             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Wayne Patane,                              :
                              Appellant           :
                                                  :
                       v.                         :   No. 973 C.D. 2017
                                                  :   Argued: June 6, 2018
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 ELLEN CEISLER, Judge




OPINION BY
JUDGE COHN JUBELIRER                                  FILED: August 9, 2018


     Robert Wayne Patane (Licensee) appeals from a June 27, 2017 Order of the
Court of Common Pleas of Delaware County (common pleas). By order dated
March 28, 2017, common pleas denied Licensee’s 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.1 Subsequently, common pleas

     1
         Section 1547(b)(1)(i) reads, in pertinent part, as follows:
granted Licensee’s Motion for Reconsideration of the March 28, 2017 Order to the
extent of holding a hearing thereon, and then effectively confirmed its March 28,
2017 Order in its June 27, 2017 Order.2 On appeal, Licensee argues that he did not
knowingly and consciously refuse a chemical test of his blood and was, therefore,
deprived of procedural due process of law.                He claims this is because the
Pennsylvania State Police Trooper who stopped him provided him with “partially
incorrect” information, telling him that he would be subject to enhanced criminal
penalties if he refused the blood test and was convicted of driving under the influence
of alcohol (DUI). (Licensee’s Brief (Br.) at 8.) It was shortly after Licensee’s arrest
that the United States Supreme Court decided Birchfield v. North Dakota, 579 U.S.
__, 136 S. Ct. 2160 (2016), which held that a state may not impose criminal penalties
on a motorist for refusing to submit to a chemical test of his blood requested pursuant
to an implied consent law. Licensee argues that, had he been correctly informed that
only his operating privilege would be suspended if he refused a chemical test of his
blood, consistent with Birchfield, then he would have submitted to the test. We


       (1) If any person placed under arrest for a violation of section 3802 [relating to
       driving under the 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).
        2
          Licensee filed a notice of appeal from the March 28, 2017 Order, but once common pleas
granted reconsideration by its April 20, 2017 Order, we struck that notice of appeal. Thereafter,
following a hearing, common pleas denied Licensee’s Motion for Reconsideration. Ordinarily,
the denial of a motion for reconsideration is not appealable. Thorn v. Newman, 538 A.2d 105, 108
(Pa. Cmwlth. 1988). However, here, common pleas in effect granted reconsideration and then
confirmed its March 28, 2017 Order denying Licensee’s appeal of the suspension of his operating
privilege, which is appealable.



                                               2
conclude that Licensee knowingly and consciously refused chemical testing, and he
was not deprived of procedural due process. The Pennsylvania State Police Trooper
provided Licensee with a warning that was accurate at the time it was given. While
the portion of the warning about enhanced criminal penalties was retroactively
rendered inaccurate following Birchfield, Licensee’s refusal at the time was still
knowing and conscious and he was not deprived of procedural due process by the
suspension of his operating privilege. This is because Licensee knew, as the
Pennsylvania State Police Trooper had conveyed it to him, that if he refused
chemical testing he would be in violation of the law and he would be penalized for
that violation with the suspension of his operating privilege. Therefore, common
pleas properly reinstated the suspension of Licensee’s operating privilege.


I.     Factual and Procedural Background
       DOT informed Licensee that his operating privilege was suspended for one
year as a result of his failure to submit to chemical testing in violation of Section
1547(b)(1)(i) of the Vehicle Code. On May 19, 2016, Licensee appealed to common
pleas pursuant to Section 1550(a) of the Vehicle Code, 75 Pa. C.S. § 1550(a).3
       At the hearing, testimony was presented that on April 13, 2016, at 8:44 p.m.,
Pennsylvania State Police Trooper Erjon Mollaj (Trooper) was traveling southbound
along Route 476 in Radnor Township, Delaware County, when he observed
Licensee’s vehicle traveling at a high rate of speed. During the ensuing traffic stop,
while Trooper questioned Licensee, Trooper detected an odor of alcohol emanating
from Licensee’s breath and the inside of Licensee’s vehicle. Trooper testified that

       3
          Section 1550(a) provides that “[a]ny person . . . whose operating privilege has been . . .
suspended . . . by [DOT] shall have the right to appeal to the court vested with jurisdiction of such
appeals . . . .” 75 Pa. C.S. § 1550(a).


                                                 3
Licensee admitted to him that “he had a few drinks.” (Reproduced Record (R.R.) at
35a.) Licensee agreed, at Trooper’s request, to submit to a series of field sobriety
tests, which he did not successfully complete. Trooper placed Licensee under arrest
for DUI and transported him to a hospital for chemical testing of his blood. At the
hospital, Trooper read verbatim to Licensee DOT Form DL-26, which stated, in
relevant part, as follows:

      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.[4]

      3. If you refuse to submit to the chemical test, your operating
         privilege will be suspended for at least 12 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 $1,000.00, up to a maximum of five
         years in jail and a maximum fine of $10,000.

                                         ****


(Id. at 90a (emphasis added).) Trooper explained the warnings to Licensee twice.
Licensee signed the form, acknowledging that he understood the warnings, but
stated, “I’m not taking the test.” (Id. at 39a (emphasis added).)
      Licensee testified that when Trooper warned him that if he refused chemical
testing he could be imprisoned for five years and fined $10,000, Licensee “froze,

      4
          Trooper wrote the word “blood” into a blank space.


                                               4
completely.” (Id. at 67a.) Licensee further testified that he had “never had anything
criminal in [his] life before this” and he “was shell-shocked.” (Id.) Licensee
testified that if he had known that there were only civil penalties for refusing
chemical testing, and not also criminal penalties if he was subsequently convicted,
Licensee would have submitted to the blood test.
      At the conclusion of the evidence and in a brief, Licensee argued that
following his arrest, the United States Supreme Court issued Birchfield, which
precludes a state from imposing a criminal penalty for refusing to submit to a blood
test required under an implied consent law. Thus, Licensee continued, when Trooper
warned Licensee that he would be subject to criminal penalties if he refused a blood
test, Licensee was provided with incorrect information. (R.R. at 76a; Record (R.)
Item 7, Amended Memorandum of Law at 2.) Licensee noted that just days after the
Birchfield decision, DOT amended Form DL-26 and created DOT Form DL-26B,
which removed any mention of enhanced criminal penalties for refusing a blood
test.5 Since Licensee was informed that he was facing a criminal penalty, he believed
that he should neither speak nor consent to a blood test. Licensee contended that his
confusion was directly attributable to the incorrect information Trooper provided
him. Had Licensee been correctly informed that if he refused the blood test, he was
facing only a civil penalty of the loss of his operating privilege, Licensee, as he
testified, would have submitted to the blood test.
      Common pleas denied Licensee’s appeal and reinstated DOT’s suspension of
Licensee’s operating privilege. In its decision, common pleas rejected Licensee’s
reliance on Birchfield, concluding that it “does not apply to civil license suspension
proceedings.” (Common Pleas Opinion (Op.) ¶ 25.)


      5
          At the hearing, DOT Form DL-26B was entered into evidence. (R.R. at 59a, 85a.)


                                              5
      Licensee then filed a Motion for Reconsideration, arguing that common pleas
“did not address the central question” Licensee raised, “which was that [Licensee]
was denied due process because [Trooper] provided [Licensee] with incorrect
information[.]” (R. Item 7, Motion for Reconsideration at 1-2.)
      Common pleas granted the Motion for Reconsideration to the extent of
holding a hearing thereon, but then denied the Motion for Reconsideration, which,
in this instance, operated as confirmation of common pleas’ prior Order denying
Licensee’s appeal. Following Licensee’s filing of a Concise Statement of Errors
Complained of on Appeal, common pleas issued its opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a). Common
pleas noted that in Birchfield, the Court “did not question the constitutionality of the
implied consent laws that impose only civil penalties.” (Common Pleas 1925(a) Op.
(1925(a) Op.) at 9, Aug. 16, 2017.) Further, citing Boseman v. Department of
Transportation, Bureau of Driver Licensing, 157 A.3d 10, 20 (Pa. Cmwlth.), petition
for allowance of appeal denied, 170 A.3d 996 (Pa. 2017), common pleas noted that
this Court “emphasized that a license suspension stemming from a refusal to submit
to chemical testing [of blood] is a separate administrative proceeding from a criminal
DUI proceeding arising out of the same incident.” (1925(a) Op. at 9.) Common
pleas concluded that Birchfield and Boseman controlled. (Id. at 12.) Based on
Birchfield and Boseman, common pleas held that Licensee was not denied due
process. (Id. at 13.) Licensee was not denied due process because: Licensee was
advised of the civil penalty of the suspension of his operating privilege for refusing
a blood test; Licensee knowingly and voluntarily decided not to submit to a blood
test; and the civil penalty occurs in the context of a “separate administrative
proceeding from a criminal DUI proceeding arising out of the same incident.” (Id.



                                           6
at 12-13 (emphasis in original) (citing Boseman, 157 A.3d at 20).) Accordingly,
“the reading of the enhanced criminal penalties did not deny [Licensee] procedural
due process in the separate civil administrative proceeding.” (Id. at 13.)


II.    Discussion
       A.      Knowing and Conscious Choice/Procedural Due Process
       On appeal,6 Licensee argues that he was deprived of his right to procedural
due process of law guaranteed under the United States and Pennsylvania
Constitutions7 and the ability to make a knowing and conscious choice as to whether
to submit to or to refuse chemical testing of his blood because his decision was based
on information that was “partially incorrect.” (Licensee’s Br. at 8.) Licensee argues,
based on Birchfield, that Trooper misinformed Licensee that he would be subject to
criminal penalties if he refused a chemical test of his blood and was convicted of
DUI.       This misinformation alone, Licensee argues, is enough to overturn the
suspension of his operating privilege, regardless of whether he relied on it. (Id. at
18-19 (citing Peppelman v. Commonwealth, 403 A.2d 1041 (Pa. Cmwlth. 1979)).)
But, in this case, Licensee argues that he did rely on this misinformation in deciding
not to submit to a chemical test of his blood. Licensee notes he testified that, had he
known he was facing only a civil penalty of the suspension of his operating privilege

       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.” Garlick v. Dep’t of Transp., Bureau of Driver Licensing, 176
A.3d 1030, 1035 n.6 (Pa. Cmwlth. 2018) (en banc).
        7
          The Due Process Clause of the Fourteenth Amendment to the United States Constitution
provides, in relevant part, that no State shall “deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1. Due process under the Pennsylvania
Constitution emanates from a number of provisions, including article I, section 11, which provides,
in pertinent part, that “[a]ll courts shall be open; and every man for an injury done him in his lands,
goods, person or reputation shall have remedy by due course of law . . . .” Pa. Const. art. I, § 11.


                                                  7
if he refused to submit, he would have submitted to a chemical test of his blood.
Licensee, in addition to distinguishing Boseman on the facts, argues that it does not
matter that this is a civil proceeding. Due process of law, according to Licensee,
still requires that when faced with having to quickly decide whether to submit to
chemical testing of his blood, he be provided with correct information regarding the
consequences of refusing such a test before his operating privilege could be
suspended.
      DOT responds that common pleas correctly reinstated the suspension of
Licensee’s operating privilege. DOT asserts that, at the time Trooper warned
Licensee about the consequences of refusing a chemical test of his blood, which was
prior to Birchfield, those warnings were correct as a matter of law. DOT agrees with
Licensee that Birchfield applies to cases such as Licensee’s that were pending when
Birchfield was decided, but DOT contends that Birchfield does not warrant a
different result. This is because, as this Court stated in Boseman, Birchfield impacts
criminal DUI proceedings, not civil license suspension proceedings. In other words,
DOT argues, the two proceedings are separate. DOT asserts that where the results
of a blood test are involuntarily obtained, the remedy is the suppression of those
results in a criminal DUI proceeding. However, here, Licensee did not submit to a
blood test and, thus, there was nothing to suppress. Since Licensee was properly
warned of the civil consequences of refusing a blood test, and Licensee knowingly
and consciously refused the test, his operating privilege was properly suspended,
DOT asserts. Therefore, DOT argues, “it makes no difference” that Licensee was
warned about both civil and criminal penalties for refusing a blood test because he
was properly warned that his operating privilege would be suspended if he refused
the blood test, and the warnings about criminal penalties, as held in Boseman, have



                                          8
no impact on the suspension of Licensee’s operating privilege. (DOT’s Br. at 27.)
Accordingly, DOT concludes, Licensee knowingly and consciously refused a
chemical test of his blood, and he was not deprived of due process of law.
       Following the parties’ submission of their briefs, we directed the parties to
address the following questions at oral argument:

       Where a licensee suspected of driving under the influence is not given
       an accurate version of the warning, as required by Department of
       Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873
       (Pa. 1989), does the holding in Peppelman . . . require that the license
       suspension appeal be sustained? Stated otherwise, can a licensee make
       a knowing and conscious decision as to whether to consent to chemical
       testing where the warning is not legally accurate when given?
(Order, filed May 9, 2018.)
       Before addressing the merits of Licensee’s argument, it is helpful to our
analysis to review the developments in the law before and after Birchfield. Prior to
Birchfield, under former Section 1547(b)(2) of the Vehicle Code, a police officer
was obligated to warn a licensee stopped on suspicion of DUI that the failure to
submit to chemical testing, of either breath or blood, would result in the suspension
of the licensee’s operating privilege and subject the licensee to the imposition of
enhanced criminal penalties if the licensee was convicted of the DUI. Former 75
Pa. C.S. § 1547(b)(2);8 Martinovic v. Dep’t of Transp., Bureau of Driver Licensing,

       8
           Former Section 1547(b)(2) provided 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) upon conviction, plea or adjudication of delinquency for violating section
          3802(a) [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).


                                                9
881 A.2d 30, 34 (Pa. Cmwlth. 2005) (stating that in order to suspend a licensee’s
operating privilege under Section 1547(b)(1), DOT had to prove, inter alia, that a
“[l]icensee 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)”).
      On June 23, 2016, the United States Supreme Court issued its decision in
Birchfield. In Birchfield, the challenge was to two similar laws, one from Minnesota
and the other from North Dakota, 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. 579 U.S. at __, 136 S. Ct. at 2170-72. The Supreme Court held, in relevant
part, as follows: the search-incident-to-arrest exception to the warrant requirement
justifies a warrantless search of a motorist’s breath, but not his blood; implied
consent under an implied consent law does not justify the warrantless search of a
motorist’s blood; and a state may not impose criminal penalties on a motorist for
refusing a blood test requested under an implied consent law. On that latter point,
the Supreme Court concluded that it is unreasonable to impose criminal penalties on
a motorist who refuses “an intrusive blood test” required under an implied consent
law, stating “[t]here 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.” 579
U.S. at __, 136 S. Ct. at 2185-86. This point, however, was prefaced by the Court’s
statement that “[o]ur 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




                                        10
doubt on them.” 579 U.S. at __, 136 S. Ct. at 2185 (emphasis added; citations
omitted).
       Only a week after the Supreme Court decided Birchfield, at the request of the
Pennsylvania District Attorneys Association and a number of county district
attorneys, DOT amended DOT Form DL-26, “creating one for breath tests and one
for blood tests, the latter of which is now Form DL-26B.” Garlick v. Dep’t of
Transp., Bureau of Driver Licensing, 176 A.3d 1030, 1032-33 (Pa. Cmwlth. 2018)
(en banc). The amendment was prompted by the concern of these district attorneys
that warning licensees about enhanced criminal penalties for refusing a blood test, if
they were convicted of DUI, while still required by Section 1547(b)(2),9 would result
in the suppression of blood test results in criminal proceedings. In fact, as the district
attorneys anticipated, the Superior Court later held that when a licensee is warned
about criminal penalties for refusing a chemical test of his blood, that “warning is
‘partially inaccurate.’” Id. at 1033 (citing Commonwealth v. Evans, 153 A.3d 323,
331 (Pa. Super. 2016)). As a result, “an enhanced sentence for refusing the blood
test must be vacated.” Id. (citing Commonwealth v. Giron, 155 A.3d 635, 640 (Pa.
Super. 2017)). In addition, “the results of the blood test must be suppressed,” if
consent, based on the totality of circumstances, including the partially inaccurate
warning, is lacking. Id. (citing Evans, 153 A.3d at 331).
       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 for refusing to submit to “‘chemical


       9
         We held in Garlick that the failure to warn the licensee about the unconstitutional criminal
penalties still contained in Section 1547(b)(2)(ii) at the time of his arrest did not render the civil
suspension of his operating privilege improper. 176 A.3d at 1037.



                                                 11
breath testing,’ not blood testing.” Garlick, 176 A.3d at 1033 (emphasis in original)
(citing Section 4 of the Act of July 20, 2017, P.L. 333).10 Therefore, under the
Implied Consent Law, a licensee is no longer subject to enhanced criminal penalties
for refusing a chemical test of his blood if he is convicted of DUI, and,
concomitantly, an officer has no obligation to warn a licensee of enhanced criminal
penalties for refusing a blood test. Id. Rather, an officer must only warn a licensee
that his operating privilege will be suspended if he refuses chemical testing of his
blood.11
       With that background, as Licensee explained at oral argument, he is relying
on Birchfield as a “bridge” to Evans to show that the warning he received was
“partially inaccurate,” which, regardless of whether Licensee actually relied on the
warning, rendered his refusal not knowing and conscious. We are not persuaded by
Licensee’s argument for the following reasons, which we detail below. First, the
warning Licensee received was accurate when given. Second, even if the warning
was subsequently rendered inaccurate by the change in the law brought about by
Birchfield, Licensee’s refusal was still knowing and conscious because he was
warned that his operating privilege would be suspended if he refused chemical
testing. Third, while Licensee claimed at the hearing that the warning about
enhanced criminal penalties left him “shell-shocked” or “frozen,” the factual record

       10
           Enhanced criminal penalties upon conviction may also be imposed if a licensee refuses
a request for testing of blood “pursuant to a valid search warrant.” 75 Pa. C.S. § 3804(c).
        11
           Although not at issue in this case, we note that DOT, in addition to proving that a licensee
was specifically warned that a refusal of a request for chemical testing of blood would result in
suspension of his operating privilege, must prove that the police officer who arrested the licensee
on suspicion of DUI “had reasonable grounds to believe that the licensee was operating or was in
actual physical control of the movement of the vehicle while under the influence of alcohol,” that
the officer requested that the licensee submit to chemical testing of his blood, and that the licensee
refused the officer’s request. Kollar v. Dep’t of Transp., Bureau of Driver Licensing, 7 A.3d 336,
339 (Pa. Cmwlth. 2010).


                                                 12
does not support any claim that this prevented him from knowingly and consciously
refusing chemical testing.
      We begin with the knowing and conscious standard, which “is not explicitly
found in Section 1547.” Yourick v. Dep’t of Transp., Bureau of Driver Licensing,
965 A.2d 341, 345 (Pa. Cmwlth. 2009). We have, therefore, held that the knowing
and conscious standard “must be strictly construed as it creates exceptions to the
clear language and policy of the implied consent law.” Id. (citation omitted).
Further, the licensee bears the burden of proving that his refusal was not knowing or
conscious. Id. at 344.
      First, it is true, as Licensee argues and DOT concedes, that the retroactive
application of Birchfield renders the portion of the warnings read to Licensee about
enhanced criminal penalties inaccurate. (Licensee’s Br. at 8; DOT’s Br. at 9.)
However, as the parties also agree, when that warning was given to Licensee, prior
to Birchfield, it was accurate as a matter of law. (Licensee’s Br. at 19; DOT’s Br. at
9.) Whether a refusal was knowing and conscious must be judged at the time of the
warning and refusal. See Lanthier v. Dep’t of Transp., Bureau of Driver Licensing,
22 A.3d 346, 351-52 (Pa. Cmwlth. 2011) (stating that “[w]hether . . . a license[e]
was actually conscious and listening at the time a request was made goes to whether
a licensee was capable of making a conscious and knowing refusal”) (second
emphasis added); Dep’t of Transp., Bureau of Traffic Safety v. Day, 500 A.2d 214,
214 (Pa. Cmwlth. 1985) (stating that when considering whether a refusal was
knowing and conscious, “[o]ne of the most important [factors] is the driver’s mental
and physical state at the time”) (emphasis added). Indeed, it would be speculative
for a licensee to argue, and a court to conclude, that a refusal, which is a fact-
intensive inquiry, was not knowing and conscious because of a change in the law



                                         13
that occurred after the refusal itself. Such a subsequent change in the law necessarily
could not have played any part in a licensee’s decision whether to refuse chemical
testing.
       Contrary to Licensee’s contention, this holding does not deny him the benefit
of the decision in Birchfield, to which he is entitled because his appeal was pending
at the time Birchfield was decided. Kituskie v. Corbman, 714 A.2d 1027, 1030 n.5
(Pa. 1998). Birchfield held that a motorist cannot be criminally penalized for
refusing a blood test requested under an implied consent law. Licensee, however,
was not criminally penalized for refusing the blood test. Birchfield, 579 U.S. at __,
136 S. Ct. at 2186 (reversing judgment of conviction where petitioner Birchfield was
threatened with an unlawful search).12 Birchfield further held that when the results
of a blood test are obtained based on a threat that the motorist will be criminally
penalized for refusing, the voluntariness of the motorist’s consent, both in any
criminal prosecution or civil license suspension proceeding, must be evaluated based
on the totality of the circumstances, taking into account the fact that the motorist was
given partially inaccurate advice. Id. (where motorist submitted to blood test on pain
of criminal prosecution and his license was then suspended as a result of the high
level of concentration of alcohol in his blood, the matter was remanded to state court
to determine whether motorist’s consent to the test was voluntary under the totality
of the circumstances, including the fact his consent followed a partially inaccurate
warning); see Commonwealth v. Neysmith, __ A.3d __, __, (Pa. Super., No. 1584
MDA 2017, filed June 28, 2018), slip op. at 5-7 (affirming denial of the suppression
of blood test results based on defendant having voluntarily consented, given the

       12
          Upon remand, the North Dakota Supreme Court vacated petitioner Birchfield’s
conviction for refusing to submit to a chemical test and directed the trial court to dismiss the charge
with prejudice.


                                                 14
totality of the circumstances, even though he was inaccurately warned that he would
be facing enhanced criminal penalties for refusing). However, here, upon Licensee’s
refusal, no blood test was conducted, and thus no results were obtained, because
Licensee was not coerced into agreeing to the test. Therefore, Licensee’s rights,
under Birchfield, have not been violated.
      Second, even if the warning was accurate when given but was rendered
inaccurate based on a subsequent change in the law, this did not render his refusal
unknowing or unconscious. Licensee reads cases such as Peppelman too broadly to
suggest that any inaccuracy in the warning requires that a suspension of a licensee’s
operating privilege be rescinded.
      In Peppelman, the licensee was told that he “could” lose his license if he
refused the requested blood test, and not, as required by Section 1547(b)(2), that his
license “will” be suspended. 403 A.2d at 1042 (emphasis added). We took a “strict
approach with respect to language imposing a duty upon the police officer to inform
the motorist that his license will be suspended or revoked if he refuses to take the
test.” Id. at 1043. As a matter of “fairness,” we stated, the licensee was “entitled
[to] prior warning of the consequence of refusing the test.” Id. We rejected the
Commonwealth’s argument that the inaccuracy of the warning should be overlooked
because the licensee did not rely on it. Id.
      Then, in Department of Transportation, Bureau of Driver Licensing v.
Osborne, 580 A.2d 914 (Pa. Cmwlth. 1990), upon which Licensee also relies, we
again stated that an error in the warning given to the licensee required that the
suspension of his operating privilege be rescinded because the error prevented the
licensee from making a knowing and conscious refusal. There, although the officer
correctly warned the licensee that if he refused chemical testing, his operating



                                          15
privilege would be suspended, the officer also told the licensee that there was a
special work permit available to the licensee that would allow him to drive to and
from work during his suspension. Id. at 915. This information was inaccurate.
Indeed, the officer’s warning “effectively related that there would be no
suspension.” Id. at 916 (emphasis added).        We rejected DOT’s claim that this
misinformation was harmless. Id. To the contrary, this misinformation prevented
the licensee “from making a knowing and conscious refusal.” Id.
      We have not read Peppelman and Osborne to require that any error in the
warning will render the refusal as not knowing and conscious, and, instead, have
concluded in other cases that not every error has this effect. For example, in
Department of Transportation, Bureau of Traffic Safety v. March, 515 A.2d 661 (Pa.
Cmwlth. 1986), the officer erroneously informed the licensee that refusing to submit
to a breath test would result in a six-month suspension of his operating privilege
when, in fact, a recent change in the law had increased the suspension to one year.
Distinguishing Peppelman, we held that the officer’s statement about the length of
the suspension he was facing was an “extraneous statement” that did not invalidate
the accurate warning he received “that his failure to submit to a test would result in
a suspension of his license.” Id. at 663; see also Dep’t of Transp., Bureau of Driver
Licensing v. Olenick, 540 A.2d 993, 994-95 (Pa. Cmwlth. 1988) (where the officer
misstated that licensee’s operating privilege would be suspended only for six months
instead of one year, this error was “harmless” and did “not negate the validity of a
warning because an officer is not required to state the length of suspension”); accord
Kennedy v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 2308




                                         16
C.D. 2012, filed May 24, 2013), slip op. at 8 (relying on Olenick in holding that
warning was accurate).13
       More recently, in Alexander v. Department of Transportation, Bureau of
Driver Licensing, 885 A.2d 651 (Pa. Cmwlth. 2005), we were presented with a
question similar to the one here: whether a warning, which includes enhanced
criminal penalties which are unlawful, renders the licensee’s refusal of chemical
testing unknowing and unconscious. We concluded that it did not. In that case,
Section 1547(b)(2) provided that enhanced criminal penalties, including
imprisonment and a $1000 fine, could be imposed on a juvenile who refused
chemical testing and was later adjudicated delinquent for DUI. The licensee was 17
years old at the time of the traffic stop and, thus, a juvenile. However, a juvenile
could not be subject to enhanced criminal penalties for a summary offense, id. at 655
(Kelley, J., dissenting14), and, by the time the licensee’s appeal was before us, the
General Assembly had amended Section 1547(b)(2). The licensee in that case
argued that he was misinformed about the penalties for refusing the chemical test
and thus could not make a knowing and conscious decision. We concluded that this
misinformation did not render the licensee’s refusal unknowing. Quoting from our
decision in Weaver v. Department of Transportation, Bureau of Driver Licensing,


       13
          Kennedy is cited “for its persuasive value” in accordance with Section 414(a) of this
Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).
       14
          We note that the dissent’s disagreement was based on the licensee being a minor.

      It may be sufficient to conclude that all that is necessary in order to satisfy the
      requirements of Section 1547(b)(2) of the Vehicle Code in the case of an adult is
      for the police to inform a motorist that he or she will be in violation of the law and
      will be penalized for that violation if he or she should fail to accede to the officer’s
      request for a chemical test. But . . . it is not sufficient to make the same conclusion
      in the case of a minor.
Alexander, 885 A.2d at 655.


                                                 17
873 A.2d 1, 2 (Pa. Cmwlth. 2005), aff’d, 912 A.2d 259 (Pa. 2006), we stated that
“[i]t is sufficient for the police to inform a motorist that he or she will be in violation
of the law and will be penalized for that violation if he or she should fail to accede
to the officer’s request for a chemical test.” Alexander, 885 A.2d at 653. The
licensee, we stated, “was aware that if he refused to submit to the chemical test, he
would be in violation of the law[,]” and yet “[h]e still refused[.]” Id. As such, his
refusal had to “be deemed a denial to submit to a request for a chemical test.” Id.
       When we read Peppelman and Osborne in light of March, Alexander, and
Weaver, we see that not every inaccuracy in a warning will render a refusal
unknowing. In Peppelman and Osborne, where the officer’s warning made it appear
that there would either be no consequence or might not be any consequence for
refusing, then the refusal was not knowing and conscious. However, where the
officer’s warning informed the licensee that there would be a civil consequence of
the loss of operating privilege for refusing, the licensee’s refusal will still be
considered knowing and conscious even if the warning includes an enhanced
criminal penalty that is more severe than required by law, as in Alexander. This
Court has found it is “legally sufficient” if the officer “informs the licensee that
refusing a request for chemical testing means that he/she ‘will be in violation of the
law and will be penalized for that violation.’” Yourick, 965 A.2d at 345 (quoting
Weaver, 873 A.2d at 2).
       We therefore find that Licensee’s refusal, here, was knowing and conscious.
Trooper told Licensee that if he refused chemical testing, his operating privilege
would be suspended for one year. Despite this knowledge, Licensee still refused
chemical testing. In other words, Licensee refused chemical testing with full
knowledge that his refusal would result in a penalty, which was the suspension of



                                            18
his operating privilege. That the warning also included an enhanced criminal penalty
that was more severe than ultimately would be required by law if he was convicted
of DUI, as in Alexander, did not render the warning insufficient.
      While Licensee also cites to O’Connell and Binder v. Commonwealth, 513
A.2d 1105 (Pa. Cmwlth. 1986), in support of his argument, they do not compel a
different result. Binder and O’Connell are both distinguishable. In Binder, the
officer told the licensee that, if he preferred, he could take a blood test instead of a
breath test. 513 A.2d at 1106. According to the licensee, but not the officer, the
licensee told the officer he preferred a blood test. Citing Peppelman, we noted that
“a licensee is statutorily entitled to a warning that refusal to submit to a test will
result in the licensee’s suspension,” that “the duty to administer the warning includes
a duty to do so accurately,” and that “a licensee need not rely on the inaccurate
warning.” Id. at 1107. Based on Peppelman, we held that, because a licensee has
no right to a choice of tests, the warning was inaccurate, and that “this fact alone,”
without any reliance on the part of the licensee, required that the suspension be set
aside. Id. Although, as Licensee notes, Binder supports the general proposition that
a licensee is entitled to an accurate warning and that the licensee need not rely on
the inaccurate warning, Binder specifically relates to the manner in which a licensee
refuses a chemical test, not the consequences of refusing. If, as in Binder, the
licensee is told that he has the option of a breath test or a blood test and he opts for
the latter, he has not knowingly refused chemical testing. Here, however, we are
not concerned with the manner in which Licensee refused – he undisputedly refused
a blood test – rather, we are concerned with the impact of a statement about the
consequences of refusing chemical testing. Thus, Binder is distinguishable.




                                          19
      O’Connell is also distinguishable. There, following the licensee’s arrest for
DUI, he was twice advised of his Miranda15 rights, at the scene and at the police
station, and he indicated that he wanted to speak with an attorney. 555 A.2d at 874.
Then, the officer asked the licensee to take a breath test, which, according to the
credited testimony, the licensee refused because the officer would not permit the
licensee to speak with his attorney. Id. at 874-75. The licensee claimed this refusal
was not knowing “because he was misled into believing that he was entitled to confer
with an attorney prior to deciding to take the test.” Id. at 876. Our Supreme Court
held that the licensee was entitled to be told that Miranda rights “are inapplicable”
to a chemical test and that he “does not have the right to consult with an attorney or
anyone else prior to taking the test.” Id. at 878. The Supreme Court reasoned that
the licensee was entitled to this information so that he could make a “knowing and
conscious” decision. Id. Further, the Supreme Court stated, it was appropriate to
place the duty on the officer to clarify “the extent of the right to counsel” when
requesting that the licensee take a chemical test because it was the police’s “course
of conduct” that “creat[ed] the confusion in these cases.”        Id.   O’Connell is
distinguishable from the instant matter because in O’Connell the warnings were
inherently contradictory. The Miranda warning the licensee in O’Connell was given
was that he had the right to remain silent and to speak with an attorney prior to any
police questioning, but then that was followed by the officer asking the licensee if
he would take a chemical test. Thus, the warnings were contradictory and, as
O’Connell held, had to be clarified by the officer advising the licensee that there is
no right to consult with an attorney prior to taking the chemical test. See Dep’t of
Transp., Bureau of Driver Licensing v. Scott, 684 A.2d 539, 544 (Pa. 1996)


      15
           Miranda v. Arizona, 384 U.S. 436 (1966).


                                              20
(explaining O’Connell, that once a motorist is informed of his Miranda rights, he
“may reasonably assume he has the right to consult with an attorney before the
chemical testing, or to refuse to submit to the testing as an exercise of his right to
remain silent”). Here, however, there was nothing contradictory about the warnings
Licensee was given. Indeed, as we have outlined, the warnings were accurate as a
matter of law at the time they were given and only became inaccurate after the
change in the law brought about by Birchfield.
        In short, Licensee has not shown that his refusal was unknowing or, stated
differently, that Peppelman requires that his appeal be sustained.                   Unlike in
Peppelman and Osborne, Licensee was told that there would be a consequence for
refusing chemical testing, that his operating privilege would be suspended, and,
unlike in O’Connell, there was nothing inherently contradictory about the warnings
Licensee received.
       Third, while Licensee claims that the warning about enhanced criminal
penalties left him “froze[n]” and “shell-shocked,” which is to suggest that his fear
left him unable to make a knowing and conscious refusal, (R.R. at 67a; Licensee’s
Br. at 16), other facts in the record undermine his claim. Although Licensee testified
he was “froze[n]” and “shell-shocked,” he was still able to sign his name to the DL-
26 Form and tell Trooper, “I’m not taking the test.” (R.R. at 39a, 67a.) Licensee
never told Trooper that he was unable to understand the warnings, and he did not
remain silent, which would better support any claim that he was “froze[n].”16 Even
then, any subjective misunderstanding on Licensee’s part would not suffice to render
his refusal not knowing and conscious. Yourick, 965 A.2d at 345 (stating that
subjective misunderstandings do not make a refusal not knowing or conscious). In

       16
          Licensee states in his brief that upon hearing the warning, “he believed that he should
not speak or consent to give blood,” but Licensee did speak. (Licensee’s Br. at 6.)


                                               21
short, the factual record does not support Licensee’s claim that his fear about the
potential for receiving enhanced criminal penalties for refusing chemical testing if
he was convicted of DUI prevented him from making a knowing and conscious
refusal. Renfroe v. Dep’t of Transp., Bureau of Driver Licensing, 179 A.3d 644, 650
(Pa. Cmwlth. 2018) (holding that where the licensee testified that he could not take
a blood test because he feared needles, the factual record did not support his claim
on appeal that he was “forced to choose between asserting his Fourth Amendment
right and maintaining his operating privilege”); Quigley v. Dep’t of Transp., Bureau
of Driver Licensing, 965 A.2d 349, 354 (Pa. Cmwlth. 2009) (where the licensee
claimed that the warnings were ambiguous, we noted that the licensee never told the
officer that she thought the warning advised her that her operating privilege would
be suspended only if she had prior refusals or convictions; rather, the only reason
she gave for not complying was that she wanted to call her husband first).
       Finally, for these same reasons, we must also reject Licensee’s due process
argument.17 Licensee’s claim is that procedural due process required that he be given
an accurate warning before having to make a decision that would result in the
suspension of his operating privilege if he refused chemical testing. Licensee,
however, received all the procedural process he was due. As we have discussed at
length, the warning was accurate when given to Licensee, and his refusal was
knowing because Trooper told him that he would be penalized if he refused chemical
testing. Licensee can hardly complain that it is fundamentally unfair for the




       17
          Typically, a procedural due process claim is couched in terms of notice and an
opportunity to be heard. Licensee couches his claim more generally, asserting that the procedure
followed in this case – misinforming Licensee about the consequences of refusing – was
fundamentally unfair.


                                              22
Commonwealth to impose on him the very consequence it warned him would be
imposed if he refused.
      While Licensee points to the concurring opinions in Price v. Department of
Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 1873 C.D. 2016, filed
September 29, 2017), and Gray v. Department of Transportation, Bureau of Driver
Licensing (Pa. Cmwlth., Nos. 1759 C.D. 2016, 1760 C.D. 2016, filed June 9, 2017),
petition for allowance of appeal denied, 181 A.3d 1072 (Pa. 2018), as supporting his
procedural due process argument, they do not. In both Price and Gray, the licensees
were warned that they would be subject to enhanced criminal penalties if they
refused. In both cases, we rejected the licensees’ arguments that Birchfield applied
to their respective license suspension appeals. Price, slip op. at 8 (“Birchfield is
inapposite”); Gray, slip op. at 13 (concluding that Boseman, which stated that the
holding of Birchfield “was irrelevant to a civil license suspension,” was
“dispositive”). In a concurring opinion in both cases, the concurring judge, although
constrained by Boseman, argued that a licensee has a constitutional right to refuse a
warrantless blood test when threatened with criminal punishment and that to punish
a licensee for exercising that constitutional right by suspending her operating
privilege violates the Pennsylvania Constitution. Price, slip op. at 2 (McCullough,
J., concurring); Gray, slip op. at 4-5 (McCullough, J., concurring). In reaching that
conclusion, the concurring judge stated, “‘[t]o punish a person because he has done
what the law plainly allows him to do is a due process violation of the most basic
sort.’” Gray, slip op. at 5 (quoting United States v. Goodwin, 457 U.S. 368, 372
(1982)). Licensee highlights this language from Gray, (Licensee’s Br. at 17), but he
does not make any connection between that language and the argument he advances
here. Licensee does not make the argument that the concurring judge in Price and



                                         23
Gray found persuasive. Thus, Price and Gray are distinguishable because they
involved a different legal argument, and Licensee fails to analogize Price and Gray
to this matter so as to sway us that the concurring opinions in those matters should
be applied here.


       B.      Coercion
       Licensee also argues that Trooper’s “improperly coercive threat of
enhancement of criminal penalties caused [Licensee] to . . . refuse the test.”
(Licensee’s Br. at 16.)
       Although it bears highlighting that Licensee was not, in fact, “coerced” since
he refused chemical testing, this claim, in any event, amounts to another argument
that we should extend Birchfield to civil license suspension proceedings. We have
already rejected such a claim several times. For example, in Boseman, the licensee
argued that, under Birchfield and the Fourth Amendment to the United States
Constitution,18 her operating privilege should be reinstated because the arresting
officer lacked either a warrant or exigent circumstances that would have justified the
taking of her blood. 157 A.3d at 19. We rejected the licensee’s argument. “We
emphasize[d] that 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.” Id. at 20. Further, we noted, Birchfield
“[b]y its own language . . . does not apply to implied consent laws that merely impose
civil penalties.” Id. at 21. Therefore, because “the present case involve[d] a civil
license suspension appeal, not a criminal proceeding,” and because “Birchfield

       18
          The Fourth Amendment to the United States Constitution guarantees “[t]he right of the
people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const.
amend. IV.


                                               24
addressed the constitutionality of a State statute that made it a crime to refuse a
warrantless blood test after being arrested for DUI,” Birchfield, we held, did not
apply. Id. (emphasis in original). Birchfield, we noted, might “have some impact in
criminal DUI proceedings in Pennsylvania where enhanced penalties based on
refusal of a blood test are imposed,” but that was not the case in Boseman, id., nor is
it the case here.
       In Marchese v. Department of Transportation, Bureau of Driver Licensing,
169 A.3d 733 (Pa. Cmwlth. 2017), petition for allowance of appeal denied, 182 A.3d
442 (Pa. 2018), a permutation of Boseman, the licensee argued that Section 1547(a)
and (b) violated the Fourth Amendment to the United States Constitution because it
required a licensee to submit to a warrantless request for a blood draw on pain of
having his operating privilege suspended. Again, the licensee’s argument was
premised on the holding in Birchfield. Id. at 737. We rejected the licensee’s attempt
“to extend the scope of the holding in Birchfield.” Id. at 738. We reiterated that the
holding in Birchfield was limited “to implied consent laws imposing criminal
penalties.” Id. at 739-40. We went on to reject the licensee’s argument based on the
Fourth Amendment, noting that “license suspensions are civil, not criminal
proceedings,” that the Fourth Amendment’s exclusionary rule does not apply outside
criminal trials, and that the continuation of the privilege to operate a motor vehicle
on the roads of this Commonwealth is reasonably conditioned on the requirement
that the licensee submit to a warrantless blood test when suspected of DUI. Id. at
740-42. Therefore, Section 1547(a) and (b) did not violate the Fourth Amendment.
       Most recently, in Renfroe, an en banc panel of this Court considered a set of
circumstances similar to those here. There, the arresting officer requested that the
licensee submit to a chemical test of his blood, warning him that if he refused his



                                          25
operating privilege would be suspended and he would be subjected to enhanced
criminal penalties if he was criminally convicted of DUI. 179 A.3d at 646-47. The
licensee argued “that Birchfield should be extended to civil license suspensions
because a licensee cannot be punished, either civilly or criminally, for refusing to
submit to a blood test.” Id. at 648. We, however, again declined to extend Birchfield
to civil license suspension proceedings. Id. at 650-51 (citing Marchese, 169 A.3d at
739-40; Boseman, 157 A.3d at 21). Reviewing our decision in Boseman, we stated
that its holding was “grounded upon the settled distinction between a civil license
suspension proceeding and a criminal DUI proceeding arising out of the same
incident.” Id. at 650. Therefore, we concluded in Renfroe, “[c]onsistent with our
decisions in Boseman and Marchese,” common pleas “did not err by holding that
Birchfield does not apply to civil license suspensions.” Id. at 651.
       We reiterate here again that Birchfield does not apply to civil license
suspension proceedings. Thus, any claim that the warnings given to Licensee were
coercive – even though Licensee was not coerced by the warnings since he refused
chemical testing – would have to fail.


III.   Conclusion
       Common pleas properly denied Licensee’s statutory appeal.             Trooper
provided Licensee with a warning that was accurate at the time it was given, telling
him that if he refused chemical testing of his blood, his operating privilege would be
suspended. While Trooper also warned Licensee that he would be subject to
enhanced criminal penalties if he refused and was subsequently convicted of DUI,
this warning, rendered retroactively inaccurate by the change in the law brought
about by Birchfield, did not make Licensee’s refusal not knowing and conscious nor



                                         26
deprive Licensee of procedural due process. Licensee knew that he would be in
violation of the law if he refused chemical testing and that he would be penalized for
that violation by the suspension of his operating privilege, because Trooper
conveyed this information to him. Yet, Licensee still refused chemical testing.
While Licensee claims that the warning about enhanced criminal penalties left him
“froze[n]” and “shell-shocked,” other facts in the record belie these claims. (R.R. at
67a.) Moreover, Licensee’s claim that the warning was coercive and that Birchfield
should be extended to civil license suspension proceedings is one which we have
rejected several times already. Therefore, we must affirm common pleas’ Order
refusing to rescind DOT’s one-year suspension of Licensee’s operating privilege.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         27
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Wayne Patane,                  :
                       Appellant      :
                                      :
                 v.                   :   No. 973 C.D. 2017
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing            :


                                   ORDER


     NOW, August 9, 2018, the Order of the Court of Common Pleas of Delaware
County, dated June 27, 2017, is AFFIRMED.




                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
