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Commonwealth v. Torres

Superior Court of Pennsylvania

December 8, 2017


         Appeal from the Order Entered October 31, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0005731-2016

          BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD, J.[*]


          DUBOW, J.

         The Commonwealth appeals from the trial court's October 31, 2016 Order entered by the Philadelphia County Court of Common Pleas granting Appellee Nelson Torres' Motion to Suppress the results of a warrantless blood test obtained following his DUI arrest pursuant to Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (June 23, 2016). After careful review, we affirm.

         In its Pa.R.A.P. 1925(a) Opinion, the trial court relied on the following findings of fact from the Motion to Suppress:

On March 23, 2015, Officer Robertson observed that [Appellee] made a left turn on North 5th Street but failed to signal a left turn. [Appellee's] car had tinted windows. Officer Robertson pulled [Appellee] over. When he got to the car, Officer Robertson could smell marijuana and observed [that Appellee's] eyes were bloodshot and he had slurred speech. Officer Robertson never pulled a gun on [Appellee], nor did he ever threaten him that he would go to jail for pulling him over. He did not say anything to [Appellee] about getting his blood drawn for a chemical test, nor about any consequences for not consenting to such a chemical test.
[Appellee] was taken to the basement of the police department headquarters and brought to AID Officer Shead . . . who was responsible for administering the chemical tests [that] are designed to confirm blood alcohol levels [] or the presence of chemical substances. Officer Shead has conducted over 500 of these tests in the past few years. When Officer Shead conducted the DUI test, he had [Appellee] complete paperwork, which include[d] what is known as the O'Connell[1] warnings. The text of the O'Connell warnings [in the DL-26 Form] includes the following language[:]
If you refuse to submit to a chemical test and you are convicted of, or plead to, or are an adjudicated delinquent with respect to violating Section 3802A [sic] of the Pennsylvania Vehicle Code, you will be subject to more severe penalties set forth in Section 3804C [sic] of the Pennsylvania Vehicle Code, which will include one of the following: for a first offender, a minimum of [72] hours in jail and a minimum fine of [$]1, 000. For a second offender, a minimum of 90 days in jail and a minimum fine of $1, 500. For a third subsequent offender, a minimum of one [] year in jail and a minimum fine of $2, 500.
[Officer] Shead read the warning to [Appellee] and asked him to sign the form before administering the test. There was no evidence suggesting that he used any coercive tactics to persuade [Appellee] to sign the form. It was apparent to Officer Shead that [Appellee] understood the meaning of the form.
Officer Shead testified [that] the police department has revised the language of the O'Connell warnings form in late June 2016. This change post-dated the Supreme Court's decision in Birchfield v. North Dakota, which established a categorical rule that, absent exigent circumstances or voluntary consent, that it was unconstitutional to conduct a warrantless blood draw and that implied consent laws [that] imposed criminal penalties were unenforceable.

Trial Court Opinion, 1/27/17, at 4-5 (paragraph breaks altered).

         The Commonwealth charged Appellee with three counts of Driving Under the Influence ("DUI") (general impairment, controlled substance/metabolite, and controlled substance-impaired ability).[2] Appellee filed a Motion to Suppress physical evidence and his statements to police, which the suppression court denied. Appellee did not challenge the voluntariness of his consent on the ground that he was threatened with criminal penalties.

         Appellee was convicted of two counts of DUI (controlled substance/metabolite, and controlled substance-impaired ability) following a bench trial in Municipal Court, and he was sentenced to 72 hours' to six months' incarceration. On June 15, 2016, Appellee filed an appeal for a trial de novo in the Court of Common Pleas.

         One week later, the U.S. Supreme Court decided Birchfield.[3]Appellee filed a supplemental Motion to Suppress invoking Birchfield, arguing that his consent was coerced. The Commonwealth argued that Appellee had waived his claim, that his Supplemental Motion was procedurally improper since he had already litigated a Motion to Suppress in ...

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