       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Garlick,                               :
                            Appellant         :
                                              :
                     v.                       :    No. 48 C.D. 2017
                                              :    Argued: November 15, 2017
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing                    :



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, Judge1


OPINION BY
JUDGE COHN JUBELIRER                              FILED: January 3, 2018


       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


       1
         This decision was reached before the conclusion of Judge Cosgrove’s service with this
Court on December 31, 2017.
       2
         Section 1547(b)(1)(i) reads, in pertinent part, as follows:
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.


       (1) If any person placed under arrest for a violation of section 3802 [relating to
           driving under influence of alcohol or controlled substance] 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 department shall suspend
           the operating privilege of the person as follows:

          (i) Except as set forth in subparagraph (ii), for a period of 12 months.

75 Pa. C.S. § 1547(b)(1)(i).
        3
          When the General Assembly amended Section 1547(b)(2), effective on February 1, 2004,
it provided as follows:

       It shall be the duty of the police officer to inform the person that: (i) the person’s
       operating privilege will be suspended upon refusal to submit to chemical testing;
       and (ii) upon conviction, plea or adjudication of delinquency for violating Section



                                                 2
       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


       3802(a) [of the Vehicle Code], the person will be subject to the penalties provided
       in section 3804(c) (relating to penalties).

Former 75 Pa. C.S. § 1547(b)(2). Section 1547(b)(2)(ii) now reads,

       It shall be the duty of the police officer to inform the person that: . . . (ii) if the
       person refuses to submit to chemical breath testing, upon conviction or plea for
       violating section 3802(a)(1), the person will be subject to the penalties provided in
       section 3804(c) (relating to penalties).

75 Pa. C.S. § 1547(b)(2)(ii) (emphasis added).


                                                 3
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



                                          4
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

       4
         Section 3804(c) now provides that a licensee’s punishment may be enhanced for refusing
testing of his blood “pursuant to a valid search warrant.” 75 Pa. C.S. § 3804(c). Like Section
1547(b)(2)(ii), Section 3804(c) was amended by the Act of July 20, 2017, so as to eliminate
enhanced criminal penalties for refusing a test of one’s blood in the absence of a valid search
warrant. Section 4 of the Act of July 20, 2017, P.L. 333. A licensee need not be warned that
refusing a request for blood pursuant to a valid search warrant will subject him to enhanced
criminal penalties.


                                              5
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 submit to a blood test, you will have
         refused the test.


                                         6
(Reproduced Record (R.R.) at 37a.) Trooper did not inform Licensee that he would
be subject to enhanced criminal penalties under Section 3804(c) of the Vehicle Code
if he refused to consent, even though that warning was, at the time, apparently
required by Section 1547(b)(2)(ii) of the Vehicle Code.5                     (R.R. at 25a, 29a.)
Licensee refused to submit to a blood test.
       Thereafter, DOT suspended Licensee’s operating privilege for one year.
Licensee appealed to common pleas, arguing that DOT could not suspend his
operating privilege because Trooper did not warn him that he would be subject to
enhanced criminal penalties as required by Section 1547(b)(2)(ii). Licensee noted
that DOT removed this warning, which had been previously part of DOT Form DL-
26, following the United States Supreme Court’s decision in Birchfield because of
concerns that the warning would adversely impact criminal prosecutions. However,
Licensee argued, until the General Assembly amends Section 1547(b)(2)(ii) to
reflect Birchfield, police officers must give the statutorily mandated warning.
       Common pleas denied Licensee’s appeal and reinstated his one-year
suspension, concluding that DOT met its burden of proof and, Licensee, in
opposition, failed to prove that he was incapable of making a knowing and conscious
refusal.      (Common Pleas Order, Jan. 4, 2017.)                 In its opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), Pa. R.A.P 1925(a), common
pleas concluded that in light of Birchfield and subsequent Pennsylvania law applying

       5
           At that time former Section 1547(b)(2)(ii) provided as follows:

       It shall be the duty of the police officer to inform the person that: . . . (ii) if the
       person refuses to submit to chemical testing, upon conviction or plea for violating
       section 3802(a)(1) [of the Vehicle Code], the person will be subject to the penalties
       provided in section 3804(c) [of the Vehicle Code] (relating to penalties).

Former 75 Pa. C.S. § 1547(b)(2)(ii).


                                                  7
Birchfield, Form DL-26B is accurate. (Common Pleas Op. at 9, Mar. 6, 2017.)
Common pleas recounted that following Birchfield, the Superior Court has held that,
“in the absence of a warrant or exigent circumstances,” a licensee could not be
subject to enhanced criminal penalties for refusing a blood test. (Id. at 8 (quoting
Giron, 155 A.3d at 640).) Therefore, common pleas concluded, a police officer
cannot warn a licensee about the potential of an enhanced criminal penalty for
refusing a blood test because to do so would be “unduly coercive and deceivingly
inaccurate.” (Id. at 9.) Trooper here, common pleas held, performed his duty by
limiting his warning to Licensee that Licensee’s refusal to submit to a blood test
would result in a suspension of Licensee’s operating privilege, and that was what
DOT imposed when Licensee refused. (Id. at 9-10.)


III.   Analysis
       On appeal,6 Licensee argues that, at the time it was read to him, Form DL-
26B did not conform with the mandate contained in Section 1547(b)(2)(ii) in that he
was not informed that his refusal would subject him to enhanced criminal penalties
and, therefore, his operating privilege should not have been suspended. Licensee
further argues that Birchfield has no bearing on civil license suspension proceedings,
and Pennsylvania law has distinguished between civil license suspension
proceedings and criminal proceedings, indicating that the latter does not affect the
former.




       6
         Our standard of review is limited to determining whether common pleas committed an
error of law, whether common pleas abused its discretion, or whether the findings of fact are
supported by substantial evidence. Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 954
A.2d 761, 765 n.3 (Pa. Cmwlth. 2008).


                                               8
      In order to support a suspension of Licensee’s operating privilege under
Section 1547(b)(1), DOT had the burden of proving the following:

      (1) Licensee was arrested for violating Section 3802 of the Vehicle
      Code by a police officer who had “reasonable grounds to believe” that
      Licensee was operating or was in actual physical control of the
      movement of a vehicle while in violation of Section 3802 (i.e., while
      driving under the influence); (2) Licensee was asked to submit to a
      chemical test; (3) Licensee refused to do so; and (4) Licensee was
      specifically warned that a refusal would result in the suspension of his
      operating privileges and would result in enhanced penalties if he was
      later convicted of violating Section 3802(a)(1).

Martinovic v. Dep’t of Transp., Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa.
Cmwlth. 2005) (emphasis added). There is no constitutional requirement for a police
officer to provide any warning to a licensee of the consequences of his failure to
submit to a blood test, Negovan v. Department of Transportation, Bureau of Driver
Licensing, __ A.3d __, __ (Pa. Cmwlth., No. 200 C.D. 2017, filed Oct. 24, 2017),
slip op. at 5; however, there is a statutory requirement, 75 Pa. C.S. § 1547(b)(2)(ii).
It is undisputed that at the time Trooper requested that Licensee submit to a blood
test, Section 1547(b)(2)(ii) provided that “[i]t shall be the duty of the police officer
to inform the person that: . . . (ii) if the person refuses to submit to chemical testing,
upon conviction or plea for violating section 3802(a)(1), the person will be subject
to the penalties provided in section 3804(c) (relating to penalties).” Former 75 Pa.
C.S. § 1547(b)(2)(ii) (emphasis added). Our Supreme Court has said that the
language then in Section 1547(b)(2)(ii) “command[ed]” a police officer to warn a
licensee about the possibility of enhanced criminal penalties if convicted of DUI.
Dep’t of Transp., Bureau of Driver Licensing v. Weaver, 912 A.2d 259, 264 (Pa.
2006) (emphasis added).




                                            9
      It is true, as Licensee argues, that the language contained in Section
1547(b)(2)(ii) was mandatory at the time Trooper requested that Licensee submit to
a blood test. However, while Section 1547(b)(2)(ii) then “command[ed]” that a
warning about enhanced criminal penalties be given, Weaver, 912 A.2d at 264, the
purpose behind that provision is to make a licensee aware “of the consequences of a
refusal to take the test so that he can make a knowing and conscious choice.” Dep’t
of Transp., Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 877 (Pa. 1989); see
Commonwealth v. Myers, 164 A.3d 1162, 1171 n.12 (Pa. 2017) (plurality) (“purpose
of [Section 1547(b)(2)] ‘is to entitle arrestees to the information necessary to assess
the dire consequences they face if they fail to consent to chemical testing, to ensure
their choice in that regard is knowing and conscious, as we described in O’Connell’”
(quoting Weaver, 912 A.2d at 267 (Baer, J., dissenting))); Weaver, 912 A.2d at 265
(noting that the warning contained in Section 1547(b)(2)(ii) “informs the arrestee
that the penalties are concrete, and not inconsequential”).
      Following Birchfield, and as the Superior Court concluded thereafter, a
licensee cannot be criminally punished for refusing a police officer’s request to test
his blood pursuant to the Implied Consent Law. Although, at the time Trooper
requested that Licensee submit to a blood test, Section 1547(b)(2)(ii) still required a
warning that a licensee would be subject to enhanced criminal penalties under
Section 3804(c) for refusing a test of his blood, Licensee could not, as a matter of
constitutional law, be subject to such penalties. Stated simply, enhanced criminal
penalties were not a consequence of Licensee’s refusing the requested blood test.
Licensee’s argument is, in effect, that because the General Assembly did not
immediately amend Section 1547(b)(2)(ii), DOT and the police had to continue to
apply Section 1547(b)(2)(ii). However, the effect of Birchfield and the Superior



                                          10
Court cases that followed was to render the criminal penalties warned of in Section
1547(b)(2)(ii) as applied to blood testing unenforceable and to effectively sever that
section from the rest of the Vehicle Code. See Section 1925 of the Statutory
Construction Act of 1972, 1 Pa. C.S. § 1925 (“[t]he provisions of every statute shall
be severable” with certain exceptions not applicable here); Commonwealth v. Batts,
163 A.3d 410, 441 (Pa. 2017) (emphasis added) (stating that “[i]f a provision of a
statute is invalidated for any reason . . . a court must sever it from the remaining,
valid portion of the statute”).
      Licensee adds that Birchfield has no impact on civil license suspension
appeals, as recognized by this Court in Boseman v. Department of Transportation,
Bureau of Driver Licensing, 157 A.3d 10, 21 (Pa. Cmwlth. 2017), and that
Pennsylvania Courts have consistently distinguished between civil license
suspension proceedings and criminal DUI proceedings. In Boseman, the licensee’s
license was suspended when she refused to submit to a test of her blood under the
Implied Consent Law after being arrested for suspicion of DUI. Id. at 12. On appeal
to this Court, the licensee claimed, inter alia, that under Birchfield, in the absence
of exigent circumstances, the arresting officer had to obtain a warrant for a test of
her blood, and his failure to do so required that her appeal be sustained. Id. at 19.
We concluded that Birchfield was not applicable because “[b]y its own language
Birchfield does not apply to implied consent laws that merely impose civil
penalties.” Id. at 21 (citing Birchfield, 136 S. Ct. at 2185 (“Petitioners do not
question the constitutionality of [implied-consent laws that impose civil penalties
and evidentiary consequences on motorists who refuse to comply], and nothing we
say here should be read to cast doubt on them.”)). Rather, we said, “Birchfield
addressed the constitutionality of a State statute that made it a crime to refuse a



                                         11
warrantless blood test after being arrested for DUI.” Id. (emphasis in original).
Thus, we concluded, while “Birchfield may have some impact in criminal DUI
proceedings in Pennsylvania where enhanced penalties based on refusal of a blood
test are imposed, such is not the case before us in this civil license suspension appeal
under the Implied Consent Law.” Id.
       Licensee’s point from his citation to Boseman and other, similar cases is not
entirely clear.7 We have held that Birchfield does not invalidate a civil license
suspension based on the argument that a warrant was required to obtain the requested
blood test. Id. at 21. However, what Licensee seems to suggest is that, in order for
his license suspension to be valid, Trooper had to violate Licensee’s Fourth
Amendment rights by warning Licensee about the no-longer enforceable enhanced
criminal penalties because Section 1547(b)(2)(ii) still required that warning. This
constitutional violation, according to Licensee’s interpretation of these cases, would
have no impact on his license suspension and, therefore, there was no reason for




       7
          In further support of Licensee’s position that violations of a licensee’s rights in the
criminal context have no impact on civil license suspension proceedings and, thus, there is no
reason to consider Birchfield, he cites to the following cases: Dep’t of Transp. v. Wysocki, 535
A.2d 77, 79 (Pa. 1987) (holding that whether police roadblock was unconstitutional had no bearing
on the validity of a license suspension because Section 1547 merely required an arrest, not a valid
one, and, thus, the exclusionary rule does not apply to a license suspension proceeding); Sitoski v.
Dep’t of Transp., Bureau of Driver Licensing, 11 A.3d 12, 20 (Pa. Cmwlth. 2010) (holding that
two-hour window for submitting to a chemical test as set forth in Section 3802(a)(2) of the Vehicle
Code relates to a licensee’s criminal prosecution for DUI and, thus, has no bearing on whether
implied consent warnings were properly given for purposes of suspending licensee’s license);
Witmer v. Dep’t of Transp., Bureau of Driver Licensing, 880 A.2d 716, 719 (Pa. Cmwlth. 2005)
(rejecting licensee’s argument that the warnings required by Miranda v. Arizona, 384 U.S. 436
(1966), had to precede an officer’s request to draw blood before the licensee’s license could be
suspended because “the sanctions imposed by the Implied Consent Law are civil in nature and
wholly unrelated to the consequences of a criminal DUI prosecution”).



                                                12
common pleas to consider Birchfield in this proceeding.8                     To put it simply,
Licensee’s argument encourages officers to violate licensees’ Fourth Amendment
rights thereby jeopardizing their criminal prosecutions in order to comply with
Section 1547(b)(2)(ii) even though the criminal penalty in the warning is no longer
enforceable and, therefore, no longer a consequence of refusing a blood test. We
cannot countenance such an argument.
       Given our review of the current state of the law, Licensee’s argument that his
license must be reinstated because he was not warned that he would be subject to no
longer constitutionally permissible enhanced criminal penalties for refusing blood
testing is unpersuasive. Trooper specifically and accurately warned Licensee about
the consequences of refusing a blood test that remain following Birchfield, that is,
the suspension of his license.9 Therefore, common pleas did not err when it denied
Licensee’s appeal.


IV.    Conclusion
       For the foregoing reasons, we affirm the January 4, 2017 Order of common
pleas denying Licensee’s appeal of DOT’s one-year suspension of his operating
privilege.


       8
          On October 18, 2017, an en banc panel of this Court heard argument in Renfroe v.
Department of Transportation, Bureau of Driving Licensing, docket number 1907 C.D. 2016,
which raised the issue of whether, after Birchfield, a warning that the licensee would be subject to
enhanced criminal penalties for refusing a blood test warranted reversal of his civil license
suspension. A decision from this Court in Renfroe is pending.
       9
         Once DOT meets its burden, the burden shifts to the licensee to establish that he was
incapable of making a knowing and conscious refusal. Dep’t of Transp., Bureau of Motor Vehicles
v. Kyong Rok Yi, 562 A.2d 1008, 1009 (Pa. Cmwlth. 1989). Common pleas concluded that
Licensee did not prove that his refusal was not knowing and conscious. Although Licensee does
not clearly assert in his brief that his refusal was not knowing and conscious, to the extent his
argument could be construed in this fashion, it lacks merit for the reasons already articulated.


                                                13
                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge




Judge Cosgrove concurs in result only.




                                         14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Garlick,                       :
                       Appellant      :
                                      :
                  v.                  :   No. 48 C.D. 2017
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing            :


                                   ORDER


      NOW, January 3, 2018, the Order of the Court of Common Pleas of Erie
County, dated January 4, 2017, is AFFIRMED.




                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
