from the Order Entered August 31, 2017 In the Court of Common
Pleas of Berks County Criminal Division at No(s):
BEFORE: PANELLA, J., OLSON, J., and STEVENS [*] , P.J.E.
Commonwealth of Pennsylvania appeals from the August 31, 2017
orders granting Lisa Gay Robertson's
("Appellee's") motions to suppress blood
alcohol concentration ("BAC") blood test results
obtained during the course of two driving under the influence
("DUI") investigations. The trial court found
Appellee's consent to the blood draws was involuntary
because of the warnings contained on Form DL-26B that were
read to her by the police officers both times that she was
asked to consent to a blood test. These cases require us to
consider the DL-26B form adopted by the Pennsylvania
Department of Transportation ("PennDOT") after the
Supreme Court of the United States' decision in
Birchfield v. North Dakota, 136 S.Ct. 2160
(2016). We join the Commonwealth Court and hold
that PennDOT permissibly revised the original DL-26 form to
comply with Birchfield. In light of this conclusion,
and after considering the totality of the circumstances
surrounding Appellee's consents to the blood tests, we
conclude that Appellee's consent was voluntary in both
cases. Accordingly, we reverse the trial court's
suppression orders and remand for further proceedings
consistent with this opinion.
factual background of these two cases is as follows. On
September 29, 2016, police responded to a motel parking lot
for a report of an impaired driver. When they arrived,
Appellee was unable to complete field sobriety tests. Police
arrested her for suspicion of DUI. Appellee was transported
to the hospital where a police officer read her the DL-26B
form. That form notified Appellee that she could face civil
penalties for failing to consent to a blood draw. The form
did not inform Appellee that she would be subjected to
enhanced criminal penalties if she refused a blood
test. Appellee consented to the blood draw,
which showed she had a BAC of .386.
October 26, 2016, Appellee was involved in an automobile
accident in a motel parking lot. When police arrived,
Appellee was sitting on the ground and was unable to stand.
Police arrested her for suspicion of DUI. Appellee was
transported to the hospital where a police officer read her
the DL-26B form. That form notified Appellee that she could
face civil penalties for failing to consent to a blood draw.
The form did not inform Appellee that she would be subjected
to enhanced criminal penalties if she refused a blood
test.Appellee consented to the blood draw, which
showed she had a BAC of .411.
procedural history of these cases is as follows. On November
30, 2016, the Commonwealth charged Appellee via two criminal
informations with two counts of DUI - general
impairment and two counts of DUI - highest
rate. On May 12, 2017, Appellee moved in both
cases to suppress the blood draw evidence. Thereafter, the
trial court held a suppression hearing. On August 31, 2017,
the trial court issued findings of fact and conclusions of
law and granted Appellee's suppression motions. The
Commonwealth filed these interlocutory appeals as of
right. See Pa.R.A.P. 311(d) ("In a
criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order
that does not end the entire case where the Commonwealth
certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.").
Commonwealth presents two issues for our review:
1. Did the trial court err in suppressing evidence pursuant
to Birchfield . . . where the DL-26B form was
modified to remove the objectionable language regarding the
enhanced penalties for a blood testing refusal, rendering the
consent to the blood draw[s] voluntary?
2. Did the trial court err in suppressing evidence pursuant
to Birchfield . . . where the totality of the
circumstances indicates that the consent to the blood draw[s]
Commonwealth's Brief at 4.
the Commonwealth's issues challenge the trial court's
suppression orders. We review a trial court's order
suppressing evidence for an abuse of discretion and our scope
of review consists of "only the evidence from the
defendant's witnesses along with the Commonwealth's
evidence that remains uncontroverted." Commonwealth
v. Maguire, 175 A.3d 288, 291 (Pa. Super. 2017)
we review the legal and administrative developments regarding
Pennsylvania's DUI laws over the past two years. In
Birchfield, the Supreme Court of the United States
held that criminal penalties imposed on individuals who
refuse to submit to a warrantless blood test violate the
Fourth Amendment (as incorporated into the Fourteenth
Amendment). Birchfield, 136 S.Ct. at 2185-2186.
Within one week of that decision, PennDOT revised the DL-26
form to remove the warnings mandated by 75 Pa.C.S.A. §
3804 that theretofore informed individuals suspected of DUI
that they would face enhanced criminal penalties if they
refused to submit to a blood test. It was this revised form,
known as Form DL-26B (which did not include warnings
regarding enhanced criminal penalties), that the police
officers read to Appellee.
the creation of the DL-26B form in the wake of
Birchfield, numerous cases pending before trial and
appellate courts involved defendants who were given the
warnings contained in the original DL-26 form that
erroneously informed them that they would face enhanced
criminal penalties if they refused to submit to a blood test.
This Court ultimately held that the Form DL-26 warnings read
to defendants prior to PennDOT's revision were partially
inaccurate. Commonwealth v. Evans, 153 A.3d 323, 331
(Pa. Super. 2016) ("Since Birchfield held that
a state may not 'impose criminal penalties on the refusal
to submit to [a warrantless blood] test, ' the police
officer's advisory to [a]ppellant [that refusal to submit
to the test could subject appellant to more severe penalties
set forth in 75 Pa.C.S.A. § 3804(c)] was partially
inaccurate."). Thus, when evaluating whether a
defendant's consent to a blood draw was voluntary or
involuntary, trial courts are required to consider whether
the defendant was given inaccurate information regarding the
criminal consequences of refusing to submit to a blood test.
Id., citing Birchfield, 136 S.Ct. at 2186.
This Court subsequently held that imposing enhanced criminal
penalties for failure to consent to a blood draw constituted
an illegal sentence because of Birchfield.
Commonwealth v. Giron, 155 A.3d 635, 639 (Pa. Super.
20, 2017, Governor Thomas W. Wolf signed into law Act 30 of
2017 which amended 75 Pa.C.S.A. § 3804 to comport with
Birchfield. Specifically, Act 30 provides for
enhanced criminal penalties for individuals who refuse to
submit to blood tests only when police have obtained a search
warrant for the suspect's blood. See 75
Pa.C.S.A. § 3804(c). Hence, from July 20, 2017 onwards
the DL-26B form conforms to statutory law. For approximately
the previous 13 months, including at the times of
Appellee's arrests, the DL-26B form warnings were
consistent with the law as interpreted by the Supreme Court
of the United States and this Court, but inconsistent with
the (unconstitutional) provisions of Title 75.
this background in mind, we turn to the Commonwealth's
first issue. The trial court found that PennDOT lacked the
authority to amend the DL-26 form prior to Act 30's
passage. Specifically, the trial court found that
PennDOT's amendment of the DL-26 form to conform to
Birchfield violated the warnings provision contained
in the Motor Vehicle Code at the time. Specifically, that
provision provided that "[i]t shall be the duty of the
police officer to inform the person [suspected of DUI] that .
. . if the person refuses to submit to chemical testing, upon
conviction or plea for violating section