J-A11029-17

2017 PA Super 217

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JOHN LAMONTE ENNELS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1895 MDA 2016

Appeal from the Suppression Order October 19, 2016

In the Court of Common Pleas of Berks County 

Criminal Division at No(s): CP-06-CR-0002605-2016

BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

DISSENTING OPINION BY STEVENS, P.J.E.: FILED JULY 11, 2017

While the United States Supreme Court has made it more difficult as a 

practical matter for law enforcement officers to protect the public from 

motorists who are operating a vehicle under the influence of alcohol,1 we do 

not have to do so under the specific facts of the case before us.

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*

Former Justice specially assigned to the Superior Court.

1

In Birchfield v. North Dakota, ___ U.S. ____, 136 S.Ct. 2160, 195 

L.Ed.2d 560 (2016), the United States Supreme Court held that:

(1) The Fourth Amendment permits warrantless breath tests 

incident to arrests for drunk driving; 

(2) The Fourth Amendment does not permit warrantless blood 

tests incident to arrests for drunk driving; and

(3) Motorists cannot be deemed to have consented to submit 

to a blood test on pain of committing a criminal offense, 

abrogating State v. Smith, 849 N.W.2d 599.

Id. 
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Here, there is no question police officers had probable cause to arrest 

Appellee Ennels (“Appellee”) for driving under the influence of a controlled 

substance, marijuana.2 Appellee was driving a car involved in a traffic 

accident and was attempting to flee the scene when officers stopped him. 

The “overwhelming smell of marijuana emanating from the vehicle” led to 

the arrest of Appellee for DUI.

Appellee was asked to submit to a blood test and signed the DL-26 

Form in the presence of one of the police officers.3 Significantly, as stated 

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2

In the Affidavit of Probable Cause, Officer Marcos Rodriguez stated the 

following:

As I walked up to the driver’s side of the vehicle, the 

driver, later identified as [Appellee], opened up the front door. I 

ordered him to stay inside the vehicle, and as I walked up closer 

I got an overwhelming odor of marijuana coming from the inside 

of the vehicle. I asked [Appellee] if he had been smoking or 

drinking, to which he responded no to both. I ordered 

[Appellee] out of the vehicle and detained him.

Due to the smell of marijuana coming from the vehicle, 

myself and OFF. HERNANDEZ conducted a search of the vehicle. 

OFF. HERNANDEZ found a partially smoked blunt of suspected 

marijuana, or a “roach[,]” sitting within the open center console 

of the vehicle. The suspected marijuana blunt was recovered at 

approx. 1940 HOURS. 

See Affidavit of Probable Cause, filed 4/1/16, at ¶¶ 2-3. 

3 Among the provisions set forth in the form was the following:

If you refuse to submit to the chemical 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 

(Footnote Continued Next Page)
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by the trial court in its Finding of Facts, Appellee “did not express any 

hesitation or concern with the DL-26 warnings.” See Findings of Fact and 

Conclusions of Law in Disposition of [Appellee’s] Omnibus Pretrial Motion, 

10/19/16, at 3.

Because I believe that under the totality of the circumstances Appellee 

provided valid consent to the warrantless blood test which was not tainted 

by an inaccurate warning of the consequences of refusal, I dissent from the 

Majority’s conclusion to uphold the granting of Appellee’s motion to suppress 

the results of the blood test in this case.

There is no evidence herein that if Appellee were convicted of DUI his 

criminal punishment would be enhanced by failure to sign the Form. In fact, 

if he failed to sign the Form he could not be given any greater penalty than if 

he signed it, which Appellee did without hesitation. For example, the DL-26 

Form revealed that the enhanced criminal penalties one may face for 

refusing to submit to a blood test are identical to those he or she faces if 

(Footnote Continued) _______________________

18 months. In addition, if you refuse to submit to the chemical 

test, and you are convicted of violating Section 3802(a)(1) 

(relating to impaired driving) of the Vehicle Code, then, because 

of your refusal, you will be subject to more severe penalties set 

forth in Section 3804(c) (relating to penalties) of the Vehicle 

Code. These are the same penalties that would be imposed if 

you were convicted of driving with the highest rate of alcohol, 

which include a minimum of 72 consecutive hours in jail and a 

minimum fine of $1,000.00, up to a maximum of five years in 

jail and a maximum fine of $10,000. 

See DL-26 FORM ¶ 3. 
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convicted of Section 3804 (c) of the Vehicle Code relating to “incapacity; 

highest blood alcohol; controlled substances.” Thus, there is no further 

penalty where one is convicted of DUI-controlled substance regardless of 

whether that individual previously had consented to a blood test. The 

Majority actually recognizes this fact in Footnote 7 of the Majority Opinion.

In Birchfield, supra, the United States Supreme Court highlighted 

the significant government interest in preserving highway safety. Id. at 

____, 136 S.Ct. at 2164, 195 L.Ed.2d at ____. As such, a finding that 

Appellee’s consent was voluntary, where he would not have been subject to 

harsher criminal penalties were he to have refused to sign the DL-26 Form 

and later convicted of a drug-related DUI, is in line with the reasoning and 

promotes the spirit of Birchfield. In addition, this conclusion does not run 

afoul of this Court’s recent decisions in Commonwealth v. Evans, 153 A.3d 

323 (Pa.Super. 2016) and Commonwealth v. Giron, 155 A.3d 635 

(Pa.Super. 2017). 

In Evans, the defendant was arrested and charged with DUI highest 

rate of alcohol, third offense, and DUI general impairment, third offense. In 

finding the Birchfield case to be controlling, the Evans Court stated that: 

with respect to an individual who refuses a blood or breath test 

and who is then convicted of Section 3802(a)(1) (DUI, general 

impairment), 75 Pa.C.S.A. § 3803 also grades the conviction at 

the same level as an individual who violates Section 3802(c), 

which is DUI, highest rate of alcohol. For individuals such as 

Appellant, who have “one or more prior offenses,” 75 Pa.C.S.A. § 

3803(b)(4) grades a conviction for DUI, highest rate of alcohol 

and DUI, general impairment (when coupled with a refusal to 
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submit to a blood or breath test) as a misdemeanor of the first 

degree. 75 Pa.C.S.A. § 3803(b)(4). This is a higher grade of 

offense than “[a]n individual who violates section 3802(a)[, DUI, 

general impairment] and has more than one prior offense”—

which Section 3803(a)(2) grades as a second-degree 

misdemeanor. 75 Pa.C.S.A. § 3803(a)(2).

Thus, even though Pennsylvania's implied consent law 

does not make the refusal to submit to a blood test a crime in 

and of itself, the law undoubtedly “impose[s] criminal penalties 

on the refusal to submit to such a test.” Birchfield, 136 S.Ct. at 

2185–2186. To be sure, Section 3804(c) provides that an 

“individual who violates section 3802(a)(1)[, DUI, general

impairment] and refused testing of blood” is punished more 

severely than an individual who commits the stand-alone DUI, 

general impairment offense under Section 3802(a)(1)—and to 

the same extent as an individual who violates Section 3802(c), 

relating to DUI, highest rate of alcohol. 75 Pa.C.S.A. § 3804(c). 

Id. at 331. 

Similarly, the Giron Court held that where the defendant who had 

been charged with a first offense DUI-general impairment was subjected to 

the enhanced criminal penalties provided by Sections 3803 and 3804 for 

refusing to provide a blood sample, his sentence was illegal. Id. at 637. In 

so finding, the Giron Court summarized the relevant Pennsylvania DUI 

statutes as follows: 

Pennsylvania law prescribes a three-tiered DUI statutory 

scheme, which penalizes and punishes drivers with higher levels 

of alcohol in their blood more severely than drivers with 

relatively lower blood alcohol levels. Section 3802(a) prohibits an 

individual from driving a vehicle “after imbibing a sufficient 

amount of alcohol such that the individual is rendered incapable 

of safely driving ... the vehicle” and from driving a vehicle with a 

blood alcohol concentration (“BAC”) of at least 0.08% but less 

than 0.10%. Section 3802(b) prohibits an individual from driving 

a vehicle with a BAC of at least 0.10% but less than 0.16%. 

Section 3802(c) prohibits an individual from driving a vehicle 

with a BAC that is 0.16% or higher. 75 Pa.C.S.A. § 3802.
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Section 3804 sets forth the penalties for individuals who violate 

sections 3802(a), (b), and (c). The penalties are lowest for 

individuals who violate section 3802(a) and are the greatest for 

individuals who violate section 3802(c). However, section 3804 

also sets forth the punishment for individuals who refuse a blood 

or breath test and who are then convicted of DUI-general 

impairment. Specifically, it punishes individuals who refuse the 

test (and are convicted of DUI-general impairment) at the same 

level as those who are convicted of DUI-highest rate of alcohol.

Finally, with respect to an individual who refuses a blood or 

breath test and who is then convicted of DUI-general 

impairment, section 3803 also grades the conviction at the same 

level as an individual who is convicted of DUI-highest rate of 

alcohol. For individuals such as Appellant, who have “one or 

more prior offenses,” section 3803(b)(4) grades a conviction for 

DUI-highest rate and DUI-general impairment (when coupled 

with a refusal to submit to a chemical test) as a first-degree 

misdemeanor. 75 Pa.C.S.A. § 3803(b)(4). A first-degree 

misdemeanor is punishable by up to five years' imprisonment. 

18 Pa.C.S.A. § 1104. Second offense DUI-general impairment 

which results in an accident causing damage to a vehicle is 

punishable by up to six months' imprisonment. 75 Pa.C.S.A. § 

3803(b)(1). Furthermore, section 3804 provides that an 

individual convicted of second offense DUI-general impairment 

faces a mandatory minimum of five days' imprisonment, 75 

Pa.C.S.A. § 3804(a)(2)(i), while an individual convicted of 

second offense DUI-general impairment with refusal faces a 

mandatory minimum of 90 days' imprisonment. 75 Pa.C.S.A. § 

3804(c)(2)(i).

Id. at 638–39. 

In the instant case, there simply was no threat of enhanced criminal 

penalties for Appellee’s refusing to consent to a blood draw pursuant to his 

arrest for a drug-related DUI, nor will Appellee, in fact, receive an enhanced 

penalty if he ultimately is convicted of driving under the influence of 
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controlled substances. The police officers acted appropriately and within 

constitutional principles.

As I would find the suppression court improperly applied the law to the 

facts herein and its resultant legal conclusions were erroneous, I would 

reverse and remand for trial.