from the Order Entered May 1, 2017 In the Court of Common
Pleas of Centre County Criminal Division at No(s):
BEFORE: PANELLA, J., OLSON, J., and STEVENS [*] , P.J.E.
Commonwealth of Pennsylvania appeals from the May 1, 2017
order granting Gary William Miller's
("Appellee's") motion to suppress blood alcohol
concentration ("BAC") test results, obtained after
the reading of the newly-revised DL-26B form and without a
warrant, during the course of a driving under the influence
("DUI") investigation. Appellee argues that,
because of a prior DUI arrest in which he received warnings
pursuant to the prior DL-26 form, Appellee subjectively
believed that the new form threatened enhanced criminal
punishment if he refused to consent to a blood draw. We hold
that, under these circumstances, Appellee's (incorrect)
subjective belief regarding the law cannot form the basis for
the suppression of his BAC results. Accordingly, we reverse
the trial court's suppression order and remand for
further proceedings consistent with this opinion.
factual background of this case is as follows. On June 29,
2016, Officer Robert Holt responded to a motor vehicle
accident. Officer Holt suspected that Appellee, a driver of a
vehicle involved in the accident, was intoxicated and
requested Appellee perform field sobriety tests. Appellee
failed those tests and was arrested for suspicion of DUI.
Holt transported Appellee to the hospital where he read him
the DL-26B form. That form informed Appellee that he would
face possible civil penalties for failing to submit to a
blood test; however, the form did not include a warning
regarding enhanced criminal penalties for refusing a blood
test. Thereafter, Appellee consented to the blood draw which
showed that he had a BAC of .223.
procedural history of this case is as follows. On February
16, 2017, the Commonwealth charged Appellee via criminal
information with DUI - general impairment and DUI - highest
rate. On February 23, 2017, Appellee moved to
suppress the blood draw evidence. The trial court conducted a
suppression hearing on March 28, 2017. On May 1, 2017, the
trial court granted Appellee's suppression motion. The
Commonwealth filed a timely notice of appeal. See
Pa.R.A.P. 311(d) (providing that the Commonwealth may take an
appeal as of right from an interlocutory order that
substantially handicaps a prosecution).
Commonwealth presents one issue for our review:
Did the trial court err in granting Appellee's [m]otion
to [s]uppress because[, ] based on the totality of the
circumstances, Appellee voluntarily consented to the blood
draw because, inter alia, he was not told that he
would face harsher criminal penalties for refusing to submit
to a blood test?
Commonwealth's Brief at 4.
Commonwealth's sole issue challenges the trial
court's suppression order. 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)
with this opinion, we issued Commonwealth v.
Robertson, 1493 MDA 2017 (Pa. Super. May 3, 2018). In
Robertson, we held that defendants are presumed to
know case law in addition to statutory law. Id.
(slip op. at 9-12). Moreover, in Robertson we
rejected the argument that police have an affirmative duty to
inform defendants that they do not face enhanced criminal
penalties if they refuse a blood test. Id. (slip op.
at 12-13). Hence, we reject the trial court's rationale
for granting Appellee's suppression motion.
determined that the trial court's rationale was flawed,
we turn to the alternative bases for affirmance advanced by
Appellee; i.e. the totality of the circumstances
establish that Appellees did not voluntarily consent to the
blood draw. Under Commonwealth v. Evans, 153 A.3d
323 (Pa. Super. 2016), a trial court must consider the
totality of the circumstances when determining if a
defendant's consent to a blood draw was voluntary.
Id. at 328 (citation omitted). As our Supreme Court
While there is no hard and fast list of factors evincing
voluntariness, some considerations include: 1) the
defendant's custodial status; 2) the use of duress or
coercive tactics by law enforcement personnel; 3) the
defendant's knowledge of his right to refuse to consent;
4) the defendant's education and intelligence; 5) the
defendant's belief that no incriminating evidence will be