IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Garlick
, : Appellant :

: v. : No. 48 C.D. 2017

: Argued : November 15, 2017 Commonwealth of Pennsylvania
, : Department of Transportation, : Bureau of Driver Licensing :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY , Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JOSEPH M. COSGRO V E, Judge 1

OPINION BY JUDGE COHN JUBELIRER FILED: January 3, 2018

Robert Garlick (Licensee) appeals from the January 4 , 2017 Order of the
Court of Common Pleas of Erie County ( c ommon p leas) denying his appeal from a

one

- year suspension of his operatin g privilege imposed by the Commonwealth 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)
,

com monly referred to as the Implied Consent Law

. 2 On appeal, Licensee argues his

1 This decision was reached before the conclusion of Judge Cosgrove’s service with this Court on December 31, 2017.

2 Section 1547(b)(1)(i) reads, in pertinent part, as follows:2

suspension must be reversed because he was not warned, in accordance with Section 1547(b)(2)(ii) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(2)(ii), that his refusal to
submit to a blood test would subject him to enhanced criminal penalties under Section 3804(c) of the Vehicle Code, 75 Pa. C.S. § 3804(c). Before addressing Licensee’s argument, however, it is necessary for the Court to review the recent legal developments that have altered the way in which courts have applied implied consent laws and the penalties that ma y result from a violation of the se laws.

I. Legal Background Beginning on February 1, 2004, Section 154 7(b)(2)(ii) of the Vehicle Code required a police officer to warn a licensee stopped on suspicion of driving under the influence (DUI) that the licensee’s refusal to submit to a blood test would subject
the licensee to enhanced criminal penalties. Section 9.1 of Act of September 30, 2003, P.L. 120. 3 Officers f ollowed that requirement by reading from DOT Form
DL

- 26 , a portion of which tracked that statutory language

.

(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 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 as follows:

(i) Except as set forth in subparagraph (ii), for a period of 12 months.

75 Pa. C.S. § 1547(b)(1)(i)

.

3 When the General Assembly amended Section 1547(b)(2) , effective on February 1, 2004, it provided as follows:
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) upon conviction, plea or adjudication of delinquency for violating Section3

On June 23, 2016, the United States Supreme Court issued its decision in Birchfield v. North Dakota
, 136 S . Ct. 2160 (2016)

. In Birchfield , petit ioners challenged North Dakota and Minnesota law s that made it a crime for a motorist suspected of DUI to refuse a breath or blood tes t required under th o se states’ implied
consent l aw s

. Id. at 2170

- 72. The petitioners argued that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a magistrate issues a warrant authorizing such testing. Id. at 2172. The Supreme Court he ld that a breat h test, but not a blood test, i s reasonable in the
absence of a warrant under the search

- incident

- to

- arrest exception to the warrant requirement because there is a great need for testing a motorist’s level of
intoxication
, and the impact on privacy interests is only slight

. Id. at 2184. B lood
tests, in contrast , are “significantly more intrusive” and, thus, require a warrant or exigent circumstances. Id. The Court then rejected the respondents’ alternative argument that blood tests were “ justified based on the driver’s legally implied
consent to submit to them.” Id. at 2185. In doing so, the Court stated that its “prior opinions have referred approvingly to the general concept of implied

- consent laws that impose civil penalties and evide ntiary consequences on motorists who refuse to comply,” that the petitioners did not question the constitutionality of implied consent

3802(a) [of the Vehicl e Code], the person will be subject to the penalties provided in section 3804(c) (relating to penalties).

Former 75 Pa. C.S. § 1547(b)(2). Section 1547(b)(2)(ii) now reads,
It shall be the duty of the police officer to inform the person that:

. . . (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. § 1547(b)(2)(ii) (empha sis added)

.4

laws, and nothing said in its opinion “should be read to cast doubt on them.” Id. Nevertheless, the Court held, a state could no t impose criminal penalties on a motorist for refusing to submit to a blood test because there had to “be a limit on the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.” Id. In sh ort, “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”
Id. at 2186. According to DOT, a week after Birchfield was decided , the Pennsylvania District Attorneys Association and a number of co unty d istrict a ttorneys participated
in a teleconference with DOT. (DOT’s Br. at 12

- 13.) During that tele conference,
the d istrict a ttorneys expressed concern that if the warning about enhanced criminal penalties was not removed from Form DL

- 26, drivers a rrested for DUI who consented to a blood test would be able to successfully move to suppress the results in the criminal proceedings. ( Id. at 13. ) DOT agreed to amend Form DL

- 26 by creating one for breath tests and one for blood tests, the latter of whic h is now Form
DL

- 26B. ( Id. )
The d istrict attorneys’ concern was subsequently validated by the Superior
Court ’s decision that when a motorist is given the warning contained in Section 1547(b)(2)(ii), the warning is “partially inaccurate” and, consequently, the results of the blood test must be suppressed and an enhanced sentence for refusing the blood
test must be vacated. Commonwealth v. Evans , 153 A.3d 323, 331 (Pa. Super. 2016) (vacating the trial court’s suppression order finding that the driver consented to a
draw of his blood where t he officer warned the driver that he would be subject to enhanced criminal penalties i f he refused) ; see also Commonwealth v. Giron , 155 A.3d 635, 640 (Pa. Super. 2017) (vacating sentence and holding that a defendant is5

not subject to enhanced criminal penalties when he refuses an office r ’s request under the Implied Consent Law to take his blood)

. In July 2017, the General Assembly amended Section s 1547(b)(2)(ii) and 3804(c) of the Vehicle Code , consistent with the holding in Birchfield , to clarify that enhanced criminal penalties could be imposed only for refusing to submit to
“chemical br eath testing,” not blood testing. Section 4 of Act of July 20, 2017, P.L.
333 (emphasis added). A licensee , thus, is no longer subject to enhanced criminal penalties for refusing an officer’s request to test his blood absent a search warrant. 4
Concomita ntly, since a licensee is no longer subject to enhanced criminal penalties for refusing a blood test, the General Assembly removed from Section 1547(b)(2)(ii)
the obligation of an officer to warn a licensee about that consequence. With that background, th e question Licensee presents for our consideration is what effect, if any, does a n officer ’s failure to warn a l icensee, as ostensibly required by Section 1547(b)(2)(ii) at the time a sample of his blood was requested , have on the suspension of his license

.

II. Factual Background Following Birchfield , but before the decisions in the Superior Court cases applying Birchfield to criminal matters and the General Assembly’s amendments to Sections 1547(b)(2)(ii) and 3804(c) of the Vehicle Code
, the followi ng undisputed

4 Section 3804(c) now provides that a licensee’s punishment may be enhanced for refusing testing of his blood “pursuant to a valid search warrant.” 75 Pa. C.S. § 3804(c). Like Section 1547(b)(2)(ii), Section 3804(c) was amended by the Act of July 20, 2017, so as to eliminate enhanced criminal penalties for refusing a test of one’s blood in the absence of a valid search warrant. Section 4 of the Act of July 20, 2017, P.L. 333. A licensee need not be warned that refusing a request for blood pu rsuant to a valid search warrant will subject him to enhanced criminal penalties.6

events occurred. On July 17, 2016, Trooper Timothy McConnell (Trooper) of the Pennsylvania State Police responded to a single

- car accident scene w here there was a Bu i ck Rendezvous lying on its roof in a d itch. No operator was present. Once Trooper identified Licensee’ s mother as the registered owner, he proceeded to her residence where he spoke with her and Licensee . While Trooper spoke with Licensee, Licensee exhibited classic signs of intoxication. There were also physical markings on L icensee , such as dirt on his hands and a seat belt rash on the left side of his neck, which suggested he had been driving the vehicle when it had crashed. Trooper asked Licensee’s father to transport Licensee back to the accident scene
down the road so th at Trooper could administer field sobriety tests. After Trooper
administer ed one test to Licensee
, Licensee put his head down and told Trooper to
arrest hi m. Trooper attempted to administer a preliminary breath test, but Licensee
refused. Trooper placed Licensee under arrest on suspicion of DUI and transported
him back to the State Police barracks. There, Trooper read verbatim the warnings
contai ned in DOT Form DL

- 26 B. Those warnings provide, in relevant part,

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 operating privilege will be su spended 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 w hether 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.7

(Reproduced R ecord (R.R.) at 37a.) Troope r did not inform Licensee that he would be subject to enhanced criminal penalties under Section 3804(c) of the Vehicle Code
if he refused to consent
, even though that warning was , at the time, apparently required by Section 1547(b)(2)(ii) of the Vehicle Co de

. 5 (R.R. at 25a, 29a.)
Licensee refused to submit to a blood test. Thereafter, DOT suspended Licensee’s operating privilege for one year. Licensee appealed to c omm on p leas, arguing that DOT could not suspend his operating privilege because Trooper did not warn him that he would be subject to enhanced criminal penalties as required by Section 1547(b)(2)(ii)

. Licensee noted
that DOT removed this warni ng, which had been previously part of DOT Form DL

26, following the U nited S tates Supreme Court’s dec ision in Birchfield because of

concerns tha t the warning would adversely impact criminal prosecutions. However, Licensee argued, until the General Assembly amends Section 1547(b)(2)(ii) to
reflect Birchfield , police officers must give the statutorily mand ated warning.
Common p leas denied Licensee’s appeal and reinstated his one

- year suspension, concluding that DOT met its burden of proof and, Licensee, in opposition, failed to prove that he was incapable of making a knowing and conscious refusal. (Common Pleas Order, Jan. 4, 2017.) In its opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925 (a) , Pa. R.A.P 1925 (a) , c ommon
p leas concluded that in light of Birchfield and subsequent Pennsylvania law applying

5 At that time 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 t o submit to chemical testing, upon conviction or plea for violating 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).8

Birchfield
, Form DL

- 26B is accurate. (Common Pleas Op. at 9, Mar. 6, 2017

. )
Common p leas recounted that f ollowing Birchfield , the Superior Court ha s held that,

“ in the absence of a warrant or exigent circumstances, ” a licensee could not be subject to enhanced criminal penalties for refusing a blood test. ( Id. at 8 (quoting
Giron , 155 A.3d at 640 ) .) Therefore, common pleas concluded, a police officer cannot warn a licensee about the potential of an enhanced criminal penalty for refusing a blood test because to do so would be “unduly coercive and deceivingly inaccurate.” ( Id. at 9.) Trooper here, c ommon p leas held, performed his duty by limiting his warning to Licensee that Licensee’s refusal to submit to a blood test would result in a suspension of Licensee’s operating privilege, and that w as what DOT imposed when License e refused. ( Id. at 9

- 10.)

III. Analysis On appeal, 6 Licensee argues that , at the time it was read to him, Form DL

26B d id not conform with the mandate contained in Section 1547(b)(2)(ii) in that he was not informed that his refusal would subject him to enhanced criminal penalties and, therefore, his operating privilege should not have been suspended. Licensee further argues that Birchfield has no bearing on civil license suspension proceedings,

a nd Pennsylvania law has distinguished between civil license suspension proceedings and criminal proceedings, indicating that the la tter does not affect the
former.

6 Our standard of review is limited to determining whether c ommon p leas committed an error of law, whether c ommon p leas 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).9

In order to support a suspension of Licensee’s operating privilege under Section 1547(b)( 1), DOT had the burden of proving the following:
(1) Licensee was arrested for violating Section 3802 of the Vehicle Code by a police officer who had “ reasonable grounds to believe ” that Licensee was operating or was in actual physical control of the movement of a vehicle while in violation of Section 3802 (i.e., while driving under the influence); (2) Licensee was asked to submit to a chemical test; (3) Licensee refused to do so; an d (4) Licensee was specifically warned that a refusal would result in the suspension of his operating privileges and would result in enhanced penalties if he was later convicted of violating Section 3802(a)(1).

Mart inovic v. Dep’ t of Transp., Bureau of Dr iver Licensing , 881 A.2d 30, 34 (Pa. Cmwlth. 2005) (emphasis added). There is no constitutional requirement for a police officer to provide any warning to a licensee of the consequences of his failure to submit to a blood test, Negovan v. Dep artment of Tr ansp ortation , Bureau of Driver Licensing , __ A.3d __, __ ( Pa. Cmwlth. , No. 200 C.D. 2017, filed Oct. 24, 2017), slip op. at 5 ; however, there is a statutory requirement
, 75 Pa. C.S. § 1547(b)(2)(ii). It is undisputed that a t the time Trooper requested that Licensee submit to a blood test, Section 1547(b)(2)(ii) provided that “ [ i ] t 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 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)(ii) (emphasis added). O ur Supreme Court has said that the language then in Sectio n 1547(b)(2)(ii) “ command [ed] ” a police officer to warn a licensee about the possibility of enhanced criminal penalties if convicted of DUI. Dep’t of Transp., Bureau of Driver Licensing v. Weaver , 912 A.2d 259, 264 (Pa. 2006) (emphasis added).10

It is tr ue, as Licensee argues, that the language contained in Section 1547(b)(2)(ii) was mandatory at the time Trooper requested that Licensee submit to
a blood test . However, while Section 1547(b)(2)(ii) then “command [ed] ” that a warning about enhanced criminal penalties be given
, Weaver , 912 A.2d at 264 , t he purpose behind that provision is to make a licensee aware “of the consequences of a refusal to take the test so that he can make a knowing and conscious choice.” Dep’ t of Transp., Bureau of Traffic Safety v. O’Connell , 555 A.2d 873, 877 (Pa. 1989); see Commonwealth v. Myers , 164 A.3d 1162, 1171 n.12 (Pa. 2017) (plurality) ( “purpose of [Section 1547(b)(2)] ‘is to entitle arrestees to the information necessary to assess the dire consequences they face if they fail to consent to chemical testing, to ensure their choice in that regard is knowing and conscious, as we described in O’Connell ’” (quoting Weaver , 912 A.2d at 267 (Baer, J., dissenting)) ) ; Weaver , 912 A.2d at 265 ( noting that the warning contained in Section 1547(b)(2)(ii) “informs the arrestee that the penalties are concrete, and not inconsequential”). Following Birchfield , and as the Superior Court concluded thereafter, a
licensee can not be criminally punished fo r refus ing a police officer’s request to test his blood pursuant to the Implied Consent Law. Although , at the time Trooper requested that Licensee submit to a blood test , Section 1547(b)(2)(ii) still required a warning that a licensee would be subject to enhanced criminal penalties under Section 3804(c) for refusing a test of his blood
, Licensee could not, as a matter of constitutional law, be subject to such penalties. Stated simply, 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), DOT and the police had to continue to apply Section 1547(b)(2)(ii). However, the effect of Birchfiel d and the Superior11

Court cases that followed was to render the criminal penalties warned of in Section 1547(b)( 2)(ii) as applied to blood testing unenforceable and to effectively sever that
section from the rest of the Vehicle Code

. See Section 1925 of th e 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) ; Commonwealth v. Batts
, 163 A.3d 410, 441 (Pa. 2017) (emphasis added) (stating that “[i]f a provisi on of a
statute is invalidated for any reason . . . a court must sever it from the remaining, valid portion of the statute ” ).
Licensee adds that Birchfield has no impact on civil license suspension appeals, as recognized by this Court in Boseman v. Dep ar t ment of Transp ortation
, Bureau of Driver Licensing , 157 A.3d 10
, 21 (Pa. Cmwl th. 2017), and that Pennsylvania Court s have consistently distinguished b etween civil license suspension proceedings and criminal DUI proceedings. In Boseman , the licensee’s license was suspended when she refused to submit to a test of her blood under the Implied Consent Law after being arrested for suspicion of DUI. Id. at 12. On appeal to this Court, the licensee claimed, inter alia , that under Birchfield , i n the absence of exigent circumstances, the arresting officer had to obtain a warrant for a test of her blood, and his failure to do so required that her appeal be sustained. Id. at 19.
We concluded that Birchfield was not applicable because “[b]y its ow n language Birchfield does not apply to implied consent laws that merely impose civil penalties.” Id. at 21 (citing Birchfield , 136 S. Ct. at 2185 ( “Petitioners do not question the constitutionality of [implied

- consent laws that impose civil penalties
and evidentiary consequences on motorists who refuse to comply], and nothing we say here should be read to cast doubt on them.”) )

. Rather, we said, “ Birchfield addressed the constitutionality of a State statute that made it a crime to refuse a12

warrantless bl ood test after being arrest ed for DUI.” Id. (emphasis in original). Thus, we concluded, while “ Birchfield may have some impact in criminal DUI proceedings in Pennsylvania where enhanced penalties based on refusal of a blood test are imposed, su ch is not the case before us in this civil license suspension appeal under the Implied Consent Law.” Id. Licensee’s point from his citation to Boseman and other, similar cases is not entirely clear. 7 W e have held that Birchfield does not invalidate a civil lice nse suspension based on the argument that a warrant was required to obtain the requested
blood test

. Id. at 21. However, w hat Licensee seems to suggest is that , in order for his license suspension to be valid, Trooper had to violate Licensee’s Fourth
Ame ndment rights by warn ing Licensee about the no

- longer enforceable enhanced criminal penalties because Section 1547(b)(2)(ii) still required that warning . This constitutional violation, according to Licensee’s interpretation of these cases, would
have no i mpact on his license suspension and, therefore, there was no reason for

7 In further support of Licensee’s position that violations of a licensee’s rights in the criminal context have no impact on civil license suspension proceedings and, thus, there is no reason to consider Birchfield , he cites to the following cases: Dep’t of Transp. v. Wysocki , 535 A.2d 77, 79 (Pa. 1987) (holding that whether police roadblock was unconstitutional had no bearing on the validity of a license suspension because Section 1547 merely required an arrest, not a valid one, and, thus, the exclusionar y rule does not apply to a license suspension proceeding ); Sitoski v. Dep’t of Transp., Bureau of Driver Licensing , 11 A.3d 12, 20 (Pa. Cmwlth. 2010) (holding that two

- hour window for submitting to a chemical test as set forth in Section 3802(a)(2) of the Vehicle Code relates to a licensee’s criminal prosecution for DUI and, thus, has no bearing on whether implied consent warnings were properly given for purposes of suspending licensee’s license); Witmer v. Dep’t of Transp., Bureau of Driver Licensing , 880 A.2d 716, 719 (Pa. Cmwlth. 2005) (rej ecting licensee’s argument that the warnings required by Miranda v. Arizona , 384 U.S. 436 (1966), had to precede an officer’s request to draw blood before the licensee’s license could be suspended because “the sanctions imposed by the Implied Consent Law are civil in nature and wholly unrelated to the consequences of a criminal DUI prosecution”).13

common pleas to consider Birchfield in this proceeding. 8 To put it simply, Licensee’s argument encourag es officers to violate licensee s ’ Fourth Amendment rights thereby jeopardizing t he ir criminal prosecutions in order to comply with Section 1547(b)(2)(ii) even though the criminal penalty in the warn ing is no longer
enforceable and, therefore, no longer a consequence of refusing a blood test

. We cannot countenance such an argument. Given our review of the current state of the law, Licensee’s argument that his
license must be reinstated because he was not warned that he would be subject to no longer constitutionally permissible enhanced criminal penalties for refusing blood testing i s unpersuasive . Trooper specifically and accurately warned Licensee about the consequences of refusing a blood test that remain following Birchfield , that is, the suspension of his license. 9 Therefore, c ommon p leas did not err w hen it denied
Licensee’s a

ppeal.

IV. Conclusion For the foregoing reasons, we affirm the January 4 , 2017 Order of common pleas denying Licensee’s appeal of DOT’s one

- year suspension of his operating privilege.

8 On October 18, 2017, an en banc panel of this Court heard argument in Renfroe v. Department of Transportation, Bureau of Dri ving Licensing , docket number 1907 C.D. 2016, which raised the issue of whether , after Birchfield , a warning that the licensee would be subject to enhanced criminal penalties for refusing a blood test warranted reversal of his civil license suspension. A decision from this Court in Renfroe is pending.

9 Once DOT meets its burden, the burden shifts to the licensee to establish that he was incapable of making a knowing and conscious refusal. Dep’t of Transp., Bureau of Motor Vehicles v. Kyong Rok Yi , 562 A .2d 1008, 1009 (Pa. Cmwlth. 1989). Common p leas concluded that Licensee did not prove that his refusal was not knowing and conscious. Although Licensee does not clearly assert in his brief that his refusal was not knowing and conscious, to the extent his argument could be construed in this fashion, it lack s merit for the reasons already articulated.14 _____________________________________ RENÉE COHN JUBELIRER, Judge

Judge Cosgrove concurs in result only.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Garlick, : Appellant :

: v. : No. 48 C.D. 2017

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

O R D E R

NOW
, January 3, 2018 , the Order of the Court of Common Pleas of Erie County, dated Januar y 4, 2017, is AFFIRMED

.

_____________________________________ RENÉE COHN JUBELIRER, Judge