J-S23014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JERMAINE VEASY 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1100 EDA 2019

Appeal from the Judgment of Sentence Entered March 25, 2019

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0000503-2018

BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: Filed: October 1, 2020

Appellant Jermaine Veasy appeals from the judgment of sentence 

imposed following his conviction for driving under the influence (DUI)—highest 

rate of alcohol and related offenses at a non-jury trial. Appellant argues that 

the trial court erred by denying his pre-trial motion to suppress. We vacate 

the judgment of sentence, reverse the order denying suppression, and remand 

for a new trial.

The trial court set forth its factual findings regarding the suppression 

hearing as follows:

On November 5, 2017, at approximately 1:40 a.m., [Appellant] 

was observed traveling west on 10th Street in Marcus Hook 

Borough, Delaware County, Pennsylvania by Officer Daniel Barnett 

and Officer Daniel Pasley. The officers, while sitting in their patrol 

cars in a parking lot at the intersection of 10th Street and Church 

Street, noticed [Appellant’s] white Mercedes-Benz was audibly 

operating at a high rate of speed. As they continued to observe 

[Appellant’s] vehicle, the Officers noticed [Appellant’s] vehicle did 
J-S23014-20

- 2 -

not have headlights on in conditions that were dark and rainy. 

After pulling behind [Appellant], Officer Barnett witnessed as 

[Appellant’s] vehicle came up on another vehicle at a high rate of 

speed and then went around a median on the road to travel into 

the oncoming traffic lane. Officer Barnett immediately attempted 

to pull [Appellant] over following these observations. [Appellant]

stopped his vehicle two blocks later at around 10th Street and 

Blueball Avenue. 

Officer Barnett noticed a strong odor of alcoholic beverages 

coming from the vehicle immediately upon making contact with 

[Appellant]. [Appellant] informed Officer Barnett of his license to 

carry a Smith & Wesson M&P firearm, located in the glove 

compartment. After checking [Appellant’s] credentials, Officer 

Barnett returned to the vehicle and asked [Appellant] to step out. 

Officer Barnett then asked [Appellant] whether or not he had been 

drinking that evening, to which [Appellant] responded by asking, 

“What time is it?” [Appellant] had slurred speech and difficulty 

speaking throughout the encounter. Officer Barnett then 

requested [Appellant] undergo a series of three field sobriety 

tests. [Appellant] was compliant with the Officer but failed each 

of the three field sobriety tests administered. Officer Barnett then 

asked [Appellant] to submit to a Preliminary Breath Test (PBT) but 

was unable to get a proper readout from the device. Following 

[Appellant’s] failure to complete the field sobriety tests, Officer 

Barnett placed him under arrest for suspicion of driving while 

intoxicated. [Appellant] was placed in the back of Officer Pasley’s 

patrol car in handcuffs. Officer Barnett then requested [Appellant]

submit to a chemical test of his blood, warning [Appellant] that 

his refusal “could” lead to the suspension of his license for 

“approximately 12 months.” [Appellant] gave verbal consent to 

Officer Barnett’s request. [Appellant] was transported by Officer 

Pasley to Crozer-Chester Medical Center. During the ride, Officer 

Pasley and [Appellant] made no conversation besides 

[Appellant’s] request for his handcuffs to be loosened. At the 

hospital, [Appellant] was brought into an examination room and 

uncuffed by Officer Pasley, who warned him, “not to do anything 

stupid”. A nurse extracted two vials of blood from [Appellant]. 

Later testing of the blood revealed a BAC of 0.239%. 

Trial Ct. Op., 8/2/19, at 2-3 (record citations omitted). We add that Officer 

Barnett testified that he did not read the DL-26B implied consent form to 
J-S23014-20

- 3 -

Appellant because Appellant had already given his verbal consent to the blood 

draw. N.T. Suppress Hr’g, 9/20/18, at 40-41. Officer Barnett testified that it 

was his understanding that the DL-26B form is only used when a motorist is 

going to refuse. Id.

Appellant was later charged with DUI—general impairment, DUI—

highest rate of alcohol, failing to use required lighting, driving at an unsafe 

speed, careless driving, reckless driving, and disregarding traffic lanes.

1

 See

Criminal Compl., 11/5/17; see also Criminal Information, 2/28/18. On March 

29, 2018, Appellant filed an omnibus pretrial motion, which included a motion 

to suppress. Therein Appellant argued that pursuant to Birchfield v. North 

Dakota, ___ U.S. ____, 136 S. Ct. 2160 (2016), the trial court should 

suppress evidence of the blood test results, because the Commonwealth 

conducted an illegal, warrantless blood draw, and Appellant did not provide 

knowing, voluntary, or intelligent consent to the blood draw. See Omnibus 

Pretrial Mot., 3/29/18, at 1-4. 

The trial court held a suppression hearing on September 20, 2018. At 

the end of hearing, the trial court held its decision under advisement. 

Additionally, the trial court ordered the parties to submit briefs containing their 

____________________________________________

1 75 Pa.C.S. §§ 3802(a)(1), 3802(c), 4302(a)(2), 3361, 3714(a), 3736(a), 

3309(1), respectively.
J-S23014-20

- 4 -

arguments, which they did.2 In his brief, Appellant argued that Officer 

Barnett’s verbal implied consent warning, including the use of the word “could” 

instead of “will” for the driver’s license suspension upon refusal, was 

inaccurate and therefore, Appellant did not voluntarily consent to the blood 

draw. Mem. of Law, 12/10/18, at 2, 7-11. On December 6, 2018, the trial 

court issued an order denying Appellant’s motion to suppress.

3

On January 25, 2019, the Commonwealth withdrew the charge of 

reckless driving and the case proceeded to a non-jury trial. The trial court 

held the verdict under advisement. On February 11, 2019, the trial court 

found Appellant guilty of DUI—general impairment, DUI—highest rate of 

alcohol, driving at an unsafe speed, and careless driving. The trial court found 

Appellant not guilty of the remaining charges. 

____________________________________________

2 Appellant and the Commonwealth apparently served their briefs on the trial 

court without filing them as of record. After the trial court denied his motion 

to suppress, Appellant filed a copy of his brief, captioned “Defendant’s 

Memorandum of Law in Support of Motion to Suppress” with the trial court on 

December 10, 2019.

3 The trial court’s order reads as follows: “AND NOW, to wit, this 6th day of 

December, AD, 2018, upon consideration of Defendant’s Omnibus Pretrial 

Motion filed on March 29, 2018, and after a hearing thereon, it is hereby 

ORDERED and DECREED that said Motion is DENIED.” Order, 12/6/18. The 

trial court’s order does not include findings of fact and conclusions of law 

required under Pa.R.Crim.P. 581(I). However, we may “look at the trial 

court’s Rule 1925(a) opinion to garner findings of fact and conclusions of law. 

Here, the trial court issued a 1925(a) opinion that adequately relates the 

court's findings of fact and conclusions of law.” Commonwealth v. 

Stevenson, 832 A.2d 1123, 1126 (Pa. Super. 2003) (citation omitted).
J-S23014-20

- 5 -

On March 25, 2019, the trial court sentenced Appellant to twenty-three

months’ county intermediate punishment, of which 180 days were to consist 

of home confinement with electronic home monitoring, and a consecutive term 

of three years’ probation. Appellant was also ordered to pay $1,550 in fines, 

$300 in court costs, and a $134 lab fee and to undergo a drug and alcohol 

evaluation.

On April 15, 2019, Appellant filed a timely notice of appeal. He filed an 

untimely court-ordered Pa.R.A.P. 1925(b) statement.4 The trial court issued 

a Rule 1925(a) opinion addressing Appellant’s claims.

Appellant raises two issues for our review:

1. Based on the totality of the circumstances relayed during the 

Suppression hearing, did the trial court commit an error of law 

in denying Appellant’s motion to suppress?

2. Did the trial court err in denying Appellant’s suppression 

motion when the arresting officer did not provide Appellant 

with the required opportunity to chose between yielding 

consent to a warrantless chemical test or, alternatively, 

refusing to yield[?]

____________________________________________

4 We note that the trial court ordered Appellant to file a Rule 1925(b) 

statement by May 7, 2019. Appellant filed his 1925(b) statement on May 15, 

2019. Appellant did not request, nor did the trial court grant, an extension of 

time to file the 1925(b) statement. Therefore it was untimely filed. Under 

Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009) (en banc), the 

late filing of a Rule 1925(b) statement is per se ineffectiveness of counsel in 

criminal cases. Burton, 973 A.2d at 433; accord Pa.R.A.P. 1925(c)(3). 

Nevertheless, a remand is not necessary here since “the trial court has filed 

an opinion addressing the issue[s] presented in [Appellant’s] 1925(b) concise 

statement.” Id.
J-S23014-20

- 6 -

Appellant’s Brief at 6-7 (unpaginated) (some capitalization omitted).

5

We summarize Appellant’s arguments together as they are closely 

related. Appellant argues that the trial court erred in denying his motion to 

suppress because Appellant did not voluntarily consent to the blood draw. 

Appellant’s Brief at 13-23 (unpaginated). Appellant argues the trial court 

erred in not considering our Supreme Court’s decision in Commonwealth v. 

Myers, 164 A.3d 1162 (Pa. 2017) in its analysis. Id. at 13 (unpaginated). 

More specifically, Appellant argues that the trial court erred in concluding that 

because Appellant immediately verbally consented to the blood draw, the 

arresting officer did not have to read the implied consent warnings from the 

DL-26B form to Appellant. Id. at 15 (unpaginated). Appellant argues that 

the facts of this case are comparable to those of Commonwealth v. Krenzel, 

209 A.3d 1024, 1032 (Pa. Super. 2019), appeal denied, 222 A.3d 370 (Pa. 

2019). Id. at 19 (unpaginated). In both Krenzel and this case, the drivers 

were pulled over and arrested for DUI after police administered field sobriety 

____________________________________________

5 Appellant’s brief lacks page numbers. Pa.R.A.P. 2173 requires that all pages 

of a brief, except for the table of contents and table of citations, to be 

numbered separately in Arabic figures. We have explained that “compliance 

with the Rules of Appellate Procedure concerning the briefs and reproduced 

record are not guideposts but a mandate.” McGee v. Muldowney, 750 A.2d 

912, 913 n.1 (Pa. Super. 2000) (citation omitted). However the lack of page 

numbers, and other technical defects of Appellant’s brief, do not impede our 

review. See Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa. Super. 

2013) (noting that despite the defects in appellant’s brief, appellant “has 

presented to this Court a thorough and well-developed brief in support of his 

arguments. Thus, [the appellant’s] omissions do not impede our review. 

Accordingly, we do not find them to be ‘substantial,’ and we will not exercise 

our discretion to quash or dismiss his brief.” (citations omitted)).
J-S23014-20

- 7 -

tests. Id. (citations omitted). Appellant states that neither he nor Krenzel 

were informed of their rights under 75 Pa.C.S. § 1547. Id. at 20

(unpaginated). Appellant argues that the police are “statutorily obligated”

under 75 Pa.C.S. § 1547 to inform a suspect of the “right to refuse chemical 

testing and the consequences arising therefrom” and the failure to do so is 

grounds to suppress the blood draw. Id. (quoting Krenzel, 209 A.3d at

1032). 

Appellant also argues that the Commonwealth’s reliance on 

Commonwealth v. Gorbea-Lespier, 66 A.3d 382 (Pa. Super. 2013), to 

establish that he consented to the blood draw is in error. Id. at 20-22

(unpaginated). According to Appellant, in Gorbea-Lespier, the defendant 

was informed that a refusal to submit to the test would result in a minimum 

twelve month license suspension. Id. at 21 (unpaginated) (citing GorbeaLespier, 66 A.3d at 384). Here, Appellant contends that Officer Barnett 

informed him that a refusal to submit to the blood test “could” result in a 

license suspension of “up to twelve months” instead of informing him that 

refusal will result in a twelve month license suspension. Id. (citation omitted). 

Appellant additionally notes that in Gorbea-Lespier, the defendant was 

informed that he did not have a right to consult with anyone, including an 

attorney prior to testing, while here Officer Barnett did not provide the 

statutorily required warning that Appellant did not have a right to consult 

anyone, including an attorney, before choosing to consent to the blood test. 

Id. at 21-22 (unpaginated) (citing Gorbea-Lespier, 66 A.3d at 384). 
J-S23014-20

- 8 -

Lastly, Appellant essentially argues that Officer Pasley, who escorted 

Appellant to the hospital for the blood draw, also failed to provide Appellant 

with the necessary implied consent warnings at the time of the blood draw, 

which is tantamount to a separate statutory violation supporting the 

suppression of the blood draw as nonconsensual. Id. at 22-23 (unpaginated). 

Appellant claims that implied consent warnings should have been given at the 

time of the blood draw, which Officer Pasley did not do. Id. (citing Myers, 

164 A.3d at 1174 (plurality)).

The Commonwealth responds that under 75 Pa.C.S. § 1547(a), a 

motorist is deemed to have consented to chemical testing and a police officer 

has the duty to inform the driver that his or her driver’s license will be 

suspended upon refusal. Commonwealth’s Brief at 7-8. According to the 

Commonwealth, the officer had no duty to read the implied consent warnings 

to Appellant because Appellant never refused his consent. Id. at 8 (citing 

Gorbea-Lespier, 66 A.3d at 390). Furthermore, the Commonwealth argues 

that the trial court’s finding that Appellant’s consent was voluntary was correct 

based on the facts in the record. Id. at 9-10, 13-14. The Commonwealth 

further contends that although Officer Barnett’s statements to Appellant 

deviated from the implied consent warnings contained in the DL-26B form, 

the deviation did not affect Appellant’s decision to consent to the blood draw. 

Id. at 11. The Commonwealth argues that Krenzel is distinguishable from 

the facts of this matter because in Krenzel the police did not provide the 

defendant with the implied consent warnings at all, while in this case, Officer 
J-S23014-20

- 9 -

Barnett did provide a warning. Id. at 12-13. The Commonwealth argues that 

although Officer Barnett’s warnings differed from those contained in the DL26B form, Officer Barnett sufficiently advised Appellant of the consequences 

of refusal and Appellant consented to the blood test. Id. at 13-14.

We apply the following standard when reviewing the denial of a 

suppression motion:

[o]ur initial task is to determine whether the [trial court’s] factual 

findings are supported by the record. In making this 

determination, we must consider only the evidence of the 

prosecution’s witnesses, and so much evidence of the defense that 

remains uncontradicted when fairly read in the context of the 

record as a whole. When the evidence supports the factual 

findings, we are bound by such findings; we may reverse only if 

the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (citation omitted). 

In addition, “our scope of review from a suppression ruling is limited to the 

evidentiary record that was created at the suppression hearing.” 

Commonwealth v. Rapak, 138 A.3d 666, 670 (Pa. Super. 2016) (citation 

omitted).

“The United States Supreme Court has held that because ‘the taking of 

a blood sample’ is a search within the meaning of the Fourth Amendment to 

the United States Constitution, police officers may not compel the taking of a 

blood sample without a search warrant, absent an applicable exception.” 

Commonwealth v. Haines, 168 A.3d 231, 234 (Pa. Super. 2017) (quoting 

Birchfield, ___ U.S. at ____, ____, 136 S. Ct. at 2173, 2185 (footnote 

omitted)). “One such exception is consent, voluntarily given.” 
J-S23014-20

- 10 -

Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000) (citation 

omitted); see also Myers, 164 A.3d at 1178 (plurality) (explaining that 

Birchfield’s holding “supports the conclusion that . . . an individual must give 

actual, voluntary consent at the time that testing is requested”).6

In determining whether Appellant provided voluntary consent to the 

warrantless blood test, we note:

[i]n determining the validity of a given consent, the 

Commonwealth bears the burden of establishing that a consent is 

the product of an essentially free and unconstrained choice—not 

the result of duress or coercion, express or implied, or a will 

overborne—under the totality of the circumstances. The standard 

for measuring the scope of a person’s consent is based on an 

objective evaluation of what a reasonable person would have 

understood by the exchange between the officer and the person 

who gave the consent. Such evaluation includes an objective 

examination of the maturity, sophistication and mental or 

emotional state of the defendant. Gauging the scope of a 

defendant’s consent is an inherent and necessary part of the 

process of determining, on the totality of the circumstances 

presented, whether the consent is objectively valid, or instead the 

product of coercion, deceit, or misrepresentation.

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 level of the 

defendant’s cooperation with the law enforcement personnel.

____________________________________________

6 Only section II(C) of Myers is a plurality opinion. Myers, 164 A.3d at 1164, 

1173-81. A majority of our Supreme Court joined the remainder of the 

decision. Id. at 1164.
J-S23014-20

- 11 -

Commonwealth v. Venable, 200 A.3d 490, 497-98 (Pa. Super. 2018)

(citations omitted).

The following Motor Vehicle Code provisions address circumstances in 

which an individual arrested for DUI refuses to submit to chemical testing:

§ 1547. Chemical testing to determine amount of alcohol or 

controlled substance

(a) General rule.—Any person who drives, operates or is in 

actual physical control of the movement of a vehicle in this 

Commonwealth shall be deemed to have given consent to one or 

more chemical tests of breath or blood for the purpose of 

determining the alcoholic content of blood or the presence of a 

controlled substance if a police officer has reasonable grounds to 

believe the person to have been driving, operating or in actual 

physical control of the movement of a vehicle in violation of . . .

3802 (relating to driving under influence of alcohol or controlled 

substance). . . .

(b) Civil penalties for refusal.—

(1) If any person placed under arrest for a violation of section 

3802 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. . . .

(2) 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 the 

person will be subject to a restoration fee of up to $2,000; 

and

(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 (emphases added).
J-S23014-20

- 12 -

In Gorbea-Lespier, this Court considered the issue of whether a 

motorist’s consent to a first blood draw after being given implied consent 

warnings extends to a second blood draw. Gorbea-Lespier, 66 A.3d at 384-

85. In that case the defendant was involved in a two vehicle accident. Id. at 

384. The defendant was arrested for suspicion of DUI and transported to a 

nearby hospital. Id. On the way to the hospital, the state trooper advised 

the defendant of the implied consent warnings and defendant consented to a 

blood test. Id. About thirty minutes after the defendant’s blood was drawn, 

a supervisor requested that the state troopers obtain a second blood draw. 

Id. at 385. The troopers did not read the defendant the implied consent 

warnings a second time before the second blood draw. Id. The GorbeaLespier Court found that under the plain language 75 Pa.C.S. § 1547(a) “a 

driver is deemed to give consent to one or more chemical tests of blood for 

the purpose of determining the alcoholic content of blood if the police officer 

has reasonable grounds to believe that person is under the influence of alcohol 

when operating his vehicle.” Id. at 389 (emphasis in original). The GorbeaLespier Court further noted that under Commonwealth, Department of 

Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873 (Pa. 

1989), the police only have to inform a motorist of the consequences of 

refusing a breathalyzer test upon the motorist’s refusal. Id. Therefore, this 

Court found that the defendant consented to the second blood draw and there 

was no need for the police to give him a second implied consent warning. Id.

at 389-90.
J-S23014-20

- 13 -

Subsequently, in Myers, our Supreme Court examined Section 1547, 

and determined that

[b]y operation of the implied consent statute, once a police officer 

establishes reasonable grounds to suspect that a motorist has 

committed a DUI offense, that motorist shall be deemed to have 

given consent to one or more chemical tests of breath or blood for 

the purpose of determining the alcoholic content of blood or the 

presence of a controlled substance. Notwithstanding this 

provision, Subsection 1547(b)(1) confers upon all individuals 

under arrest for DUI an explicit statutory right to refuse chemical 

testing, the invocation of which triggers specified consequences.

Under this statutory scheme, a motorist placed under arrest for 

DUI has a critical decision to make. The arrestee may submit to 

a chemical test and provide the police with evidence that may be 

used in a subsequent criminal prosecution, or the arrestee may 

invoke the statutory right to refuse testing, which: (i) results in a 

mandatory driver’s license suspension under 75 Pa.C.S. § 

1547(b)(1); (ii) renders the fact of refusal admissible as evidence 

in a subsequent DUI prosecution pursuant to 75 Pa.C.S. § 

1547(e); and (iii) authorizes heightened criminal penalties under 

75 Pa.C.S. § 3804(c) if the arrestee later is convicted of DUI. In 

very certain terms, this Court has held that, in requesting 

a chemical test, the police officer must inform the arrestee 

of the consequences of refusal and notify the arrestee that 

there is no right to consult with an attorney before making 

a decision. See O’Connell, 555 A.2d at 877-78. An arrestee is 

entitled to this information so that his choice to take a chemical 

test can be knowing and conscious. Id. at 878. The choice 

belongs to the arrestee, not the police officer.

Myers, 164 A.3d at 1170-71 (some citations and footnote omitted, some 

formatting altered) (emphasis added).

More recently in Krenzel, this Court interpreted Section 1547 and 

Myers as requiring the police to inform suspects arrested for DUI of their right 

to refuse chemical testing in order for consent to be valid. See Krenzel, 209 
J-S23014-20

- 14 -

A.3d at 1031-32 (holding that the trial court erred as a matter of law in finding 

that the defendant’s consent to a blood draw was voluntary where she was in 

custody and the police asked her to submit to a blood draw without providing 

a recitation of the defendant’s rights under 75 Pa.C.S. § 1547, reading the

DL-26B implied consent form, or by confirming her consent in writing). In 

Krenzel, the officer did not read any part of the DL-26 implied consent form 

to the defendant, and he asked for her consent to the blood test and the 

defendant consented. Id. at 1031. The Krenzel Court concluded that the 

defendant could not make a knowing choice of whether to submit to a blood 

draw when an officer fails to recite the Section 1547 rights informing the 

defendant of her right to refuse chemical testing. Id. at 1032.

Here, the trial court held that:

Because [Appellant] gave verbal consent immediately upon the 

request of the officer, there was no need to read the DL-26B form. 

[Gorbea-Lespier, 66 A.3d at 389-90]. Additionally, because 

[Appellant] consented to the blood test, Officer Barnett’s 

statements were not misleading and did not affect [Appellant’s] 

decision. Peppelman v. Commonwealth, 403 A.2d 1041, 1042 

(Pa. Cmwlth. Ct. 1979).

Officer Barnett and Officer Pasley did not have a general duty to 

inform [Appellant] of his right to refuse chemical testing of his 

blood. Police officers only have a duty to warn individuals of the 

consequences of their right to refuse, if they refuse the test. In 

[O’Connell], the Supreme Court of Pennsylvania held that police 

officers have a duty to inform citizens of the potential 

consequences of refusal. Following the decision by the Supreme 

Court of the United States in [Birchfield] the standards formed 

under O’Connell were modified slightly as to prevent defendants 

from facing both civil and criminal penalties as a result of refusing 

to consent to a chemical test of their blood. Later, in [GorbeaLespier], the Superior Court of Pennsylvania held that a 
J-S23014-20

- 15 -

defendant must only be informed of their right to refuse chemical 

testing and consequences of doing so after they have already 

attempted to refuse. Gorbea-Lespier, 66 A.3d at 389-90.

* * *

Here, Officer Barnett and Officer Pasley did not have a duty to 

inform [Appellant] of his right to refuse and the consequences of 

doing so because [Appellant] never refused testing. After being 

placed into custody, Officer Barnett requested that [Appellant] 

submit to a blood test. In response, [Appellant] verbally agreed 

to give blood. He did not become argumentative, confused, or 

even ask for his attorney; instead he continued to show the same 

level of compliance displayed throughout the entire encounter. 

While being transported to the hospital by Officer Pasley, 

[Appellant] made no statements that indicated he would 

withdrawal the consent given to Officer Barnett. At the hospital, 

[Appellant] remained compliant with the requests of Officer 

Pasley, and allowed the nurse to withdrawal blood without issue. 

[Appellant’s] own testimony at the hearing for his Motion to 

Suppress offers no evidence suggesting that he otherwise tried to 

refuse. At no time, before, during, or after the drawing of 

[Appellant’s] blood, did [Appellant] attempt to retract his consent 

and refuse a blood test. Because [Appellant] never refused or 

attempted to refuse a blood test, Officer Barnett and Officer Pasley 

never had a duty to inform him of his right to refuse and the 

consequences of doing so.

[Appellant] also argues that Officer Barnett’s extemporaneous 

statements violated his right to informed consent, by leading 

defendant to inaccurately believe that his license “could be” 

suspended, as opposed to the more precise and accurate term 

“would be.” [Appellant] cites to case law showing that 

Pennsylvania courts have not only imposed a high standard of care 

on the warnings to be given to defendants in this situation, but 

even that the “could be” and “would be” difference argued here is 

in violation of this standard. Still, Officer Barnett’s statements do 

not represent a violation of [Appellant’s] right to informed 

consent, even if improper, because under O’Connell and its 

progeny, police only have a[] duty to inform a defendant of their 

rights to refuse after they have begun to refuse or become 

uncompliant.
J-S23014-20

- 16 -

Trial Ct. Op. at 4-7 (some citations and parentheticals omitted). The trial 

court also rejected Appellant’s argument that his consent was not knowing, 

intelligent, and voluntary because Officer Barnett’s implied consent warnings 

were defective, stating:

[Appellant] was made aware of his right to refuse. Officer Barnett 

informed [Appellant] of his right to refuse as he was making his 

initial request to [Appellant] to submit to a blood test. [Appellant]

testifies that he was never told he could refuse testing. This court 

has already expressed that Officer Barnett’s testimony is more 

credible. Additionally, [Appellant] argues in a separate issue, 

discussed, supra, that his consent was reliant on the Officer 

Barnett’s use of the language “could” instead of “will” when 

informing him of his right to refuse. Therefore, it seems that 

[Appellant] does in fact recall Officer Barnett informing him of his 

right to refuse chemical testing.

Id. at 10 (record citations omitted).

Here, the trial court’s reliance on Gorbea-Lespier was in error. In that 

case, this Court interpreted O’Connell as requiring that police only give a

motorist implied consent warnings upon a refusal to submit to chemical 

testing. See Gorbea-Lespier, 66 A.3d at 389-90. In Myers, our Supreme

Court explained that when a police officer requests that an arrestee submit to 

a chemical test, the officer must inform the arrestee of the consequences of 

refusal and notify the arrestee that there is no right to consult with an attorney 

before making a decision. See Myers, 164 A.3d at 1171. The Myers Court 

held that “[a]n arrestee is entitled to this information so that his choice to 

take a [chemical] test can be knowing and conscious.” See id. (citation 

omitted). This Court, applying Myers, subsequently held that an arrestee 
J-S23014-20

- 17 -

cannot make a knowing and conscious choice of whether to submit to a blood 

draw when an officer does not inform the arrestee of his or her “right to refuse 

chemical testing and the consequences arising therefrom . . . .” See Krenzel, 

209 A.3d at 1032.

Here, the trial court considered various factors and concluded that the 

police did not coerce Appellant, he fully cooperated, and he did not appear 

confused by Officer Barnett’s request. However, the primary issue is whether 

Officer Barnett complied with his statutory obligation to inform Appellant of 

his “right to refuse chemical testing and the consequences arising therefrom.” 

See id. In Krenzel, this Court concluded that where an officer does not 

inform an arrestee of his or her statutory rights to refuse chemical testing and 

the consequences arising therefrom, the arrestee cannot have made a 

knowing choice regarding whether to submit to the blood draw. See id.

Officer Barnett testified that he informed Appellant that a refusal of the 

blood test “could” lead to the suspension of his license for “approximately 12 

months.” N.T. Suppress Hr’g at 17, 19. However, this warning was 

inaccurate, as a refusal will lead to a driver’s license suspension of 12 months 

for a first time offender and 18 months for a second time offender. See 75 

Pa.C.S. § 1547(b)(1), (b)(2)(i). Additionally, Officer Barnett did not inform 

Appellant that he did not have the right to consult with an attorney before 

making his decision. N.T. Suppress Hr’g at 19; see also Myers, 164 A.3d at 

1171 (stating the police must “notify the arrestee that there is no right to 

consult with an attorney before making a decision.”) Therefore, Officer 
J-S23014-20

- 18 -

Barnett’s description of the consequences of refusal did not comply with his 

statutory obligations under Section 1547(b). Lastly, neither Officer Barnett 

nor Officer Pasley obtained Appellant’s written consent to the blood draw.

While in Krenzel, the officer failed to inform the arrestee of her right 

under Section 1547 to refuse chemical testing and the consequences of 

refusal, here, Officer Barnett provided Appellant with incomplete information. 

See Krenzel, 209 A.3d at 1031-32. Due to the above described 

incompleteness of the police warnings, we conclude that Officer Barnett did 

not comply with his statutorily mandated duty to inform Appellant of his right 

to refuse the blood test and the consequences of refusal. Therefore, because 

he was misinformed about his rights, we hold that Appellant did not make a 

knowing and conscious choice of whether to submit to the blood draw. 

For the foregoing reasons, and in light of Krenzel, we are constrained 

to conclude that the trial court erred in denying suppression. See Bryant, 67 

A.3d at 724 (stating we may reverse only if the trial court’s legal conclusions 

drawn from its factual findings are erroneous).

Judgment of sentence vacated. Order denying suppression motion 

reversed. Case remanded for a new trial. Jurisdiction relinquished.
J-S23014-20

- 19 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/1/20