J. A24038/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
LUCAS J. HARTMAN,                         :          No. 337 MDA 2018
                                          :
                          Appellant       :


       Appeal from the Judgment of Sentence Entered February 12, 2018,
                 in the Court of Common Pleas of Mifflin County
                Criminal Division at No. CP-44-CR-0000280-2017


BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 22, 2019

        Lucas J. Hartman appeals from the February 12, 2018 aggregate

judgment of sentence of 72 hours’ to 6 months’ imprisonment imposed after

he was found guilty in a bench trial of driving under the influence of alcohol

or a controlled substance (“DUI”) and DUI – highest rate of alcohol.1 After

careful review, we affirm the judgment of sentence.

        The record reflects that the parties stipulated to the facts set forth in

the March 17, 2017 criminal complaint and affidavit of probable cause. (Notes

of testimony, 1/10/18 at 1; see also certified record at No. 5.) In sum, on

January 1, 2017, at approximately 1:28 a.m., Lewistown Police Officer

David Vallimont was dispatched to a parking lot in the area of South Pine and




1   75 Pa.C.S.A. §§ 3802(a)(1) and 3802(c), respectively.
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Logan Streets in Lewistown, Pennsylvania, to assist with an unconscious

driver. Upon arriving at the scene, Officer Vallimont observed that appellant

was conscious but exhibited multiple signs of intoxication, including slurred

speech, glassy and blood shot eyes, and the odor of alcohol. After failing three

field-sobriety tests, appellant was placed under arrest for suspicion of DUI and

transported to Lewistown Hospital for a blood draw.            At the hospital,

Officer Vallimont read appellant a DL-26B form2 and appellant consented to a

blood test. The results of the blood test revealed that appellant’s blood alcohol

content was .199.

      On March 17, 2017, appellant was charged with one count each of DUI

and DUI – highest rate of alcohol. On June 6, 2017, appellant was accepted

into the Accelerated Rehabilitative Disposition (“ARD”) program, but his

acceptance was subsequently revoked after he admitted to violating the

conditions of ARD.     Thereafter, on January 2, 2018, appellant filed an

omnibus pre-trial motion to suppress the results of his blood test.        (See

“Omnibus Pre-Trial Motion,” 1/2/18 at ¶¶ 8-11.)       Following an evidentiary

hearing, the trial court denied appellant’s suppression motion on January 10,

2018. Appellant waived his right to a jury trial and proceeded to a bench trial




2 The DL-26B form, “Chemical Testing Warnings and Report of Refusal to
Submit to a Blood Test as Authorized Section 1547 . . . [,]” is commonly
referred to as an implied consent form and notifies the arrestee of the
penalties to which they could be subjected if they refuse to consent to a blood
draw following a DUI arrest. See PennDOT v. Weaver, 912 A.2d 259, 261
(Pa. 2006).


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that same day. On January 11, 2018, the trial court found appellant guilty of

the aforementioned offenses and sentenced him to an aggregate term of

72 hours’ to 6 months’ imprisonment on February 12, 2018.             This timely

appeal followed on February 15, 2018.

      On February 16, 2018, the trial court ordered appellant to file a concise

statement   of   errors   complained   of    on   appeal,   in   accordance   with

Pa.R.A.P. 1925(b), within 21 days. Appellant filed his timely Rule 1925(b)

statement on March 9, 2018, and the trial court filed its Rule 1925(a) opinion

on March 13, 2018.

      In his sole issue on appeal, appellant contends that the trial court erred

in denying his motion to suppress the results of his blood test because his

consent was invalid and involuntary. (Appellant’s brief at 4.)

            [Our] standard of review in addressing a challenge to
            the denial of a suppression motion is limited to
            determining whether the suppression court’s factual
            findings are supported by the record and whether the
            legal conclusions drawn from those facts are correct.
            Because the Commonwealth prevailed before the
            suppression court, we may consider only the evidence
            of the Commonwealth and so much of the evidence
            for the defense as remains uncontradicted when read
            in the context of the record as a whole. Where the
            suppression court’s factual findings are supported by
            the record, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).




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      “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.”           Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation

marks   omitted),   appeal    denied,    987   A.2d   158    (Pa.   2009).   The

“administration of a blood test . . . performed by an agent of, or at the

direction of the government” constitutes a search under both the United States

and Pennsylvania Constitutions. Commonwealth v. Evans, 153 A.3d 323,

327 (Pa.Super. 2016) (citation omitted).       “A search conducted without a

warrant is deemed to be unreasonable and therefore constitutionally

impermissible, unless an established exception applies.” Commonwealth v.

Strickler, 757 A.2d 884, 888 (Pa. 2000). “One such exception is consent,

voluntarily given.” Id. at 888-889 (citation omitted).

            While there is no hard and fast list of factors evincing
            voluntariness, some considerations include: 1) the
            defendant’s custodial status; 2) the use of duress or
            coercive tactics by law enforcement personnel; 3) the
            defendant’s knowledge of his right to refuse to
            consent; 4) the defendant’s education and
            intelligence; 5) the defendant’s belief that no
            incriminating evidence will be found; and 6) the
            extent and level of the defendant’s cooperation with
            the law enforcement personnel.

Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (citation

omitted), cert. denied, 540 U.S. 972 (2003).

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

v. North Dakota, 136 S.Ct. 2160 (2016), wherein it addressed the


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constitutionality of warrantless searches of breath and blood under the Fourth

Amendment, specifically with regard to the search-incident-to-arrest and

consent exceptions to the warrant requirement. Id. at 2184. The Birchfield

Court held, inter alia, that the Fourth Amendment to the United States

Constitution does not permit warrantless blood tests incident to arrests for

drunk driving and that a state may not criminalize a motorist’s refusal to

comply with a demand to submit to blood testing. Id. at 2185-2186 (holding,

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

pain of committing a criminal offense.”).

      Shortly thereafter, PennDOT revised the DL-26 form to remove the

warnings mandated by Section 3804 of the Motor Vehicle Code that individuals

suspected of DUI would face enhanced criminal penalties if they refused to

submit to a blood test.     Subsequently, in Evans, a panel of this court

invalidated Section 3804(c), holding that Pennsylvania’s implied-consent law

unconstitutionally “impose[s] criminal penalties on the refusal to submit to” a

blood test. Evans, 153 A.3d at 331. Thus, where a defendant consented to

a blood test after receiving Pennsylvania’s pre-Birchfield implied consent

warnings, the blood test was unconstitutional because consent was elicited

following warnings relating to the now-invalidated enhanced, mandatory

penalty for failing to consent. Id.

      Instantly, appellant contends that his consent to the warrantless blood

draw was not voluntary, knowing, or conscious because the DL-26B form



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Officer Vallimont read to him made no reference to the enhanced criminal

penalties that were still part of the statutory scheme of Section 3804(c) at the

time of his arrest. (Appellant’s brief at 8-9.) In support of this contention,

appellant avers that,

            an officer is required to advise an arrestee of the
            statutory penalties for refusing to submit to a blood
            test including potential enhanced criminal penalties.
            Where this is not done, the arrestee is not in a position
            to make a “knowing and conscious” decision and,
            thus, [appellant’s] consent was not voluntary.

Id. We disagree.

      It is well settled that in DUI cases, a police officer requesting that a

motorist submit to a warrantless blood draw “ha[s] no obligation to enlighten

[the motorist] as to the full details of federal constitutional law; [the police

officer]   only    need[]    tell   [the    motorist]    the   current,    legal

consequences of refusing to consent to the blood-draw.” Commonwealth

v. Venable,       A.3d      , 2018 WL 6320831, *5 (Pa.Super. 2018) (citation

omitted; bracketed information amended; emphasis added); see also

Commonwealth v. Myers, 164 A.3d 1162, 1171 (Pa. 2017).                  Here, the

record reflects that following appellant’s arrest for suspicion of DUI,

Officer Vallimont read appellant the DL-26B form concerning the chemical test

of his blood. The DL-26B form included the following language:

            It is my duty as a police officer to inform you of the
            following:




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            You are under arrest for driving under the influence of
            alcohol or a controlled substance in violation of
            Section 3802 of the Vehicle Code.

            I’m requesting that you submit to a chemical test of
            blood.

            If you refuse to submit to the blood test, your
            operating privilege will be suspended for at least
            12 months. If you previously refused a chemical test
            or were previously convicted of driving under the
            influence you will be suspended for up to 18 months.

            You have no right to speak to an attorney or anyone
            else before you decide whether to submit to testing.
            If you request to speak with an attorney or anyone
            else after being provided these warnings, or if you
            remain silent when asked to submit to a blood test,
            you will have refused the test.

DL-26B form, 1/1/7 (numeration omitted); Commonwealth’s Exhibit 1.

      The DL-26B form utilized by Officer Vallimont in this matter correctly

reflected the current law in accordance with Birchfield and its Pennsylvania

progeny. Namely, the DL-26B properly informed appellant only of the civil

penalties to which he would be subject; namely, the suspension of his license,

if he refused the blood draw. Appellant was not informed of any enhanced

criminal penalties for refusal to consent to a blood test because Birchfield

declared such enhancement unconstitutional. See, e.g., Commonwealth v.

Smith, 177 A.3d 915, 921 (Pa.Super. 2017) (reiterating that Birchfield

“prohibited states from imposing criminal penalties upon an individual’s

refusal to submit to a warrantless blood test.”). Nor was Officer Vallimont

required to do so under Venable and Myers.        Additionally, there is not a



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scintilla of evidence to suggest that Officer Vallimont’s recitation of the DL-26B

form was misrepresentative, misleading, or in any way coercive, and appellant

did not object to the form or ask any questions about the form. Appellant

voluntarily signed the DL-26B form and consented to the blood draw. (See

DL-26 form, 1/1/17; Commonwealth’s Exhibit 1.)

      Based on the foregoing, we discern no error on the part of the trial court

in concluding that appellant’s consent to the warrantless blood draw was

voluntary. The record supports the trial court’s factual findings and its legal

conclusions drawn from those facts are correct. Accordingly, the trial court

properly denied appellant’s omnibus motion to suppress to the results his

blood test. Therefore, we affirm appellant’s February 12, 2018 judgment of

sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2019




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