J-S52025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

JEREMY D. GREENFIELD

                            Appellee                   No. 230 MDA 2017


                Appeal from the Order Entered January 9, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0004192-2016


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                           FILED AUGUST 07, 2017

       The Commonwealth of Pennsylvania appeals from the trial court’s

order granting Defendant Jeremy D. Greenfield’s pretrial motion to suppress

the results of a warrantless blood test1 following the stop of his vehicle for

suspected Driving Under the Influence (DUI).          After careful review, we

affirm.

       While responding to a call for a theft-in-progress in a residential

development, police observed Greenfield’s vehicle driving at a high rate of

speed down the center of the road.             Officer Rocco DeCamillo stopped

____________________________________________


1
  In its notice of appeal, the Commonwealth certifies that the trial court’s
order granting Greenfield’s motion to suppress terminates or substantially
handicaps the prosecution of this case. See Pa.R.A.P. 311(d). Thus, the
appeal is properly before us. Commonwealth v. Ivy, 146 A.3d 241, 244
n.2 (Pa. Super. 2016).
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Greenfield’s vehicle and immediately noticed an odor of burnt marijuana

emanating from the vehicle.           The officer suspected that Greenfield was

under the influence of the controlled substance as he exhibited bloodshot

and glassy eyes and was “droopy” in appearance.                Greenfield refused to

answer Officer DeCamillo’s question regarding when he had last used

marijuana.     The officer administered four field sobriety tests, all of which

Greenfield failed. Police uncovered marijuana and drug paraphernalia in the

center console of Greenfield’s car.

        Greenfield was arrested and transported to St. Joseph’s Hospital for

blood testing. After reading Greenfield his O’Connell2 warnings from a DL-

26 form, Greenfield consented to a blood draw.3 The results indicated that
____________________________________________


2
   The O'Connell warnings are contained on Pennsylvania’s DL-26 form,
which provides that if a person refuses to consent to a blood test, his or her
license could be suspended for at least one year and that, if convicted of
violating 75 Pa.C.S. § 3802(a), he or she will face more severe penalties
because of the refusal.       See Commonwealth, Dep’t of Trans. v.
O’Connell, 555 A.2d 873 (Pa. 1989).
3
    The affidavit of probable cause states, in pertinent, part:

        At 0411 hrs., I transported GREENFIELD to the St. Joseph’s
        Medical Center (SJMC) for chemical testing. We arrived at SJMC
        at 0424 hrs. At 0400 hrs., I read the chemical test warnings to
        GREENFIELD and he consented to a chemical test of blood. He
        signed the DL-26 Chemical Test Warnings form and the SJMC
        Lab Request form.

        At 0443 hrs., four samples             of   blood   were   drawn   from
        GREENFIELD’s right arm.

Affidavit of Probable Cause, at 6/28/16 at 7.
(Footnote Continued Next Page)


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Greenfield had tetrahydrocannabinol, or THC, the active chemical compound

in marijuana, in his blood. On June 28, 2016, Greenfield was charged with

DUI-controlled substance (1st offense),4 possession with intent to use drug

paraphernalia,5 and possession of a small amount of marijuana for personal

use.6 On October 13, 2016, Greenfield filed a pretrial motion to suppress,

claiming that there was no probable cause for the vehicle stop and that the

blood draw was an illegal seizure under Birchfield v. North Dakota, 136

S.Ct. 2160 (2016).

        After a hearing, the trial court issued findings of fact and conclusions

of law and granted Greenfield’s suppression motion on January 9, 2016. On

February 1, 2016, Commonwealth filed this timely appeal. On appeal, the

Commonwealth raises the following issues for our review:

        (1)   Did the trial court err in suppressing evidence of the
              [Greenfield]’s blood test results pursuant to Birchfield v.
              North Dakota, [] 136 S.Ct. 2160 [] (2016)[,] in a drug-
              related DUI prosecution, where blood testing is the only
              available method in Pennsylvania to determine whether a
              suspect is driving under the influence of a controlled
              substance, and thus the Pennsylvania Implied Consent
              Statute is wholly enforceable?

        (2)   Did the trial court err in suppressing evidence of
              [Greenfield]’s blood test results pursuant to Birchfield v.
                       _______________________
(Footnote Continued)


4
    75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § (d)(1)(i).
5
    35 P.S. § 780-113(a)(32).
6
    35 P.S. § 780-113(a)(31).



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            North Dakota, [] 136 S.Ct. 2160 [] (2016) in a drug-
            related DUI prosecution, where the potential penalties
            listed on the DL-26 form properly reflected the penalties
            related to the drug-related DUI convictions, rendering the
            consent to the blood draw voluntary?

      On June 23, 2016, the United States Supreme Court decided

Birchfield, supra, in which it invalidated any criminal sanction assessed for

refusing to submit to a blood test in the absence of a warrant. The Court

determined that with regard to blood tests, the police must either seek a

warrant or show exigent circumstances.      As a result, the Court held that

“motorists cannot be deemed to have consented to submit to a blood test on

pain of committing a criminal offense.” Id. at 2186.     In the case where a

motorist is not prosecuted for refusing a test but rather has submitted to a

test where the police gave inaccurate information that the law required

submission, the Court remanded the case to the state court to “reevaluate

the motorist’s consent given the partial inaccuracy of the officer’s advisory.”

Id.

      On appeal, the Commonwealth contends that suppression under

Birchfield was improper where blood testing is the only available method in

Pennsylvania to determine whether a suspect is driving under the influence

of a controlled substance.

      In Commonwealth v. Ennels, 2017 PA Super 217 (filed July 11,

2017), our Court recently addressed the issue regarding Birchfield’s

applicability in drug-related, not alcohol-related, DUI prosecutions. In that

case, the Commonwealth similarly argued that because breath tests are only


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useful in determining the presence and amount of alcohol in a suspect’s

system, warrantless blood tests should be permissible in drug-related DUI

investigations. In rejecting that argument, our Court held that “[n]o matter

the substance suspected of affecting a particular DUI arrestee, Birchfield

requires that a blood test be authorized either by a warrant (or case-specific

exigency) or by individual consent not based on the pain of criminal

consequences.” Id. at *11.7 Thus, this issue was squarely addressed and

rejected in Ennels; therefore, the Commonwealth’s first claim on appeal

fails.

         In its final issue, the Commonwealth asserts that because the DL-26

form properly reflected the penalties for drug-related DUI convictions,

Greenfield’s consent to blood testing was voluntary.            Specifically, the

Commonwealth contends that implied consent remains a valid exception to

the warrant requirement.

         In Ennels, our Court addressed this same issue, concluding that:

         [E]ven if the DUI charges related to only controlled substances,
         we would conclude that the trial court did not err in finding [the
         defendant’s] consent was involuntary. The DL-26 form read to
         and signed by [the defendant] informed him that he would face
         enhanced penalties if he refused the blood test. . . . That those
         happened to be the same penalties for DUI (controlled
         substance) is irrelevant to the voluntary-consent analysis.
____________________________________________


7
  In fact, the Supreme Court in Birchfield considered and rejected the
argument that warrantless blood tests should be permissible as searches
incident to arrest because they can detect substances other than alcohol.
136 S.Ct. at 2185.



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     Although the form identified the applicable statutes, it did not
     mention the penalties for DUI of a controlled substance, or that
     the enhancements applied only to those convicted of DUI of
     alcohol.   Under the totality of the circumstances, a
     reasonable person would believe that the enhanced
     penalties applied if he refused the chemical test and later
     was convicted, regardless of whether he was convicted of
     an alcohol-related DUI or a drug-related DUI.

Id. at *16-*17 (emphasis added).    Again, the Ennels court rejected the

exact argument advanced by the Commonwealth on appeal. Thus, it has no

merit.

     Order affirmed.

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2017




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