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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

SHANE ROBERT VAVRICK

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 237 MDA 2018 Appeal from the Order Entered November 21, 2017 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0000542

- 2017

BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J. MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2018 Shane Robert Vavrick 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

. The parti es stipulated to the following factual history of the case. At approximately 2:50 a.m. on December 1 1 , 2017, Officer Mike Williams of the State College Police Department initiated a traffic stop after observ ing Appellant’s car swerv ing in and out of his l ane of travel. Upon approaching the vehicle, the officer detected a strong smell of alcohol e manating from

_________________ __________ ______ ____ _______ 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 granted the request, and Appellant timely filed a petition for permission to appeal in this Court pursuant to Pa.R.A.P. 1311 (b) . We granted Appellant’s petition, per curiam , and this timely appeal of the suppression order foll owed.J

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inside the vehicle, and observed that Appellant’s eyes were watery and bloodshot. Appellant admitted that he had been drinking earlier in the
eveni ng. Appellant agreed to perform standard field sobriety tests, which he failed. A preliminary breath test administered to Appellant yielded a positive result for the presence of alcohol. Appellant was arrested and transported to Mount Nittany Medical C enter for BAC testing. 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

_________________ __________ ______ ____ _______ 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 su bstance 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 a n 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.J

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and signed the DL

- 26B fo rm. Officer Williams did not warn Appellant of any other penalties beyond what was contained in the DL

- 26B form , which made no reference to any criminal penalties

. Nor did Officer Williams advise Appellant that no enhanced criminal penalties would apply i f Appellant refused the blood draw. Appellant was not threatened by Officer Williams to submit to the blood draw. The test results indicated a BAC of .129%. Appellant was charged with
DUI

— high rate of alcohol , DUI

— general impairment, and disregarding traffic lane

. On July 20 , 2017, he filed a motion to suppress the BAC test results on the basis that, because no warrant was obtained to test h is blood, h is Fourth Amendment rights were violated pursuant to Birchfield v. North Dakota , 136 S. Ct. 2160 (201 6) . The trial court conducted a suppression hearing , after which the parties submitted brief s in support of their respective positions . On November 21 , 2017, the trial court entered an order denying suppression. This timely appeal followed. On appeal, A ppellant raises the following issue for our review: “Was [Appellant’ s ] consent to the blood draw unconstitutional pursuant to the Fourth Amendment to the United States Constitution and Article I , Section 8 of the Pennsylvania Constitution?” Appellant’s brief at 5. Appellant challenge s the trial court ’ s denial of his motion to suppress the BAC test results on the ground that h is consent was invalid. In addressing a challenge to the denial of a suppression motion ,J

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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 standa rd 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 as remains uncontradicted. Our s cope 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 warrantless blood draws cannot be justified as a search incident t o arrest, and therefore a state cannot threaten enhanced criminal penalties as a means to obtain
consent. 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).
W ithin one week of th e Birchfield decision, PennDOT revised the DL

26 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. T his revised DL

- 26B form, which d oes not include warnings regard ing enhanced criminal penalties , correctly reflects Birc hfield ’s holding. Despite the creation of the DL

- 26BJ

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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 th em that they would face enhanced criminal penalties if they refused to submit to a blood test. This Court 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 subje ct appellant to more severe penalties set forth in 75 Pa.C.S. § 3804(c)] was partially inaccurate. ” ). 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, f or approximately the prior thirteen months, including at the time of Appell ant’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, bu t inconsistent with the unconstitutional provisions of Title 75.J

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With this background, we turn to Appellant’s issue . 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 sub section 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 “expected and assumed to know the laws of this Commonwealth, including the criminal penalties if he refused to consent to a blood draw.” Appellant’s brief at 16. Appellant argues that, given his knowledge that sub section 3804 (c) had not been amended, he “was not made aware of his rights to refuse against a warrantless search since he was not informed that the enhanced criminal penalties of [ sub section 3804 (c)] would not be enforced.” Id . at 16

- 17. Appellant ’ s argument s lack merit. I t 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 1 (Pa. 2016); see al so 16 C.J.S. CONSTITUTIONAL LAW § 265 (2016) ( recit ing 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 sub section 3804 (c) had not yet been amended or specifically deemed unconstitutional by Pennsylvania appellate courts at the time of Appellant’s arrest , it was nevertheless a legalJ

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nullity pursuant to Birchfield

. See Commonwealth v. Johnson , __ A.3d

__, 2018 PA Super 133 , at *9 (Pa.Super. May 21, 2018) (holding that “ the Supreme Court of the United States ’ constitutional pronouncements have immediate and national consequence. Birchfield became the ‘ supreme Law of the Land, ’ which [appellant] and all other cit izens of the United States were presumed to know on the day that the Supreme Cour t announced it

- April 20, 2016 ”) ; see also 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. ” ).
Moreover , Appellant’s ignorance of United States c onstitutional l aw cannot invalidate h is consent to the blood draw

. Johnson , supra at *9. On the day Birchfield became law, Appellant should have known that subsection 3804(c) ’ s additional criminal sanctions were without force or effect of law, and the law constructively imports that knowledge to h im

. Id

. Therefore, Appellant’s ignorance of h is constitutional rights provides no excuse

. Id

. Accordingly , we conclude that the trial court correctly determined that the language contained in the revised DL

- 26 B f orm was a correct statement of the law in accordance with Birchfield when Officer Williams read it to Appellant. See Trial Court Opinion, 11 / 21 /17 , at 8

- 9

. Appellant next claims that his consent was invalid under the totality of the circumstances because it was given when he was under arrest and notJ

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free to leave, and he was not informed of his right to refuse the blood draw. Appellant’ s brief at 25

- 26. Under Evans , a trial court must consider the totality of the circumstances when determining if a DUI suspect’s consent t o a blood draw was voluntary

. See Evans , supra at 331. As o ur Supreme Court has explained : 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 leve l of the defendant ’ s cooperation with the law enforcement personnel. Commonwealth v. Gillespie , 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J., opinion announcing the judgment of the court) (citing Commonwealth v. Cleckley , 738 A.2d 427, 433 n.7 ( Pa. 1999)).
B ased on our review of the certified record , we conclude that the facts of the instant case clearly weigh in favor of a finding of knowing and voluntary
consent

. Although Appellant was in custody at the time he consented, there is no evidence that his consent to the blood draw was the product of duress, threats, or coercion on the part of law enforcement. No testimony was presented that Officer William s ’ demeanor or expression was harsh or confrontational, or that he misrepresented the facts in an effo rt to get Appellant to consent to the blood draw. Indeed, Appellant stipulated that Officer Williams did not threaten him. Officer William s read Appellant theJ

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revised DL

- 26B form , which provided an accurate statement of the law, before request ing his con sent to the blood draw. The revised DL

- 26B warning clearly indicated the blood draw was merely a request, which Appellant was free to refuse and be subject to certain civil penalties

. Appellant had the opportunity to read and sign the revised DL

- 26B form , and thereafter elected to sign it, indicating his consent to the blood draw. Furthermore, any subjective, but inaccurate, belief of A ppell ant that he could not refuse a blood test without criminal penalties does not weigh heavily against voluntariness since, as noted above, Appellant was presumed to know the legal effect of Birchfield on the day it was announced

. There was no evidence to suggest that Appellant suffered any physical , mental, or emotional limitation, or had any language barrier that wou ld have impaired his ability to comprehend the language of the DL

- 26B form so as to render him incapable of providing voluntary consent to the blood draw. Finally, n o evidence was presented regarding whether Appellant was aware that incriminating evidence would be found in his blood. Accordingly , the record supports the trial court’s determination that, under the totality of the circumstances, Appellant’s consent was knowing and voluntary. See Trial Court Opinion, 1 1/2 1 /17 , at 11

. T herefore , the trial court did not err in denying Appellant ’ s motion to suppress the results of h is BAC
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Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/17/18