Submitted: August 18, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge.
E. COVEY, JUDGE.
Negovan (Licensee) appeals from the Bucks County Common Pleas
Court's (trial court) January 19, 2017 order dismissing
her appeal and reinstating the Commonwealth of Pennsylvania,
Department of Transportation, Bureau of Driver
Licensing's (Department) operating privilege suspension.
The sole issue before this Court is whether the trial court
erred or abused its discretion in dismissing the appeal in
light of the police officer's redaction of the enhanced
criminal penalties portion of the implied consent warnings.
After review, we affirm.
29, 2016, at approximately 11:10 p.m., Upper Southampton
Township Police Officer Francis Fazzio (Officer Fazzio) was
operating an unmarked patrol vehicle when he observed
Licensee, who was driving a black Chevy Camaro, stopped at a
red light in the left lane of Street Road at the intersection
of Second Street Pike in Upper Southampton Township, Bucks
County. Officer Fazzio followed Licensee, estimated that her
car reached speeds in excess of 60 miles per hour (MPH) in a
posted 45 MPH zone, and witnessed her vehicle swerve into the
center turn lane three times while she travelled westbound at
that location. After effectuating a traffic stop, Officer
Fazzio noticed that Licensee had glassy, bloodshot eyes, and
that there was a strong smell of alcohol coming from
Licensee's vehicle. Licensee informed Officer Fazzio that
she was coming from the Philadelphia Union League, and she
had consumed a couple glasses of wine. Officer Fazzio then
asked Licensee to perform three field sobriety tests,
including the horizontal gaze nystagmus test, the walk and
turn (or nine-step heel to toe) test, and the one-leg stand
test. Licensee did not touch her heel to her toe and
exhibited difficulty maintaining her balance during the
tests. As a result, Officer Fazzio placed Licensee under
arrest for driving under the influence of alcohol
Fazzio transported Licensee to St. Mary Medical Center,
placed her in a room designated for blood draws, and read her
the implied consent warnings (Form DL-26). Officer Fazzio
also handed Licensee the Form DL-26 to read. Those portions
of the implied consent warnings which related to the enhanced
criminal penalties for not submitting to a blood test were
redacted from the Form DL-26 as a result of the United States
Supreme Court's ruling in Birchfield v. North Dakota,
___U.S.___, 136 S.Ct. 2160 (2016), which was decided six
days before Licensee's arrest.Licensee refused to submit to
the blood test and declined to sign the form.
14, 2016, the Department notified Licensee that her
driver's license would be suspended for 12 months,
effective August 18, 2016, pursuant to Section 1547 of the
Vehicle Code, 75 Pa.C.S. § 1547, due to her refusal to
submit to chemical testing. On August 12, 2016, Licensee
appealed from the suspension to the trial court. A hearing
was held and, on January 19, 2017, the trial court denied
Licensee's appeal and upheld her suspension. Licensee
appealed to this Court. On February 8, 2017, the trial court
ordered Licensee to file a Statement of Errors Complained of
on Appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) (Rule 1925(b) Statement). Licensee filed
her Rule 1925(b) Statement with the trial court on March 29,
argues that the trial court erred in dismissing her appeal
because Section 1547(b)(2) of the Vehicle Code, 75 Pa.C.S.
§ 1547(b)(2), specifically requires notification of the
DUI enhanced criminal penalties before imposition of a civil
license suspension for chemical test refusal. Licensee
contends that she may have submitted to the blood test on
June 29, 2016, if she had known that her refusal to do so
would lead to the maximum DUI penalty.
outset, Licensee received a 2-month license suspension as
part of her voluntary participation in the DUI accelerated
rehabilitative disposition (ARD)program. Licensee believes
that the Department was not authorized to issue her a
12-month civil license suspension because Officer Fazzio
admittedly did not read her the enhanced DUI criminal
penalties portion of the implied consent warnings.
Apparently, Licensee believes her 2-month license suspension
was a "penalt[y] provided in [S]ection 3804(c) [of the
Vehicle Code] (relating to penalties)[, ]" 75 Pa.C.S.
§1547(b)(2), which Officer Fazzio was required to warn
her thereof pursuant to Section 1547(b)(2) of the Vehicle
Code. See Licensee Br. at 3, 5. However, Licensee
did not receive an enhanced penalty. The enhanced penalties
to which Licensee refers are contained in Section 3804(c) of
the Vehicle Code. That section specifically enumerates the
criminal penalties for a licensee's DUI and refusal to
submit to chemical testing, and license suspension is
not a listed penalty. Licensee's 2-month suspension
was required pursuant to Section 3807(d) of the Vehicle Code,
which mandates: "As a condition of participation in an
[ARD] program, the court shall order the [licensee's]
license suspended . . . [f]or 60 days if . . . the
[licensee's] blood alcohol concentration is not
known[.]" 75 Pa.C.S. §3807(d). Moreover, Licensee
was free to withdraw from the ARD program upon learning of
said suspension. See Poborski v. Dep't of Transp.,
Bureau of Driver Licensing, 964 A.2d 66 (Pa. Cmwlth.
this Court has held that there is no constitutional
requirement for a police officer to provide any implied
consent warnings to a driver arrested for DUI. See
Dep't of Transp., Bureau of Traffic Safety v.
Sinwell, 450 A.2d 235 (Pa. Cmwlth. 1982);
Commonwealth v. Williams, 338 A.2d 742 (Pa. Cmwlth.
1975); Commonwealth v. Abraham, 300 A.2d 831 (Pa.
Cmwlth. 1973). Accordingly, the only warnings that must be
provided are those mandated by statute, and those required by
the Supreme Court in Department of Transportation, Bureau
of Traffic Safety v. O'Connell, 555 A.2d 873 (Pa.
1989). See Sheakley v. Dep't of
Transp., 513 A.2d 551, 553 (Pa. Cmwlth. 1986),
appeal denied, 527 A.2d 546 (Pa. 1987) ("We
have also held that a motorist has no constitutional right to
a prior warning of the consequences of a refusal to submit to
a breathalyzer test and that the duty to warn is entirely
respect to the redacted portions of the Form DL-26 presented
and read to Licensee, Section 1547 of the Vehicle Code
provides in relevant part:
(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:
(1) in violation of [S]ection 1543(b)(1.1) [of the Vehicle
Code] (relating to driving while operating privilege is
suspended or revoked), [Section]
3802 [of the Vehicle Code, 75
Pa.C.S. § 3802, ] (relating to driving
under influence of alcohol or controlled substance)
. . . .
. . . .
(b) Suspension for refusal.--
(1) If any person placed under arrest for a violation of
[S]ection 3802 [of the Vehicle Code] 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