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. COSGROVE, Judge1

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 (common pleas) denying his appeal from a 

one-year suspension of his operating 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), 

commonly 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 may result from a violation of these laws.

I. Legal Background

Beginning on February 1, 2004, Section 1547(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 followed 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 Section 
3

On June 23, 2016, the United States Supreme Court issued its decision in 

Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). In Birchfield, petitioners 

challenged North Dakota and Minnesota laws that made it a crime for a motorist

suspected of DUI to refuse a breath or blood test required under those states’ implied 

consent laws. 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 held that a breath test, but not a blood test, is 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. Blood 

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 evidentiary consequences on motorists who refuse to 

comply,” that the petitioners did not question the constitutionality of implied consent 

 

3802(a) [of the Vehicle 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) (emphasis 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 not 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 short, “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 county district attorneys participated 

in a teleconference with DOT. (DOT’s Br. at 12-13.) During that teleconference, 

the district attorneys expressed concern that if the warning about enhanced criminal 

penalties was not removed from Form DL-26, drivers arrested 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 which is now Form 

DL-26B. (Id.) 

The district 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 the officer warned the driver that he would be subject to 

enhanced criminal penalties if he refused); see also Commonwealth v. Giron, 155 

A.3d 635, 640 (Pa. Super. 2017) (vacating sentence and holding that a defendant is 
5

not subject to enhanced criminal penalties when he refuses an officer’s request under 

the Implied Consent Law to take his blood).

In July 2017, the General Assembly amended Sections 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 breath 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 

Concomitantly, 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, the question Licensee presents for our consideration is what effect, if 

any, does an officer’s failure to warn a licensee, 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 following 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 pursuant 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 where there was 

a Buick Rendezvous lying on its roof in a ditch. 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 Licensee, 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 that Trooper could administer field sobriety tests. After Trooper

administered one test to Licensee, Licensee put his head down and told Trooper to 

arrest him. 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 

contained in DOT Form DL-26B. 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 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 with 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.
7

(Reproduced Record (R.R.) at 37a.) Trooper 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 Code.

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 common pleas, 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 warning, which had been previously part of DOT Form DL26, following the United States Supreme Court’s decision in Birchfield because of 

concerns that 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 mandated warning.

Common pleas 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), common 

pleas 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 to 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 pleas recounted that following Birchfield, the Superior Court has 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, common pleas 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 was what 

DOT imposed when Licensee refused. (Id. at 9-10.)

III. Analysis

On appeal,6 Licensee argues that, at the time it was read to him, Form DL26B did 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, 

and Pennsylvania law has distinguished between civil license suspension 

proceedings and criminal proceedings, indicating that the latter does not affect the 

former. 

 

6 Our standard of review is limited to determining whether common pleas committed an 

error of law, whether common pleas 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; and (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).

Martinovic v. Dep’t of Transp., Bureau of Driver 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. Department of Transportation, 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 at 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). Our Supreme Court has said that the 

language then in Section 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 true, 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, the 

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 cannot be criminally punished for refusing 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 Birchfield and the Superior 
11

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 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); Commonwealth 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”).

Licensee adds that Birchfield has no impact on civil license suspension 

appeals, as recognized by this Court in Boseman v. Department of Transportation, 

Bureau of Driver Licensing, 157 A.3d 10, 21 (Pa. Cmwlth. 2017), and that

Pennsylvania Courts have consistently distinguished between 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, in 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 own 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 a 
12

warrantless blood test after being arrested 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, such 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 We have held that Birchfield does not invalidate a civil license 

suspension based on the argument that a warrant was required to obtain the requested

blood test. Id. at 21. However, what Licensee seems to suggest is that, in order for 

his license suspension to be valid, Trooper had to violate Licensee’s Fourth 

Amendment rights by warning 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 impact 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 exclusionary 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) 

(rejecting 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 encourages officers to violate licensees’ Fourth Amendment 

rights thereby jeopardizing their criminal prosecutions in order to comply with 

Section 1547(b)(2)(ii) even though the criminal penalty in the warning 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 is 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, common pleas did not err when it denied 

Licensee’s appeal.

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 Driving 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 pleas 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 lacks 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 January 4, 2017, is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge