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Negovan v. Commonwealth, Department of Transportation

Commonwealth Court of Pennsylvania

October 24, 2017

Julie Negovan, Appellant
v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

          Submitted: August 18, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge.

          OPINION

          ANNE E. COVEY, JUDGE.

         Julie 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.

         On June 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 (DUI).[1]

         Officer 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).[2] 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.[3]Licensee refused to submit to the blood test and declined to sign the form.

         On July 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.[4] 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, 2017.

         Licensee 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.

         At the outset, Licensee received a 2-month license suspension as part of her voluntary participation in the DUI accelerated rehabilitative disposition (ARD)[5]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.[6] 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. 2009).

         Notwithstanding, 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).[7] 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 statutory.").

         With 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 [D]epartment ...

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