J-A11037-17

                                  2017 PA Super 236

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    THOMAS S. BELL                             :   No. 1490 MDA 2016

                 Appeal from the Order Entered August 22, 2016
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0001098-2015


BEFORE:      SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                                FILED JULY 19, 2017

         The Commonwealth appeals from the order entered by the Court of

Common Pleas of Lycoming County awarding Appellee Thomas S. Bell a new

trial.   The Commonwealth claims the trial court erred in finding that the

prosecution’s admission of evidence of Appellee’s refusal to submit to a

blood test at his trial on driving under the influence (DUI) charges violated

his Fourth Amendment right to be free from unreasonable searches.

         As we conclude that it is constitutionally permissible to deem

motorists to have consented to the specific provision of Pennsylvania’s

Implied Consent Law that sets forth evidentiary consequences for the refusal

of chemical testing upon a lawful arrest for DUI, we reverse and remand for

sentencing.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      On May 16, 2015, officers initiated a traffic stop of Appellee’s vehicle

after observing that Appellee did not have his taillights properly illuminated.

After approaching the vehicle, officers noticed Appellee’s breath smelled of

alcohol and his eyes were glossy and bloodshot.         Appellee admitted to

recently consuming four beers, was unsteady on his feet, and failed to

perform field sobriety testing satisfactorily. Appellee’s breath test revealed

his blood alcohol concentration (BAC) was .127%. Officers placed Appellee

under arrest for DUI and transported him to the Williamsport Hospital for

blood testing.    After Appellee was read the DL-26 Chemical Testing

Warnings, he refused to submit to a blood sample.

      On May 18, 2015, Appellee was charged with DUI ─ general

impairment (75 Pa.C.S.A. § 3802(a)(1)) and a summary charge for required

lighting (75 Pa.C.S.A. § 4302(a)(1)).    On March 8, 2016, Appellee filed a

pre-trial motion to dismiss the DUI charge, specifically arguing that he had a

constitutional right to refuse to submit to a warrantless blood test.    Thus,

Appellee claimed that his refusal to submit to a blood test should have been

suppressed. On April 28, 2016, the trial court denied Appellee’s motion.

      On the same day, Appellee proceeded to a bench trial in which the

Commonwealth was permitted to introduce testimony from the arresting

officer detailing how Appellee had refused a blood test. The officer explained

that Appellee had asserted that he not want a needle in his arm because he

claimed that he had contracted hepatitis from a hospital needle on a prior




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occasion. At the conclusion of the trial, Appellee was convicted of the DUI

charge and the summary traffic violation.

       On July 1, 2016, Appellee filed a motion for reconsideration of the trial

court’s denial of his motion to dismiss, arguing that evidence of his refusal to

submit to a blood test should have been deemed inadmissible at trial.

Specifically, Appellee cited to the recent decision in Birchfield v. North

Dakota, ___U.S.___, 136 S.Ct. 2160, 2186, 195 L.Ed.2d 560 (2016), in

which the Supreme Court found that implied consent laws cannot deem

motorists to have given consent to criminal penalties upon their refusal to

submit to chemical testing. On August 19, 2016, the trial court entered an

order granting Appellee a new trial at which the prosecution would not be

allowed to introduce evidence of Appellee’s refusal. The Commonwealth filed

this timely appeal.

       We review a trial court’s decision to grant or deny a motion for a new

trial under an abuse of discretion standard.1 Czimmer v. Janssen Pharm.,

Inc., 122 A.3d 1043, 1051 (Pa.Super. 2015). Moreover,



____________________________________________


1
  We note that the trial court entered this order granting a new trial before
entering a judgment of sentence. However, “[i]nterlocutory appeals as of
right are permitted from orders in criminal proceedings awarding a new trial
where the Commonwealth claims that the lower court committed an error of
law.” Commonwealth v. MacDougall, 841 A.2d 535, 536–37 (Pa.Super.
2003) (citing Pa.R.A.P. 311). As this is the procedural posture before us, we
may proceed to review the trial court’s actions.




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      [w]e must review the court's alleged mistake and determine
      whether the court erred and, if so, whether the error resulted in
      prejudice necessitating a new trial. If the alleged mistake
      concerned an error of law, we will scrutinize for legal error. Once
      we determine whether an error occurred, we must then
      determine whether the trial court abused its discretion in ruling
      on the request for a new trial.

Id. (quoting ACE Am. Ins. Co. v. Underwriters at Lloyds and Cos., 939

A.2d 935, 939 (Pa.Super. 2007)).

      The Commonwealth argues that Appellee is not entitled to a new trial

as it was constitutionally permissible for the prosecution to introduce

evidence of Appellee’s refusal to consent to a warrantless blood test at his

trial on DUI charges to show consciousness of guilt. Appellee asserts that he

had a constitutional right to refuse the warrantless blood test pursuant to

Birchfield; thus, Appellee argues the admission of the refusal evidence

penalized him for exercising a constitutional right.

      Before   reaching   the   parties’   specific   arguments,   we   begin   by

discussing the statutory scheme and related decisional law governing

chemical testing of individuals suspected of DUI and related traffic offenses.

Our courts have established that driving is a privilege, not a fundamental

right. Commonwealth, Dep't of Transp., Bureau of Driver Licensing v.

Scott, 546 Pa. 241, 250, 684 A.2d 539, 544 (1996); Commonwealth v.

Jenner, 681 A.2d 1266, 1273 (Pa.Super. 1996).             To hold this privilege,

drivers must meet necessary qualifications and comply with the terms of the

Implied Consent Law (75 Pa.C.S.A. § 1547), which requires motorists to

submit to chemical sobriety tests when requested to do so by an authorized


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law enforcement officer under the specific circumstances outlined in the

statute. As a general rule, Section 1547 provides in pertinent part:

         Any person who drives, operates or is in actual physical control
         of the movement of a vehicle in this Commonwealth shall be
         deemed to have given consent to one or more chemical tests of
         breath or blood for the purpose of determining the alcoholic
         content of blood or the presence of a controlled substance if a
         police officer has reasonable grounds to believe the person to
         have been driving, operating or in actual physical control of the
         movement of a vehicle:

         (1)   in violation of section … 3802 (relating to driving under
               influence of alcohol or controlled substance) …

75 Pa.C.S.A. § 1547(a)(1).

         The Implied Consent Law sets forth penalties to be imposed upon a

person who is arrested for DUI and refuses to submit to chemical testing.

First,    Section   1547(b)    requires   the   Pennsylvania    Department    of

Transportation to suspend the driver’s license for at least one year.         75

Pa.C.S.A. § 1547(b).      Second, Section 1547(e) allows for evidence of the

motorist’s refusal to submit to chemical testing to be admitted at his or her

criminal trial on DUI charges:

         (e) Refusal admissible in evidence.--In any summary
         proceeding or criminal proceeding in which the defendant is
         charged with a violation of section 3802 or any other violation of
         this title arising out of the same action, the fact that the
         defendant refused to submit to chemical testing as required by
         subsection (a) may be introduced in evidence along with other
         testimony concerning the circumstances of the refusal. No
         presumptions shall arise from this evidence but it may be
         considered along with other factors concerning the charge.

75 Pa.C.S.A. § 1547(e).



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       In addition to license suspension and evidentiary consequences in DUI

prosecution for refusal of chemical testing, the Legislature also set forth

criminal penalties for individuals who are convicted of DUI charges in a

separate section of the Vehicle Code; Section 3804(c) provides that a

motorist who is convicted of DUI under Section 3802 and refused to submit

to testing shall be sentenced to enhanced penalties as delineated in that

provision. 75 Pa.C.S.A. § 3804(c).

       In post-trial motion, Appellee limited his argument to challenge the

application of Section 1547(e) in this case as the prosecution was allowed to

admit evidence of his refusal at his trial on DUI charges. As the trial court

granted Appellee’s post-trial motion and awarded him a new trial before

Appellee was sentenced, Appellee was not subjected to the criminal penalties

set forth in Section 3804(c).2        The trial court granted Appellee’s post-trial

motion as it found that the admission of evidence of Appellee’s refusal to

submit to a warrantless blood test penalized Appellee for refusing to waive

his Fourth Amendment right to be free from warrantless searches.

       The Fourth Amendment of the United States Constitution provides that

the “right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated.”


____________________________________________


2
   In its appellate brief, the Commonwealth states that pursuant to
Birchfield, Appellee’s sentence could not be enhanced as a result of his
refusal of chemical testing.



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U.S. Const. amend. IV.      Blood tests and breath tests constitute searches

under    the   Fourth   Amendment    as   they   implicate   privacy   concerns.

Birchfield, 136 S.Ct. at 2173.      See also Commonwealth v. Ellis, 223,

608 A.2d 1090, 1091 (Pa.Super. 1992) (providing that “the administration of

a blood test is a search within the meaning of the Fourth Amendment if it is

performed by an agent of the government”).

        As a general rule, the Fourth Amendment requires that, in order to

conduct a search of an individual or his or her property, law enforcement

must obtain a warrant, supported by probable cause and issued by a neutral

magistrate.     Commonwealth v. Arter, ___Pa.___, 151 A.3d 149, 153

(2016). Although a warrantless search is per se unreasonable, this rule is

subject to several established exceptions, which includes the consent

exception.     Commonwealth v. Evans, 153 A.3d 323, 327–28 (Pa.Super.

2016).     While trial court recognized Appellee was not subjected to a

governmental search as he refused to submit to blood testing, the trial court

asserted that Appellee’s “exercise of his Fourth Amendment right to be free

from warrantless searches cannot be used as evidence of consciousness of

guilt.” Trial Court Opinion, 8/22/16, at 3.

        Though not expressly stated, the trial court’s rationale for granting

Appellee a new trial derives from principles set forth in Griffin v. California,

380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), in which the Supreme

Court of the United States held that the commentary made by the trial court

and prosecutor suggesting to the jury that the defendant’s failure to testify

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J-A11037-17



at trial could be considered evidence of guilt impermissibly burdened the

defendant’s privilege against self-incrimination.   The Court rejected this

commentary as “a penalty imposed by courts for exercising a constitutional

privilege.” Id. at 614, 85 S.Ct. at 1229.

      Nevertheless, the Supreme Court declined to extend the penalty

analysis set forth in Griffin to a case involving a defendant’s refusal to

submit to warrantless blood testing. In South Dakota v. Neville, 459 U.S.

553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Supreme Court concluded

that the admission of evidence of a defendant’s refusal of a warrantless

blood test did not violate Appellee’s Fifth Amendment right against self-

incrimination or his Fourteenth Amendment right to due process. The Court

acknowledged its previous decision in Schmerber v. California, 384 U.S.

757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), in which it had concluded that

the prosecution’s admission of the results of a compelled blood test in the

defendant’s trial on DUI charges did not violate the defendant’s Fifth

Amendment right against self-incrimination as blood evidence was not

testimonial, but merely physical.

      In reaching its ultimate conclusion that Appellee’s right against self-

incrimination and right to due process had not been violated, the Neville

Court observed that the specific rule set forth in Griffin forbidding

commentary on a defendant’s refusal to testify at trial was inapplicable as “a

person suspected of drunk driving has no constitutional right to refuse to

take a blood-alcohol test.”    Id. at 560 n.10, 103 S.Ct. 916. The Court

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J-A11037-17



explained that the right to refuse a blood or breath test is not one of

“constitutional dimension” but rather is “simply a matter of grace bestowed

by the [state] legislature.” Id. at 565, 103 S.Ct. 916.

      Consistent with this federal precedent, this Court has also emphasized

that an individual suspected of drunk driving does not have a constitutional

right to refuse chemical testing. In Commonwealth v. Graham, 703 A.2d

510 (Pa.Super. 1997), the appellant argued that trial counsel was ineffective

in failing to move to suppress the results of his warrantless blood test as the

appellant claimed his consent had been coerced in violation of the Fifth

Amendment when he was informed that his refusal would be used as

evidence of guilt in a trial on DUI charges. Thus, the appellant claimed that

Section 1547(e), which sets forth the evidentiary consequences imposed on

a motorist who refuses to submit to chemical testing upon a lawful arrest for

DUI, was an unconstitutional penalty to the exercise of an individual’s right

to refuse the test.

      However,    the   Graham     Court   concluded      that   the   evidentiary

consequences for the refusal of a blood test set forth in Section 1547(e) did

not violate the appellant’s constitutional rights, as the appellant’s “right to

refuse the blood test is derived only from Section 1547 itself and not from

the Constitution.” Id. at 512. This Court emphasized that there is:

      no constitutional right to refuse chemical testing.... [D]riving in
      Pennsylvania is a civil privilege conferred on individuals who
      meet the necessary qualifications set forth in the Vehicle Code....
      Under the terms of the Implied Consent Law, one of the
      necessary qualifications to continuing to hold that privilege is

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J-A11037-17


      that a motorist must submit to chemical sobriety testing, when
      requested to do so by an authorized law enforcement officer in
      accordance with the prerequisites of the Implied Consent Law.
      The obligation to submit to testing is related specifically to the
      motorist's continued enjoyment of the privilege of maintaining
      his operator's license.

Commonwealth v. Graham, 703 A.2d 510, 512 (Pa.Super. 1997) (quoting

Commonwealth v. Stair, 548 Pa. 596, 699 A.2d 1250 (1997) (equally

divided Court)). See also Scott, 546 Pa. at 250, 684 A.2d at 544 (same).

      Based on the reasoning set forth in Neville and Graham, we find

Appellee had no constitutional right to refuse a blood test upon his lawful

arrest for DUI and thus, it was constitutionally permissible for the

prosecution to introduce evidence of this refusal at his trial on DUI charges.

      The trial court’s reliance on Birchfield is misplaced; this decision does

not support the trial court’s assertion that Appellee had a constitutional right

to refuse chemical testing. In Birchfield, the Supreme Court of the United

States reviewed the constitutionality of implied consent laws that criminalize

a driver’s refusal to undergo warrantless chemical testing upon a lawful

arrest for drunk driving. In the course of doing so, the High Court assessed

whether the search-incident-to-arrest exception to the Fourth Amendment

could justify warrantless chemical testing.     After analyzing the impact of

blood and breath tests on individual privacy interests as well as the need for

BAC tests in criminal prosecution, the Court concluded that law enforcement

may require a motorist to submit to warrantless breath testing as a search

incident to an arrest for drunk driving; however, this exception does not

justify warrantless blood testing, which is a more intrusive process.

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J-A11037-17



     Nevertheless, while the High Court rejected the application of the

search-incident-to-arrest exception to compel a motorist to submit to a

blood test, it expressed approval of implied consent laws that deem a

motorist to have consented to be subject to certain penalties if they refuse

to submit to a warrantless blood test upon his or her arrest for DUI.

Acknowledging the consent exception to the warrant requirement, the Court

provided as follows:

     It is well established that a search is reasonable when the
     subject consents, and that sometimes consent to a search need
     not be express but may be fairly inferred from context. Our
     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.
     Petitioners do not question the constitutionality of those
     laws, and nothing we say here should be read to cast
     doubt on them.

Birchfield, 136 S.Ct. at 2185 (emphasis added) (citations omitted).     See

also Missouri v. McNeely, ___U.S.___, 133 S.Ct. 1552, 1556, 185 L.Ed.2d

696 (2013) (plurality) (acknowledging with approval that implied consent

laws are employed as a tool to secure BAC evidence as “most States allow

the motorist’s refusal to take a BAC test to be used as evidence against him

in a subsequent criminal prosecution”).

     While expressing approval of the imposition of civil penalties and

evidentiary consequences on motorists who refuse to comply with chemical

testing upon their arrest, the Birchfield Court concluded that it was

unreasonable for implied consent laws to impose criminal penalties to punish



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J-A11037-17



a motorist for refusing consent. The Supreme Court’s decision in Birchfield

did not provide that the an individual has a constitutional right to refuse a

warrantless blood test, but stressed that “there must be a limit to the

consequences to which motorists may be deemed to have consented by

virtue of a decision to drive on public roads.” Birchfield, 136 S.Ct. at 2185

(emphasis added).

      Based on the Supreme Court’s language approving civil penalties set

forth in implied consent laws, we conclude that it is reasonable to deem

motorists to have consented to civil penalties such as license suspension and

evidentiary consequences if they choose to refuse to submit to chemical

testing upon a lawful arrest for DUI.

      For the foregoing reasons, we conclude that Appellee was not entitled

to a new trial based on the admission of evidence of his refusal to submit to

a warrantless blood test. Accordingly, we reverse the trial court’s order and

remand for sentencing.

      Order reversed. Remand for sentencing. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017



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