutory right to refuse testing, which: (i) results in a 

mandatory driver's license suspension under 75 Pa.C.S.A.

§ 1547(b)(1); (ii) renders the fact of refusal admissible as
J-A07005-19

- 9 -

evidence in a subsequent DUI prosecution pursuant to 75 

Pa.C.S.A. § 1547(e); and (iii) authorizes heightened criminal 

penalties under 75 Pa.C.S.A. § 3804(c) if the arrestee later is 

convicted of DUI. In very certain terms, [the Supreme] Court 

has held that, in requesting a chemical test, the police 

officer must inform the arrestee of the consequences of 

refusal and notify the arrestee that there is no right to 

consult with an attorney before making a decision. See

[Com., Dept. of Transp., Bureau of Traffic Safety v.] 

O'Connell, 555 A.2d [873,] 877–878 (Pa. 1989). “An arrestee 

is entitled to this information so that his choice to take a 

chemical test can be knowing and conscious.” Id. at 878. 

The choice belongs to the arrestee, not the police officer.

Myers, 164 A.3d at 1170–1171 (some case citations, original brackets, and 

footnote omitted) (emphasis added). The Myers Court further noted that 75 

Pa.C.S.A. § 1547 expressly “states that, ‘[i]t shall be the duty of the police 

officer’ to inform the arrestee of the consequences of refusal.” Id. at 1175 

n.12, citing 75 Pa.C.S.A. § 1547(b)(2). Our Supreme Court held that “[t]his 

unambiguous statutory command leaves no doubt regarding the obligations 

of the police officer requesting the arrestee’s submission to a chemical test.” 

Id. (citation omitted). 

Here, the trial court determined:

In the case at bar, argument at the suppression hearing 

established that Officer May never warned that Appellant would 

be subjected to criminal penalties upon her refusal to submit to a 

blood draw. Appellant was not coerced by the drawing of weapons 

or threats made against her by Officer Maye. There is no dispute 

as to these facts. Officer Maye did not read any part of the 

DL-26 implied consent form to Appellant. He simply asked 

her for consent and she freely gave it. Argument at the 

hearing, however, established that Appellant was informed during 

a prior DUI arrest (prior to the Supreme Court’s decision in 

Birchfield) that her refusal would result in adverse criminal 
J-A07005-19

- 10 -

penalties. Appellant did not communicate her belief to Officer 

Maye, who could have corrected this erroneous understanding. 

Based upon the totality of the circumstances of the interaction 

between Officer Maye and Appellant on the night in question, the 

[trial] court determined that Appellant’s consent was voluntary, 

knowing and intelligent. [...The trial court’s] standard for 

measuring the scope of a person’s consent is based on an 

objective evaluation of what a reasonable person would have 

understood by the exchange between the officer and the person 

who gave the consent. Objectivity is key and the court must use 

a ‘reasonable person’ standard. It is a slippery slope when the 

court and law enforcement are required to consider the subjective 

views of each individual defendant, i.e., the thoughts inside their 

head, to determine whether consent is voluntary. Such a 

proposition requires getting into the mind of the defendant, at the 

time of the arrest and when the individual is impaired, to 

subjectively assess her knowledge and understanding of the law. 

This approach would inevitably give rise to a host of other 

problems. 

Since Appellant was not advised of any adverse criminal 

consequences or increased penalties for failing to submit to a 

blood test, Birchfield does not apply. Appellant never 

communicated that her consent was based upon her belief that 

criminal penalties could be imposed for her refusal; as a result, 

Officer Maye could not have known. Unless she was given 

misleading or false information by the arresting officer (which she 

was not) or subject to some sort of coercion, Appellant’s consent 

is deemed to be knowing and voluntary. As a result, the trial court 

denied the motion to suppress. This was neither an error of law 

nor an abuse of discretion. 

Trial Court Opinion, 8/3/2018, at 5-6 (some emphasis added; some emphasis 

in original; record and legal citations omitted). 

Although the trial court correctly rejected Appellant’s subjective 

understanding of Pennsylvania law as grounds for invalidating her consent, 

we conclude that, in view of Section 1547 and Myers, the trial court erred as 

a matter of law in finding Appellant’s consent to a blood draw was voluntary. 
J-A07005-19

- 11 -

In determining whether Appellant’s consent was voluntary, the trial court 

considered the various factors as set forth above and concluded that while 

Appellant was in custody and not specifically informed of her rights regarding 

consent, police did not coerce her and she fully cooperated with police, 

answering all questions and complying with field sobriety tests. However, 

there is no dispute that the police asked Appellant to go to the hospital for a 

chemical blood test and she complied without receiving a recitation of her 

rights under DL-26B or Section 1547 or confirming her consent by signature. 

See N.T. 3/20/2018, at 7. Because Officer Maye was statutorily obligated to 

inform Appellant of her right to refuse chemical testing and the consequences

arising therefrom and failed to effectuate those precautions, Appellant did not 

make a knowing and conscious choice of whether to submit to the blood draw. 

The choice belonged to Appellant, not Officer Maye. See Myers. Thus, while 

the trial court is correct that the officers did not mislead Appellant, the record 

is equally clear that they did not convey the information necessary for her to 

make an informed decision.2 As such, we find that the trial court erred as a 

matter of law in denying suppression. 

____________________________________________

2 To be clear, in this case, no information regarding the consequences of 

refusal was conveyed to the suspect. In such circumstances, the rule in Myers

of mandatory warnings should be followed. This is in contrast to a situation 

in which given warnings differ from those conveyed during prior DUI 

encounters. In those cases, given warnings generally prevail and reliance on 

previous police interactions does not weigh against voluntariness. See 

Venable, Johnson, and Miller.
J-A07005-19

- 12 -

Judgment of sentence vacated. Order denying suppression reversed. 

Case remanded for a new trial. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/19