from the Suppression Order October 19, 2016 In the Court of
Common Pleas of Berks County Criminal Division at No(s):
BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.
Commonwealth appeals from the October 19, 2016 order entered
by the Berks County Court of Common Pleas granting Appellee
John Lamonte Ennels' motion to suppress the results of a
warrantless blood test.On appeal, the Commonwealth makes two
arguments: (1) that the ban on warrantless blood tests set
out in Birchfield v. North Dakota, 136 S.Ct. 2160
(2016), does not apply to those suspected of driving under
the influence ("DUI") of controlled substances, as
opposed to alcohol; and (2) that, in any event, Ennels'
consent to the test was not tainted by an inaccurate warning
of the consequences of refusal. Because we disagree with both
contentions, we affirm.
trial court set forth the following facts:
1. On or about Saturday, March 12, 2016, Reading Police
Officer Marco Rodriguez responded to the 1098 block of Penn
Street in the City of Reading for a reported vehicle
2. At that time, police were advised via dispatch that one of
the vehicles involved in the accident was attempting to leave
3. Officer Contreras initiated a traffic stop on the vehicle
that was reportedly leaving the scene.
4. The driver of that vehicle was identified to be . . .
5. Officer Rodriguez parked his patrol car in front of
[Ennels'] vehicle and Officer Contreras' patrol car
was parked behind [Ennels'] vehicle.
6. As per Officer Rodriguez's testimony, he parked his
car in front of [Ennels'] car "to prevent the
vehicle from attempting to leave again."
7. At that time, the officer noted the overwhelming smell of
marijuana emanating from the vehicle.
8. Officer Rodriguez asked [Ennels] to step out of the
9. The vehicle was searched and a partially-smoked blunt of
what was later determined to be marijuana was found inside
10. As a result of the traffic stop, [Ennels] was arrested
for DUI and transported to St. Joseph's Medical Center.
11. [Ennels'] vehicle was towed from the scene of the
accident because he was taken into custody, officers
determined that [Ennels'] license was suspended, and
there were no available drivers to remove the vehicle from
the scene of the accident.
12. At approximately 20:27 hours, Officer Rodriguez asked
[Ennels] to submit to a blood draw and read the Pennsylvania
Department of Transportation DL-26 form to [Ennels].
13. [Ennels] signed the DL-26 form in the presence of Officer
14. The DL-26 form was admitted into evidence as Commonwealth
15. [Ennels] submitted to chemical blood testing at 20:43
16.At that time, [Ennels] did not express any hesitation or
concern with the DL-26 warnings.
17. After [Ennels'] blood was drawn, he was transported
home by Officer Contreras.
of Fact and Conclusions of Law in Disposition of
Defendant's Omnibus Pretrial Motion, 10/19/16, at 2-3
March 12, 2016, Ennels was charged with DUI (controlled
substance) and DUI (general impairment). On August 1,
2016, Ennels filed a motion to suppress the results of the
blood test. On September 2, 2016, the trial court conducted a
hearing and, on October 19, 2016, it granted the motion. The
Commonwealth filed a timely notice of appeal.
Commonwealth raises the following issues on appeal:
A. Did the trial court err in suppressing evidence of
[Ennels'] blood test results pursuant to Birchfield
v. North Dakota, __ U.S.__, 136 S.Ct. 2160, 195 L.Ed.2d
560 (2016) in a drug-related DUI prosecution, where blood
testing is the only available method in Pennsylvania to
determine whether a suspect is driving under the influence of
a controlled substance, and thus the Pennsylvania implied
consent statute is wholly enforceable?
B. Did the trial court err in suppressing evidence of
[Ennels'] blood test results pursuant to Birchfield
v. North Dakota, __U.S.__, 136 S.Ct. 2160, 195 L.Ed.2d
560 (2016) in a drug-related DUI prosecution, where the
potential penalties listed on the DL-26 form properly
reflected the penalties related to drug-related DUI
convictions, rendering the consent to the blood draw
Cmwlth's Br. at 4 (unnecessary capitalization omitted).
reviewing the grant of a suppression motion, we must
determine whether the record supports the trial court's
factual findings and "whether the legal conclusions
drawn from those facts are correct." Commonwealth v.
Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013) (quoting
Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super.
2010)). We may only consider evidence presented at the
suppression hearing. In re L.J., 79 A.3d 1073,
1085-87 (Pa. 2013). In addition, because the defendant
prevailed on this issue before the suppression court, we
consider only the defendant's evidence and so much of the
Commonwealth's evidence "as remains uncontradicted
when read in the context of the record as a whole."
Brown, 64 A.3d at 1104 (quoting Cauley, 10
A.3d at 325). We may reverse only if the legal conclusions
drawn from the facts are in error. Id.
trial court granted Ennels' motion to suppress the
results of the blood test based on Birchfield.
Noting that (1) Birchfield held that "implied
consent laws that impose criminal penalties on drivers who
refuse to submit to blood tests violate the Fourth Amendment,
" Suppression Op., Concl. of Law, ¶ 10, (2) the
police did not obtain a warrant prior to administration of
the blood test, id. ¶ 11, and (3) the DL-26
form informed Ennels that he could be subject to enhanced
penalties if he refused the test, id. ¶¶
13-15, the trial court concluded that Ennels'
"consent was not given freely, specifically,
unequivocally, and voluntarily" and suppressed the
results. Id. ¶ 18.
Birchfield and Drug-Related DUI Prosecutions
Commonwealth first argues that Birchfield has
"limited applicability to drug-related DUI
prosecutions." Cmwlth's Br. at 9; see also
id. at 14 (Birchfield "provides little
guidance in drug-related DUI prosecutions."). Because
the Birchfield Court relied on the availability of
warrantless breath tests in holding warrantless blood tests
unconstitutional, and because breath tests are only useful in
determining the presence and amount of alcohol (but not
drugs) in a suspect's system, the Commonwealth contends
that the constitutional balance must be struck differently in
DUI cases involving controlled substances. In effect, the
Commonwealth asks this Court to hold that warrantless blood
tests are permissible in drug-related DUI investigations.
involved challenges to the use of both warrantless breath
tests and warrantless blood tests to determine the blood
alcohol content ("BAC") of an individual arrested
for DUI. In a set of consolidated cases, the
government parties argued that the administration of the
tests was constitutional under both the
search-incident-to-arrest and implied-consent exceptions to
the warrant requirement. In assessing those government
arguments, the Court engaged in a familiar balancing
analysis, "examin[ing] the degree to which [the tests]
intrude upon an individual's privacy and . . . the degree
to which they are needed for the promotion of legitimate
governmental interests." Birchfield, 136 S.Ct.
at 2176 (quoting Riley v. California, 134 S.Ct.
2473, 2484 (2014)) (internal quotation marks and some
internal brackets omitted); see also id. at 2185 n.8
("[O]ur decision in Riley calls for a balancing
of individual privacy interests and legitimate state
interests to determine the reasonableness of the category of
warrantless search that is at issue.").
the Court addressed the impact of each test on an
individual's privacy interests. As to breath tests, the
Court reasoned that: they involve an "almost
negligible" physical intrusion, id. at 2176;
"[e]xhalation is a natural process, " id.
at 2177; the tests "are capable of revealing only one
bit of information, the amount of alcohol in the
subject's breath, " id.; and the tests are
unlikely "to cause any great enhancement in the
embarrassment that is inherent in any arrest, "
id. Accordingly, the Court concluded that
"breath test[s] do not implicate significant privacy
concerns." Id. at 2178 (internal quotation
marks omitted; some alterations in original).
contrast, the Court found that blood tests are
"significantly more intrusive." Id. at
2184; see also id. at 2178. It reasoned that: the
tests "'require piercing the skin' and
extract[ing] a part of the subject's body"; unlike
exhaling air, "humans do not continually shed
blood"; and a blood sample may be preserved by the
police and contains "information beyond a simple BAC
reading." Id. at 2178.
Court next addressed "the States' asserted need to
obtain BAC readings for persons arrested for drunk driving,
" id., and the relationship between that need
and "[t]he laws at issue in the present cases - which
make it a crime to refuse to submit to a BAC test, "
id. at 2179. Noting that state and federal
governments have a "paramount interest . . . in
preserving the safety of . . . public highways, "
id. at 2178 (quoting Mackey v. Montrym, 443
U.S. 1, 17 (1979)) (alterations in original), and that
alcohol continues to be a leading cause of traffic fatalities
and injuries, id., the Court concluded ...