Submitted: June 30, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE MICHAEL H.
WOJCIK, Judge HONORABLE DAN PELLEGRINI, Senior Judge
Marchese (Licensee) appeals from an order of the Court of
Common Pleas of Lycoming County (trial court) that dismissed
his license suspension appeal from the Department of
Transportation's (DOT) 18-month suspension of
Licensee's operating privilege under 75 Pa. C.S.
§1547(b)(1)(ii) based on his refusal to submit to a
warrantless request for a blood test after being arrested for
driving under the influence of alcohol or controlled
substance (DUI), a violation of 75 Pa. C.S. §3802.
Licensee contends Pennsylvania's Implied Consent Law, 75
Pa. C.S. §1547(a) and (b), violates the Fourth Amendment
to the U.S. Constitution because it requires suspension of an
individual's driving privilege based on his refusal to
comply with a warrantless request to submit a sample of blood
for chemical testing. For the reasons that follow, we affirm.
November 2015, Pennsylvania State Police Trooper Adam Kirk
stopped Licensee's vehicle in the City of Williamsport
for violations of the Vehicle Code, 75 Pa. C.S.
§§101-9805. Trooper Kirk detected a strong odor of
burnt marijuana as he approached Licensee's vehicle. The
trooper then directed Licensee to exit the vehicle. At that
time, Trooper Kirk located a glass container that contained a
green leafy residue which field tested positive for
marijuana. Trooper Kirk also observed that Licensee had
glassy, bloodshot eyes and a green leafy substance in his
mouth. The trooper then requested that Licensee perform
various field sobriety tests. Based upon Licensee's
performance and Trooper Kirk's observations, the trooper
placed Licensee under arrest for DUI and transported him to
hospital, Licensee declined to participate in a drug
recognition evaluation (DRE). Trooper Kirk read Licensee the
implied consent warnings in DOT's DL-26 form verbatim and
asked Licensee to consent to withdrawal of a blood sample for
chemical testing in accord with 75 Pa. C.S. §1547.
Licensee refused the request. Thereafter, Trooper Kirk
submitted the required paperwork to DOT.
letter dated January 12, 2016, DOT notified Licensee that his
driving privilege would be suspended for a period of 18
months as a result of his chemical test refusal. Licensee
timely appealed the notice of suspension. At a hearing, DOT
submitted Licensee's driving record, which included a
certified record of an earlier DUI-controlled substance
conviction in 2012. See Tr. Ct. Hr'g, 8/23/16,
Ex. C-1. In addition, Trooper Kirk testified regarding the
particular circumstances of his stop of Licensee's
vehicle and Licensee's refusal of the trooper's
request for a blood test.
response, Licensee presented no evidence, but asked to submit
a brief regarding the effect of the U.S. Supreme Court's
decision in Birchfield v. North Dakota, __U.S.__,
136 S.Ct. 2160 (2016), on the case. In Birchfield,
the Supreme Court held that a state cannot criminally
penalize a motorist for refusing to submit to a warrantless
request for a blood test after being arrested for suspicion
of DUI. The trial court granted Licensee's request and
set up a briefing schedule for the parties.
the submission of briefs, the trial court issued an opinion
and order dismissing Licensee's appeal. In its opinion,
the trial court rejected Licensee's contention that
Birchfield rendered Pennsylvania's Implied
Consent Law unconstitutional. Unlike the implied consent
warnings given in North Dakota, Pennsylvania's DL-26 form
does not advise a vehicle operator that it is a
crime to refuse a request for a blood test under the
Implied Consent Law; rather, it is a civil penalty.
As such, the trial court determined the present case was
distinguishable from Birchfield, which has no effect
on civil license suspensions. Licensee
contends that in light of the holding in Birchfield,
Pennsylvania's Implied Consent Law violates the Fourth
Amendment to the U.S. Constitution and Article I, Section 8 of
the Pennsylvania Constitution because it requires suspension of
the driving privilege of an individual charged with DUI for
refusing to submit to a warrantless request for a blood
sample for chemical testing. More specifically, Licensee
asserts the Supreme Court phrased the issue before it as
"whether motorists lawfully arrested for drunk driving
may be convicted of a crime or otherwise penalized
for refusing to take a warrantless test measuring the alcohol
in their bloodstream." Birchfield, __U.S. at
__, 136 S.Ct. at 2172 (emphasis added). With respect to blood
tests, Licensee argues the Court determined that the warrant
requirement applies and that warrantless searches violate a
motorist's constitutional rights to be free from
unreasonable searches and seizures.
addition, Licensee argues the language in Birchfield
stating its holding does not apply to implied consent laws
merely imposing civil penalties is obiter dicta.
Therefore, because such civil penalties were not at issue in