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Garlick v. Commonwealth

Commonwealth Court of Pennsylvania

January 3, 2018

Robert Garlick, Appellant
v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

          Argued: November 15, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JOSEPH M. COSGROVE, Judge [1]

          OPINION

          RENÉE COHN JUBELIRER, Judge

         Robert Garlick (Licensee) appeals from the January 4, 2017 Order of the Court of Common Pleas of Erie County (common pleas) denying his appeal from a one-year suspension of his operating privilege imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT), under Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i), commonly referred to as the Implied Consent Law.[2] On appeal, Licensee argues his suspension must be reversed because he was not warned, in accordance with Section 1547(b)(2)(ii) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(2)(ii), that his refusal to submit to a blood test would subject him to enhanced criminal penalties under Section 3804(c) of the Vehicle Code, 75 Pa. C.S. § 3804(c). Before addressing Licensee's argument, however, it is necessary for the Court to review the recent legal developments that have altered the way in which courts have applied implied consent laws and the penalties that may result from a violation of these laws.

         I. Legal Background

         Beginning on February 1, 2004, Section 1547(b)(2)(ii) of the Vehicle Code required a police officer to warn a licensee stopped on suspicion of driving under the influence (DUI) that the licensee's refusal to submit to a blood test would subject the licensee to enhanced criminal penalties. Section 9.1 of Act of September 30, 2003, P.L. 120.[3] Officers followed that requirement by reading from DOT Form DL-26, a portion of which tracked that statutory language.

         On June 23, 2016, the United States Supreme Court issued its decision in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). In Birchfield, petitioners challenged North Dakota and Minnesota laws that made it a crime for a motorist suspected of DUI to refuse a breath or blood test required under those states' implied consent laws. Id. at 2170-72. The petitioners argued that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a magistrate issues a warrant authorizing such testing. Id. at 2172. The Supreme Court held that a breath test, but not a blood test, is reasonable in the absence of a warrant under the search-incident-to-arrest exception to the warrant requirement because there is a great need for testing a motorist's level of intoxication, and the impact on privacy interests is only slight. Id. at 2184. Blood tests, in contrast, are "significantly more intrusive" and, thus, require a warrant or exigent circumstances. Id. The Court then rejected the respondents' alternative argument that blood tests were "justified based on the driver's legally implied consent to submit to them." Id. at 2185. In doing so, the Court stated that its "prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, " that the petitioners did not question the constitutionality of implied consent laws, and nothing said in its opinion "should be read to cast doubt on them." Id. Nevertheless, the Court held, a state could not impose criminal penalties on a motorist for refusing to submit to a blood test because there had to "be a limit on the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads." Id. In short, "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Id. at 2186.

         According to DOT, a week after Birchfield was decided, the Pennsylvania District Attorneys Association and a number of county district attorneys participated in a teleconference with DOT. (DOT's Br. at 12-13.) During that teleconference, the district attorneys expressed concern that if the warning about enhanced criminal penalties was not removed from Form DL-26, drivers arrested for DUI who consented to a blood test would be able to successfully move to suppress the results in the criminal proceedings. (Id. at 13.) DOT agreed to amend Form DL-26 by creating one for breath tests and one for blood tests, the latter of which is now Form DL-26B. (Id.)

         The district attorneys' concern was subsequently validated by the Superior Court's decision that when a motorist is given the warning contained in Section 1547(b)(2)(ii), the warning is "partially inaccurate" and, consequently, the results of the blood test must be suppressed and an enhanced sentence for refusing the blood test must be vacated. Commonwealth v. Evans, 153 A.3d 323, 331 (Pa. Super. 2016) (vacating the trial court's suppression order finding that the driver consented to a draw of his blood where the officer warned the driver that he would be subject to enhanced criminal penalties if he refused); see also Commonwealth v. Giron, 155 A.3d 635, 640 (Pa. Super. 2017) (vacating sentence and holding that a defendant is not subject to enhanced criminal penalties when he refuses an officer's request under the Implied Consent Law to take his blood).

         In July 2017, the General Assembly amended Sections 1547(b)(2)(ii) and 3804(c) of the Vehicle Code, consistent with the holding in Birchfield, to clarify that enhanced criminal penalties could be imposed only for refusing to submit to "chemical breath testing, " not blood testing. Section 4 of Act of July 20, 2017, P.L. 333 (emphasis added). A licensee, thus, is no longer subject to enhanced criminal penalties for refusing an officer's request to test his blood absent a search warrant.[4]Concomitantly, since a licensee is no longer subject to enhanced criminal penalties for refusing a blood test, the General Assembly removed from Section 1547(b)(2)(ii) the obligation of an officer to warn a licensee about that consequence. With that background, the question Licensee presents for our consideration is what effect, if any, does an officer's failure to warn a licensee, as ostensibly required by Section 1547(b)(2)(ii) at the time a sample of his blood was requested, have on the suspension of his license.

         II. Factual Background

         Following Birchfield, but before the decisions in the Superior Court cases applying Birchfield to criminal matters and the General Assembly's amendments to Sections 1547(b)(2)(ii) and 3804(c) of the Vehicle Code, the following undisputed events occurred. On July 17, 2016, Trooper Timothy McConnell (Trooper) of the Pennsylvania State Police responded to a single-car accident scene where there was a Buick Rendezvous lying on its roof in a ditch. No operator was present. Once Trooper identified Licensee's mother as the registered owner, he proceeded to her residence where he spoke with her and Licensee. While Trooper spoke with Licensee, Licensee exhibited classic signs of intoxication. There were also physical markings on Licensee, such as dirt on his hands and a seat belt rash on the left side of his neck, which suggested he had been driving the vehicle when it had crashed. Trooper asked Licensee's father to transport Licensee back to the accident scene down the road so that Trooper could administer field sobriety tests. After Trooper administered one test to Licensee, Licensee put his head down and told Trooper to arrest him. Trooper attempted to administer a preliminary breath test, but Licensee refused. Trooper placed Licensee under arrest on suspicion of DUI and transported him back to the State Police barracks. There, Trooper read verbatim the warnings contained in DOT Form DL-26B. Those warnings provide, in relevant part,

1. You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code.
2. I am requesting that you submit to a chemical test of blood.
3. If you refuse to submit to the blood test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months.
4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to ...

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