         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John T. Hayes,                          :
                  Appellant             :
                                        :
            v.                          :
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :   No. 1196 C.D. 2017
Bureau of Driver Licensing              :   Submitted: January 26, 2018


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                     FILED: February 27, 2018

            John T. Hayes (Licensee) appeals from the order of the Court of
Common Pleas of Dauphin County (trial court) reinstating the 12-month driver’s
license suspension imposed by the Pennsylvania Department of Transportation,
Bureau of Driver Licensing (DOT) pursuant to the Vehicle Code’s Implied Consent
Law, 75 Pa. C.S. § 1547(b) (Implied Consent Law), and dismissing Licensee’s
appeal of the same. Upon review, we affirm.
            No dispute exists as to the underlying facts of this matter. On January
2, 2017, Lower Swatara Township Police stopped a vehicle driven by Licensee for
suspicion of Driving Under the Influence in violation of 75 Pa. C.S. § 3802 (DUI).
At that time, police requested that Licensee submit to chemical testing, including
blood testing, and read Licensee DOT’s DL-26B implied consent form, which
explained that Licensee would face a driver’s license suspension of at least 12
months for failure to submit to blood testing. Licensee refused to submit to blood
testing.
                 On February 1, 2017, DOT notified Licensee by letter that, as a result
of his refusal to submit to blood testing on January 2, 2017, his driver’s license would
be suspended pursuant to the Implied Consent Law for 12 months effective March
8, 2017. On March 1, 2017, Licensee appealed to the trial court.1 The trial court
conducted a license suspension hearing on June 22, 2017. On August 3, 2017, the
trial court entered its order dismissing Licensee’s driver’s license suspension appeal
and reinstating the 12-month suspension. On August 28, 2017, Licensee filed a
timely notice of appeal to this Court.2
                 Licensee raises two claims in this appeal. First, Licensee alleges the
Implied Consent Law in effect at the time of his arrest required that police give both
the civil and criminal consequence warnings for refusal when requesting a suspect
submit to chemical testing following a DUI arrest, and that the police’s failure to
comply requires reversal of his license suspension. See Licensee’s Brief at 4.
Second, Licensee alleges the criminal consequences warning of chemical testing
refusal cannot be severed from the Implied Consent Law without “eviscerating” the
intent of the General Assembly. Id.
                 Licensee first argues that DOT cannot suspend his license because the
warning police provided Licensee via the DOT DL-26B form did not comply with
statutory requirements. See Licensee’s Brief at 8-20. Licensee notes that the text of
the Implied Consent Law stated that it shall be the duty of police to inform
       1
           Licensee’s appeal to the trial court tolled Licensee’s license suspension.
       2
         “Our standard of review in a license suspension case is to determine whether the factual
findings of the trial court are supported by competent evidence and whether the trial court
committed an error of law or an abuse of discretion.” Negovan v. Department of Transp., Bureau
of Driver Licensing, 172 A.3d 733, 735 n.4 (Pa. Cmwlth. 2017).
                                                   2
individuals that (1) their refusal will result in a suspension of operating privileges,
and (2) a post-refusal DUI conviction will result in increased criminal penalties. Id.
Licensee claims that DOT’s DL-26B form, which discusses only the civil
repercussions of chemical testing refusal, did not comply with the statute and
provided inadequate warnings regarding testing refusal consequences. Id. We
disagree.
             Initially, we note:

             To sustain a license suspension under Section 1547(b) of
             the Vehicle Code [75 Pa. C.S. § 1547(b)], DOT has the
             burden of establishing that (1) the licensee was arrested for
             drunken driving by a police officer having reasonable
             grounds to believe that the licensee was driving while
             under the influence, (2) the licensee was requested to
             submit to a chemical test, (3) the licensee refused to do so
             and (4) the licensee was warned that refusal would result
             in a license suspension. Once DOT meets this burden, the
             burden shifts to the licensee to establish that he or she
             either was not capable of making a knowing and conscious
             refusal or was physically unable to take the test.

Giannopoulos v. Department of Transp., Bureau of Driver Licensing, 82 A.3d 1092,
1094 (Pa. Cmwlth. 2013) (quoting Wright v. Department of Transp., Bureau of
Driver Licensing, 788 A.2d 443, 445 (Pa. Cmwlth. 2001)). In the instant matter, the
parties stipulated that Licensee was driving the vehicle, that police had probable
cause upon which to arrest him and request that he submit to chemical testing, and
that police reviewed the DOT DL-26B form with Licensee prior to his refusal to
submit to blood testing.       Thus, we need only concern ourselves with the
adequacy/propriety of the warning police gave Licensee prior to his refusal of
chemical testing.


                                          3
               Pennsylvania’s Implied Consent Law authorizes driver’s license
suspensions for drivers arrested for DUI but who refuse requested chemical testing
and requires police to inform motorists of the consequences of refusal. See 75 Pa.
C.S. § 1547(b)(1) & (2). At the time of Licensee’s arrest, the text of the Implied
Consent Law directed police to issue certain warnings to individuals arrested for
DUI in conjunction with a request to conduct chemical testing as follows:

               (2) 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) 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). The first of these warnings explained the civil
penalties drivers faced for refusing chemical testing. 75 Pa. C.S. § 1547(b)(2)(i).
The second warning explained possible increased criminal penalties an individual
who refused chemical testing would face following conviction for a Section
3802(a)(1) DUI offense.3 75 Pa. C.S. § 1547(b)(2)(ii). The communication of both

       3
          Vehicle Code Section 3802(a)(1) defines general impairment DUI and is the only section
that permits conviction of a defendant for an alcohol-based DUI charge in the absence of a known
blood or breath alcohol concentration, the determination of which requires chemical testing. 75
Pa. C.S. § 3802(a)(1). Normally, Section 3802(a)(1) convictions receive sentences pursuant to the
possible maximum penalties outlined in Section 3804(a), the least severe classification of possible
penalties for DUI convictions in Pennsylvania. See 75 Pa. C.S. § 3804(a). However, pursuant to
former Section 1547(b)(2)(ii), defendants arrested for alcohol-based DUIs who refused chemical
testing, and who were convicted only of a Section 3802(a)(1) general impairment DUI as a result,

                                                4
the criminal and civil warnings regarding refusals was mandatory under former
Section 1547. See Department of Transp., Bureau of Driver Licensing v. Weaver,
912 A.2d 259, 264 (Pa. 2006) (noting Section 1547(b) commanded police to warn
motorists of the criminal enhancements attendant to refusal of chemical testing in
DUI arrests).
               Pursuant to the Implied Consent Law, DOT created the DL-26 form,
which warned motorists arrested for DUI about the enhanced civil and criminal
penalties for chemical testing refusals thusly:

               If you refuse to submit to the chemical 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. In addition, if you refuse
               to submit to the chemical test, and you are convicted of
               violating Section 3802(a)(1) (relating to impaired driving)
               of the Vehicle Code, then, because of your refusal, you
               will be subject to more severe penalties set forth in Section
               3804(c) (relating to penalties) of the Vehicle Code. These
               are the same penalties that would be imposed if you were
               convicted of driving with the highest rate of alcohol,
               which include a minimum of 72 consecutive hours in jail
               and a minimum fine of $1,000, up to a maximum of five
               years in jail and a maximum fine of $10,000.

DOT Form DL-26. Police used this DL-26 form to comply with the requirements
of Section 1547 during DUI arrests from early 2004 through mid-2016.



would face punishment under Section 3804(c) instead of Section 3804(a). Section 3804(c) details
the permissible criminal penalties for DUI convictions under Sections 3802(c) (pertaining to the
highest level of intoxication) and 3802(d) (pertaining to controlled substance intoxication), which
are significantly more severe than the penalties outlined in Section 3804(a). See 75 Pa. C.S. §
3804(c).

                                                5
               On June 23, 2016, the Supreme Court of the United States rendered its
decision in Birchfield v. North Dakota, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016).
In Birchfield, the Supreme Court determined that criminal penalties imposed by the
states upon individuals who refuse to submit to a warrantless blood draw violated
the Fourth Amendment’s protection against unreasonable search and seizure. Id. at
2185-86. Thereafter, the Superior Court of Pennsylvania held, “that, pursuant to
Birchfield, in the absence of a warrant or exigent circumstances justifying a search,
a defendant who refuses to provide a blood sample when requested by police is not
subject to the enhanced penalties provided in 75 Pa.C.S.[] §§ 3803-3804.”
Commonwealth v. Giron, 155 A.3d 635, 640 (Pa. Super. 2017); see also
Commonwealth v. Evans, 153 A.2d 323 (Pa. Super. 2016). On the civil side,4 this
Court determined that, although it may have some impact on criminal DUI
proceedings, Birchfield has no bearing on civil license suspensions under the Implied
Consent Law.5 Boseman v. Department of Transp., Bureau of Driver Licensing, 157
A.3d 10, 21 (Pa. Cmwlth.), appeal denied, 170 A.3d 996 (Pa. 2017).
               In response to the Birchfield decision, and after conferring with the
Pennsylvania District Attorneys’ Association, DOT revised the DL-26 form to
remove reference to the enhanced criminal repercussions of refusal.6 The DOT’s

       4
          “[A] license suspension stemming from a refusal to submit to chemical testing is a
separate administrative proceeding from a criminal DUI proceeding arising out of the same
incident.” Boseman v. Department of Transp., Bureau of Driver Licensing, 157 A.3d 10, 20 (Pa.
Cmwlth.), appeal denied, 170 A.3d 996 (Pa. 2017).
       5
         In fact, the Supreme Court of the United States expressly stated that it did not intend its
decision in Birchfield to cast doubt on the constitutionality of implied consent laws. See Birchfield,
136 S.Ct. at 2185.
       6
        Prior to Birchfield, the DOT’s DL-26 form contained accurate 1547(b) warnings. Yourick
v. Department of Transp., Bureau of Driver Licensing, 965 A.2d 341, 345 (Pa. Cmwlth. 2009) (en
banc).

                                                  6
revised form – designated as the DL-26B form – eliminated the Section
1547(b)(2)(ii) warning that refusal to submit to chemical testing would result in
possible enhanced criminal penalties. See DOT DL-26B Form. The DL-26B form
preserved, however, the Section 1547(b)(2)(i) warning that refusal to submit to
requested chemical testing would result in at least a 12-month driver’s license
suspension. Id.
                 On July 20, 2017, the General Assembly amended the Implied Consent
Law to eliminate the section 1547(b)(2)(ii) enhanced criminal penalties for refusing
to submit to the warrantless testing of one’s blood.7 See Act of July 20, 2017, P.L.
333, § 3; see also 75 Pa. C.S. § 1547.
                 Here, Licensee first contends that, because the language of the Implied
Consent Law ostensibly requires both a civil and criminal warning, the DL-26B form
that police read to Licensee, which omitted the criminal warning, failed to comply
with the requirements of former Section 1547, and that such failure requires a
reversal of his 12-month license suspension for refusal to submit to the blood test
requested by police upon his arrest for alcohol-based DUI. See Licensee’s Brief at
8-20. Effectively, Licensee argues that, because the General Assembly had not yet
       7
           The current version of section 1547 reads, in relevant part:

                         (2) 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 the person will be subject
                 to a restoration fee of up to $2,000; and
                         (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). Under this amended statute, the increased penalties for chemical testing
refusal apply only to breath testing, the legality of which was unaffected by Birchfield. See Giron,
155 A.3d at 640 n.13.
                                                    7
amended former Section 1547 at the time of his arrest, DOT and the police had to
continue to apply former Section 1547 in its entirety, including the mandated
warning regarding unconstitutional enhanced criminal penalties for chemical testing
refusal. We disagree.
             At the time of arrest, police read Licensee the warnings as provided in
the revised DL-26B form. The revised DL-26B form includes the civil warning from
Section 1547(b)(2)(i), but not the criminal warning previously mandated by former
Section 1547(b)(2)(ii).     Pursuant to Birchfield, and the Superior Court of
Pennsylvania’s subsequent holdings thereon, the DL-26B form now provides an
accurate warning of the civil consequences Pennsylvania motorists face for refusing
to submit to requested chemical testing when arrested for DUI.
             Licensee forwards the exact argument this Court recently reviewed and
rejected in Garlick v. Department of Transp., Bureau of Driver Licensing, ___ A.3d
___, 2018 WL 264629 (Pa. Cmwlth., 48 C.D. 2017, filed Jan. 3, 2018). In Garlick,
the appellant argued that, at the time police read him the DL-26B warning, the form
did not include warnings about both criminal and civil consequences for refusal, and
therefore failed to conform to the text of Section 1547(b)(2)(ii), which the General
Assembly had not yet amended. Garlick, slip op. at 1-2, 2018 WL 264629 at *1. As
the Court explained, “Licensee’s argument [was], 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).” Id., slip op. at 10, 2018 WL 264629
at *5. In discussing appellant’s claim, this Court noted that,

             [a]lthough, at the time [police] 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
                                          8
             constitutional law, be subject to such penalties. Stated
             simply, enhanced criminal penalties were not a
             consequence of Licensee’s refusing the blood test.

Id. In rejecting the claim, the Court further explained:

             Licensee seems to suggest [] that, in order for his license
             suspension to be valid, [the police] 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 [the court of] common pleas to consider
             Birchfield in this proceeding. 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.
Id., slip op. 12-13, 2018 WL 264629 at *5 (footnote omitted).

             Licensee in the instant matter raises the same argument as did the
appellant in Garlick. For the same reasons explained in Garlick, we find Licensee’s
argument that his license must be reinstated because police failed to provide a
warning that his refusal would subject him to no longer constitutionally permissible
enhanced criminal penalties to be unpersuasive. See Garlick, slip op. 12-13, 2018
WL 264629 at *5. As in Garlick, the police in the instant matter specifically and
accurately warned Licensee of the civil consequences he faced by refusing to submit
to blood testing. Accordingly, Licensee’s first claim fails.


                                          9
            In his second claim, Licensee argues the enhanced criminal
consequences warning of former Section 1547(b)(2)(ii) cannot be severed from
Section 1547 without eviscerating the statute of the intent of the General Assembly.
See Licensee’s Brief at 20-31. Licensee argues the General Assembly intended the
criminal and civil sanctions contained within the Implied Consent Law to go together
to ensure the statutory penalties for refusal were “truly consequential: a ‘double
whammy.’” Id. at 22. We disagree.
            Initially, Licensee’s contention regarding the punitive intent of the
Implied Consent Law is incorrect. License suspension is a separate civil sanction
the General Assembly created to forward its goal of preventing drunk driving, and
which the General Assembly imposed in addition to the statutorily permissible
criminal punishments outlined in Section 3804 (which increase with the severity of
intoxication and frequency of violation). As this Court has explained:

            The objective of the Implied Consent Law is to protect the
            public by providing an effective means of denying
            intoxicated motorists the privilege of using the highways
            of this Commonwealth. A further purpose of the Implied
            Consent Law is to facilitate the acquisition of chemical
            analyses and to permit their utilization in legal
            proceedings. The mischief sought to be remedied by the
            Implied Consent Law is the number of fatalities and
            injuries which occur every day on our roads as a result of
            drivers operating vehicles under the influence of alcohol
            and/or drugs. The objective of preserving the life and
            health of this Commonwealth’s motorists is most
            important, and the statute should be liberally construed to
            effect its objective and promote justice. See 1 Pa.C.S. §
            1928(b).

Occhibone v. Department of Transp., Bureau of Driver Licensing, 645 A.2d 327,
330–31 (Pa. Cmwlth. 1994) (some internal citations and footnote omitted). See also
                                        10
Todd v. Department of Transp., Bureau of Driver Licensing, 723 A.2d 655, 658 (Pa.
1999) (“The implied consent provisions of the Vehicle Code were enacted to address
the hazard of impaired drivers on public roads.”). In addition to denying intoxicated
motorists the future privilege of using the Commonwealth’s highways, the former
Section 1547(b)(2) warnings served the purpose of enlightening motorists “of the
consequences of a refusal to take the test so that he can make a knowing and
conscious choice.” Department of Transp., Bureau of Traffic Safety v. O’Connell,
555 A.2d 873, 877 (Pa. 1989). Thus, the dual purposes of the Section 1547(b)(2)(i)
warning are (1) to protect the citizenry of the Commonwealth from intoxicated
drivers and (2) to allow persons arrested for DUI to make an informed, knowing,
and conscious choice about whether or not to refuse chemical testing.
                Additionally, Section 1925 of Pennsylvania’s Statutory Construction
Act states that all statutes are presumptively severable. 1 Pa. C.S. § 1925;8 see also
Commonwealth v. Williams, 832 A.2d 962, 986 (Pa. 2003).



       8
           Section 1925 provides:

                § 1925. Constitutional construction of statutes

                The provisions of every statute shall be severable. If any provision
                of any statute or the application thereof to any person or
                circumstance is held invalid, the remainder of the statute, and the
                application of such provision to other persons or circumstances,
                shall not be affected thereby, unless the court finds that the valid
                provisions of the statute are so essentially and inseparably connected
                with, and so depend upon, the void provision or application, that it
                cannot be presumed the General Assembly would have enacted the
                remaining valid provisions without the void one; or unless the court
                finds that the remaining valid provisions, standing alone, are
                incomplete and are incapable of being executed in accordance with
                the legislative intent.

1 Pa. C.S. § 1925.
                                                 11
              Severance is precluded only where, after the void
              provisions are excised, the remainder of the statute is
              incapable of execution in accordance with legislative
              intent. Furthermore, the fact that an unconstitutional
              provision is found within an otherwise valid section does
              not preclude its severance.

Williams, 832 A.2d at 986 (internal citations omitted).
              Per Section 1547, DOT’s original DL-26 form informed licensees of
both the criminal and civil consequences of refusing requested chemical testing
following a DUI arrest.        Birchfield, and its Pennsylvania progeny, ruled
unconstitutional the criminal enhancements referenced in former Section
1547(b)(2)(ii) for refusal to submit to chemical testing. See Birchfield, Giron,
Evans. Those cases had no bearing, however, on the civil consequences contained
in Section 1547 – the license suspension – which forward the General Assembly’s
goal of preventing drunk driving in the Commonwealth and which are capable of
imposition in the absence of the enhanced criminal consequence language contained
in former Section 1547(b)(2)(ii). See Boseman. Accordingly, severance of the
invalid criminal enhancement language from the Implied Consent Law did not
“eviscerate” the statute and did not adversely affect the application of the remainder
of the statute.
              For the above reasons, the trial court properly dismissed Licensee’s
appeal and reinstated the suspension of his license. Accordingly, we affirm.




                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge



                                         12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA



John T. Hayes,                        :
                  Appellant           :
                                      :
            v.                        :
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :   No. 1196 C.D. 2017
Bureau of Driver Licensing            :

                                  ORDER


            AND NOW, this 27th day of February, 2018, the order of the Court of
Common Pleas of Dauphin County dated August 3, 2017 is hereby AFFIRMED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
