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Marchese v. Commonwealth

Commonwealth Court of Pennsylvania

September 13, 2017

Anthony Marchese, Appellant
v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

          Submitted: June 30, 2017

          BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE DAN PELLEGRINI, Senior Judge

          OPINION

          ROBERT SIMPSON, JUDGE

         Anthony Marchese (Licensee) appeals from an order of the Court of Common Pleas of Lycoming County (trial court)[1] 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.

         I. Background

         In 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 Williamsport Hospital.

         At the 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.

         By 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.

         In 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.

         Following 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 appeals.[2]

         II. Discussion

         A. Argument

         Licensee contends that in light of the holding in Birchfield, Pennsylvania's Implied Consent Law violates the Fourth Amendment to the U.S. Constitution[3] and Article I, Section 8 of the Pennsylvania Constitution[4] 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.

         In 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 ...


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