J-A09001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

OLUBAYA RANGER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 618 WDA 2017

Appeal from the Order February 22, 2017

In the Court of Common Pleas of Blair County Criminal Division at No(s): 

CP-07-CR-0002549-2016

BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

MEMORANDUM BY BOWES, J.: FILED JUNE 22, 2018

Olubaya Ranger appeals from the order denying his motion to suppress 

blood alcohol content (“BAC”) test results obtained without a warrant during 

a driving under the influence (“DUI”) investigation.

1

 We affirm.

On November 20, 2016, Altoona Police Officer Jon Burns observed 

Appellant speeding and driving erratically, and initiated a traffic stop. The 

officer asked Appellant to perform field sobriety tests, which he performed 

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1 Appellant timely moved the trial court to certify the interlocutory suppression 

order for our review pursuant to 42 Pa.C.S. § 702(b). The trial court denied 

the request, and Appellant timely filed a petition for permission to appeal in

this Court pursuant to Pa.R.A.P. 1311. We treated Appellant’s petition as a 

petition for review and granted it, per curiam. This timely appeal of the 

suppression order followed. 
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poorly. Appellant was then arrested and taken to Altoona Hospital for a blood 

test. The officer read to Appellant the Pennsylvania Department of 

Transportation DL-26B waiver of rights form (“the DL-26B form”), as revised 

in June 2016.2 Appellant thereafter consented to have his blood drawn and

signed the DL-26B form. Test results indicated a BAC of .202%. Appellant 

was charged with DUI—highest rate of alcohol, and various drug-related and 

Vehicle Code violations. 

Appellant moved to suppress the BAC evidence on the basis that, 

because no warrant was obtained to test his blood, his Fourth Amendment 

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2 Specifically, the DL-26B form that was read to Appellant provided in relevant 

part as follows:

It is my duty as a police officer to inform you of the following:

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 a blood test, your operating privileges 

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 to 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. 

DL-26B Form. 
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rights were violated pursuant to Birchfield v. North Dakota, 136 S. Ct. 2160 

(2016), requiring suppression of the BAC test results. At a suppression 

hearing, the Commonwealth and the defense stipulated to the above facts. 

The parties then submitted briefs, after which the trial court issued an order 

denying suppression on the basis that the DL-26B form was accurate, and the 

Commonwealth met its burden of proving that Appellant’s consent to the 

search was voluntary under a totality of the circumstances analysis. This 

timely appeal followed.

On appeal, Appellant raises the following issues for our review:

1. Whether the new DL-26B form renders consent to blood draw 

voluntary and if it is in violation of Birchfield v. North 

Dakota, and Commonwealth v. Myers[, 164 A.3d 1162 (Pa. 

2017)]?

2. Whether the new DL-26B form violates the Fourth Amendment

right of the United States Constitution and Article 1, Section 8 

of the Pennsylvania Constitution[?]

Appellant’s brief at 4.

Appellant’s issues challenge the trial court’s denial of his motion to 

suppress the BAC test results on the ground that his consent was invalid. In 

addressing a challenge to the denial of a suppression motion,

Our standard of review . . . is limited to determining whether the 

factual findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. We are bound by 

the suppression court’s factual findings so long as they are 

supported by the record; our standard of review on questions of 

law is de novo. Where, as here, the defendant is appealing the 

ruling of the suppression court, we may consider only the evidence 

of the Commonwealth and so much of the evidence for the defense 
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as remains uncontradicted. Our scope of review of suppression 

rulings includes only the suppression hearing record . . ..

Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017) (citations 

omitted). 

Preliminarily, we review the legal and administrative developments 

regarding Pennsylvania’s DUI laws over the past two years. In June of 2016, 

the Supreme Court of the United States in Birchfield 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. Birchfield, supra at 2185-86. This Court subsequently held 

that the imposition of enhanced criminal penalties for failure to consent to a 

blood test constituted an illegal sentence under Birchfield. See

Commonwealth v. Giron, 155 A.3d 635, 639 (Pa.Super. 2017).

Within one week of the Birchfield decision, PennDOT revised the DL26 form to remove the warnings mandated by 75 Pa.C.S. § 3804(c), that 

informed individuals suspected of DUI that they would face enhanced criminal 

penalties if they refused to submit to a blood test. This revised DL-26B form,

which does not include warnings regarding enhanced criminal penalties,

complies with Birchfield. Despite the creation of the DL-26B form in the 

wake of Birchfield, numerous cases pending before trial and appellate courts 

involved defendants who were given the warnings contained in the original 

DL-26 form that erroneously informed them that they would face enhanced 

criminal penalties if they refused to submit to a blood test. This Court 
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ultimately held that the DL-26 form warnings read to defendants prior to 

PennDOT’s revision were partially inaccurate. See Commonwealth v.

Evans, 153 A.3d 323, 331 (Pa.Super. 2016) (“Since Birchfield held that a 

state may not ‘impose criminal penalties on the refusal to submit to [a 

warrantless blood] test,’ the police officer’s advisory to [a]ppellant [that 

refusal to submit to the test could subject appellant to more severe penalties 

set forth in 75 Pa.C.S. § 3804(c)] was partially inaccurate.”). Thus, when 

evaluating whether a defendant’s consent to a blood draw was voluntary or 

involuntary, trial courts are required to consider the totality of the 

circumstances, including whether the defendant was given inaccurate 

information regarding the criminal consequences of refusing to submit to a 

blood test. Id. (citing Birchfield, supra at 2186). 

On July 20, 2017, Governor Thomas W. Wolf signed into law Act 30 of 

2017, which amended 75 Pa.C.S. § 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. § 3804(c). Hence, from July 

20, 2017, and thereafter, the DL-26B form conforms to statutory law. 

However, for approximately the prior thirteen months, including at the time 

of Appellant’s arrest, the DL-26B form warnings were consistent with the law 

as interpreted by the Supreme Court of the United States and this Court, but 

inconsistent with the unconstitutional provisions of Title 75.
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With this background, we turn to Appellant’s issues, which we will 

address together. Appellant argues that despite the elimination in the DL-26B 

form of any reference to the imposition of criminal penalties for refusing to 

consent to a blood test, criminal penalties still attached to such a refusal under 

then-existing Pennsylvania law because Appellant was arrested before 

subsection 3804(c) was amended to comport with Birchfield. On this basis, 

Appellant contends that his consent to the blood test was not voluntary 

because he was not advised that criminal penalties would attach under 

subsection 3804(c) if he was convicted of DUI after refusing the blood test. 

Appellant's arguments lack merit. It is well established that when a 

statute is deemed unconstitutional, it is ineffective for any purpose and it is 

as if it were never enacted. See Commonwealth v. Wolfe, 140 A.3d 651, 

66 (Pa. 2016); see also 16 C.J.S. CONSTITUTIONAL LAW § 265 (2016) 

(reciting the general rule that an unconstitutional, non-severable statute is 

“not a law, has no existence, is a nullity, or has no force or effect or is 

inoperative” (footnotes omitted)). Thus, even though subsection 3804(c) had 

not yet been amended at the time of Appellant’s arrest, it was nevertheless a 

legal nullity pursuant to Birchfield. See Commonwealth v. Smith, 177 

A.3d 915, 921 (Pa.Super. 2017) (“To reiterate, the decision in Birchfield, 

which was controlling law at the time of Appellant’s arrest, prohibited states 

from imposing criminal penalties upon an individual’s refusal to submit to a 

warrantless blood test.”). Accordingly, the trial court correctly determined 
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that the language contained in the revised DL-26B form was a correct 

statement of the law in accordance with Birchfield when Officer Burns read 

it to Appellant. See Trial Court Opinion, 2/6/17, at 6. 

Notably, Appellant does not contend that his consent was involuntary 

for any reason other than that he was not advised of the criminal penalties of 

subsection 3804(c) which were deemed unconstitutional by Birchfield. Based 

on our review of the record, we agree with the trial court’s determination that, 

under the totality of the circumstances, Appellant’s consent was voluntary. 

See Trial Court Opinion, 2/6/17, at 7. We therefore conclude that the trial 

court did not err in denying Appellant’s motion to suppress the results of his

BAC test.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/2018

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3

If, upon remand, Appellant is convicted of DUI, he cannot be sentenced 

under the prior version of 75 Pa.C.S. § 3804, and will instead be sentenced 

under the amended version of the statute, which complies with Birchfield.