           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sandra Price                               :
                                           :
               v.                          :   No. 1873 C.D. 2016
                                           :   Submitted: May 5, 2017
Commonwealth of Pennsylvania,              :
Department of Transportation,              :
Bureau of Driver Licensing,                :
                  Appellant                :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                   FILED: September 29, 2017

               The Department of Transportation, Bureau of Driver Licensing
(Department) appeals an order of the Court of Common Pleas of Bucks County
(trial court) sustaining the appeal of Sandra Price (Licensee) from a one-year
suspension of her operating privilege under Section 1547 of the Vehicle Code
(Implied Consent Law), 75 Pa. C.S. §1547.1 For the following reasons, we reverse.
               On May 14, 2016, Licensee was arrested for driving under the
influence of alcohol or controlled substance pursuant to Section 3802 of the
Vehicle Code, 75 Pa. C.S. §3802.2 On June 17, 2016, the Department notified

1
  Section 1547 of the Vehicle Code is commonly referred to as the Implied Consent Law. The
Implied Consent Law authorizes suspension of the driving privileges of a licensee for one year
where the licensee is placed under arrest for driving under the influence of alcohol, and the
licensee refuses a police officer’s request to submit to chemical testing.
2
  It states in pertinent part:
         An individual may not drive, operate or be in actual physical control of the
         movement of a vehicle after imbibing a sufficient amount of alcohol such that the
(Footnote continued on the next page . . .)
Licensee that her operating privilege would be suspended for a period of one year,
effective July 22, 2016. The notice explained that the suspension resulted from her
refusal to submit to chemical testing following the arrest, in violation of the
Implied Consent Law. 75 Pa. C.S. §1547(b).3 Licensee appealed, and the trial
court held a de novo hearing on September 21, 2016.
              The Department presented the testimony of Solebury Township Police
officer Gary Forrester. Forrester testified that on May 14, 2016, he was on patrol
when he “observed a black Audi travel southbound on Route 202, [and] make a
wide right turn to go north on Street Road.” Notes of Testimony, 9/21/2016, at 5
(N.T. __); Reproduced Record at 18a (R.R. ___). Forrester followed the vehicle
and observed it “veer off to the right side of the roadway where there is no
shoulder; it’s just road and grass. The front tire of the vehicle was touching the
grass on two separate occasions.” Id.




(continued . . .)
        individual is rendered incapable of safely driving, operating or being in actual
        physical control of the movement of the vehicle.
75 Pa. C.S. §3802(a)(1).
3
  Section 1547(b) states, in relevant part:
        (b) Suspension for refusal. –
               (1) If any person placed under arrest for a violation of section 3802
               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
            Forrester testified that he stopped the vehicle, which was being driven
by Licensee.     He asked Licensee for her driver’s license, and “it took
approximately a minute for her to retrieve it.” N.T. 6; R.R. 19a. Licensee stated
that “she had a glass of wine about 6:00 pm.” Id. Forrester conducted three field
sobriety tests, all of which Licensee failed.       Forrester also administered a
preliminary breath test, which registered a blood-alcohol content of 0.203 percent.
            Forrester arrested Licensee for driving under the influence. He asked
her to submit to a blood test, and she agreed. Forrester took Licensee to
Doylestown Hospital for testing. Once there, Licensee refused to submit to a blood
test. Forrester testified that he “read the DL-26 form [to Licensee], word for word
in front of the nurse and security guard. After reading the DL-26, [he] again asked
[Licensee] if she was willing to submit to a blood test, and at that time she said,
no.” N.T. 8; R.R. 21a.
            The Form DL-26 Forrester read to Licensee contained the following
language:

            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 $1,000.00, up to a maximum of
            five years in jail and a maximum fine of $10,000.

                                         3
R.R. 37a. On cross-examination, Forrester acknowledged that the current version
of Form DL-26 no longer warns a licensee of criminal penalties for refusing to
consent to chemical testing.
              Licensee presented no evidence but argued that the imposition of a
criminal penalty for refusal to submit to a chemical test was held unconstitutional
by the U.S. Supreme Court in Birchfield v. North Dakota, ___U.S. ___, 136 S. Ct.
2160 (2016). Therefore, Licensee argued, the warning contained in the Form DL-
26 Forrester used was “inaccurate,” and her refusal, which was made based upon
the “inaccurate” warning, should be stricken. N.T. 13; R.R. 26a.
              The trial court sustained Licensee’s appeal. The Department appealed
to this Court. In its opinion filed pursuant to Pa. R.A.P. 1925(a), the trial court
concluded that, upon further consideration of the record and the case law, it had
erred in sustaining Licensee’s appeal based on Birchfield, which applies only to
criminal proceedings. The trial court urges this Court to reverse its order and
remand the matter for further proceedings.
              On appeal,4 the Department contends that the trial court erred in
sustaining Licensee’s appeal because Birchfield is inapplicable to a license
suspension proceeding, which is a civil, not criminal, proceeding. Licensee was
warned that her operating privilege would be suspended but nevertheless refused to
submit to a blood test; therefore, the suspension is proper under 75 Pa. C.S. §1547.
Licensee counters that Sections 3803 and 3804 of the Vehicle Code, 75 Pa. C.S.

4
  Our review 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 abused its
discretion. Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d
1203, 1205 (Pa. 1999).

                                             4
§§3803, 3804, are unconstitutional insofar as they impose criminal penalties upon
individuals who refuse to submit to blood tests. In advancing that argument,
Licensee relies on Birchfield and the Superior Court’s decision in Commonwealth
v. Giron, 155 A.3d 635 (Pa. Super. 2017). Thus, Licensee asserts that the Form
DL-26 used in this case contained “[w]rong, incorrect, and unconstitutional
information,” which “invalidate[d] the warning.” Licensee Brief at 8-9. Licensee
argues that she did not give “an informed refusal that would suspend a license.”
Id. at 9.
             We first examine Section 1547 of the Vehicle Code, which provides
in pertinent part:

             (a) General rule.--Any person who drives, operates or is in
             actual physical control of the movement of a vehicle in this
             Commonwealth shall be deemed to have given consent to one
             or more chemical tests of breath or blood for the purpose of
             determining the alcoholic content of blood or the presence of a
             controlled substance if a police officer has reasonable grounds
             to believe the person to have been driving, operating or in
             actual physical control of the movement of a vehicle:
                     (1) in violation of section 1543(b)(1.1) (relating
                     to driving while operating privilege is suspended
                     or revoked), 3802 (relating to driving under
                     influence of alcohol or controlled substance)….

                                              ***

             (b) Suspension for refusal.—

                     (1) If any person placed under arrest for a
                     violation of section 3802 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 [D]epartment shall suspend the
                     operating privilege of the person as follows:
                                          5
                          (i) Except as set forth in
                          subparagraph (ii), for a period
                          of 12 months.

                                       ***

                   (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).

75 Pa. C.S. § 1547(a),(b). It is well established that in order to sustain a one-year
license suspension under Section 1547 of the Vehicle Code, the Department must
show that the licensee (1) was arrested for driving under the influence of alcohol;
(2) was asked to submit to a chemical test; (3) refused to do so; and (4) was
specifically warned that refusal would result in the suspension of his driver’s
license. Quigley v. Department of Transportation, Bureau of Driver Licensing,
965 A.2d 349, 352 (Pa. Cmwlth. 2009). Once the Department satisfies its burden,
the licensee must prove that his refusal “was not knowing or conscious or that he
was physically unable to take the test.” Id. (quoting Department of Transportation,
Bureau of Driver Licensing v. Boucher, 691 A.2d 450, 453 (Pa. 1997)).
             Here, it is undisputed that Licensee was arrested for driving under the
influence of alcohol; was asked to submit to a blood test; refused to do so; and was
                                         6
read the warnings on the Form DL-26 by Officer Forrester, which included a
warning that refusal would result in the suspension of her driver’s license.
Nevertheless, Licensee argues that she did not give an “informed” refusal because
the Form DL-26 also warned of criminal penalties for refusal, which penalties
Birchfield held to be unconstitutional. Licensee Brief at 9. We disagree.
             In Birchfield, the U.S. Supreme Court held that the Fourth
Amendment’s guarantee against unreasonable searches and seizures prohibits a
warrantless blood test incident to an arrest for drunk driving. Relevant here, the
Supreme Court also held that “motorists cannot be deemed to have consented to
submit to a blood test on pain of committing a criminal offense.” Birchfield, ___
U.S. at ___, 136 S. Ct. at 2186. In short, Birchfield holds that consent to a blood
test is not voluntary where the driver is advised that refusing the blood test will
result in a criminal charge.
             In the instant case, the Form DL-26 warned Licensee that “if you
refuse to submit to the chemical test, your operating privilege will be suspended
for at least 12 months.” R.R. 37a. The Form DL-26 further warned Licensee, in
pertinent part:

             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….

Id. After Birchfield was decided, our Superior Court held that Sections 3803 and
3804 of the Vehicle Code impose criminal penalties upon individuals who refuse

                                          7
to submit to blood testing. Giron, 155 A.3d at 639 (citing Commonwealth v.
Evans, 153 A.3d 323, 331 (Pa. Super. 2016)). Thus, a driver cannot legally
consent to a warrantless blood test if she is advised that her refusal may result in
the enhancement of criminal penalties. Evans, 153 A.3d at 331. This case law is
inapposite, however, because the instant matter is not a criminal case. Here,
Licensee was properly warned of the civil consequences of a refusal, i.e.,
suspension of her operating privilege, and she refused to consent. Any enhanced
criminal penalties resulting from her refusal are irrelevant to her license
suspension.5 Furthermore, Licensee never consented to a blood test and in fact no
blood sample was obtained. For all of these reasons, Birchfield is inapposite.
               The Department having satisfied its burden under Section 1547 of the
Vehicle Code, Licensee had to prove that her refusal was “not knowing or
conscious” or that she was “physically unable to take the test.” Quigley, 965 A.2d
at 352. Licensee did not advance such an argument before the trial court or on
appeal. She argues only that she did not have “[a]n informed understanding” of the

5
   A license suspension is a civil, not criminal, penalty. Nornhold v. Department of
Transportation, Bureau of Driver Licensing, 881 A.2d 59, 63 (Pa. Cmwlth. 2005). The
Birchfield court expressly approved of implied consent laws that impose civil penalties for
refusal to submit to a blood test. The Supreme Court stated:
        Our prior opinions have referred approvingly to the general concept of implied-
        consent laws that impose civil penalties and evidentiary consequences on
        motorists who refuse to comply. Petitioners do not question the constitutionality
        of those laws, and nothing we say here should be read to cast doubt on them.
Birchfield, ___ U.S. at ___, 136 S. Ct. at 2185 (internal citations omitted). See also Boseman v.
Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10, 21 (Pa. Cmwlth. 2017),
appeal denied, ___A.3d ___ (Pa., 210 MAL 2017, filed August 22, 2017) (noting that “although
Birchfield may have some impact in criminal DUI proceedings in Pennsylvania where enhanced
penalties based on refusal of a blood test are imposed, such is not the case before us in this civil
license suspension appeal under the Implied Consent Law.”).

                                                 8
consequences of her refusal.     Licensee Brief at 9.    Accordingly, her license
suspension must be reinstated.
            For all these reasons, we reverse the trial court’s order and reinstate
Licensee’s one-year suspension of her operating privilege.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge




                                        9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sandra Price                         :
                                     :
               v.                    :   No. 1873 C.D. 2016
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing,          :
                  Appellant          :


                                   ORDER

               AND NOW, this 29th day of September, 2017, it is hereby ORDERED
that the order of the Court of Common Pleas of Bucks County, dated October 28,
2016, in the above-captioned matter is REVERSED and the one-year suspension of
Sandra Price’s vehicle operating privilege is REINSTATED.


                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sandra Price                              :
                                          :
               v.                         :   No. 1873 C.D. 2016
                                          :
Commonwealth of Pennsylvania,             :   Submitted: May 5, 2017
Department of Transportation,             :
Bureau of Driver Licensing,               :
                  Appellant               :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

CONCURRING OPINION
BY JUDGE McCULLOUGH                                     FILED: September 29, 2017


               If the assertion of a constitutional right results in adverse
consequences so detrimental that it impedes its invocation, the right is essentially
no right at all and exists merely by way of illusion.
               While a license suspension imposed pursuant to a criminal conviction
for driving under the influence, see, e.g., section 3803(e) of the Vehicle Code, 75
Pa.C.S. §3803(e), remains viable and enforceable, for the reasons set forth in my
concurring opinion in Gray v. Department of Transportation, Bureau of Driver
Licensing, (Pa. Cmwlth., Nos. 1759 and 1760 C.D. 2016, filed June 9, 2017)
(unreported), I believe that pursuant to Birchfield v. North Dakota, ___ U.S. ___,
136 S.Ct. 2160 (2016); Commonwealth v. Giron, 155 A.3d 635 (Pa. Super. 2017);
and Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016), a license
suspension under Pennsylvania’s Implied Consent Law,1 based solely on an
individual’s refusal to submit to a blood test, is an unconstitutional civil penalty
inflicted upon an individual for exercising the Fourth Amendment right to refuse
consent to a warrantless search.2
                As elucidated in the concurring opinion, the syllogism is
straightforward: (1) Pennsylvania’s Implied Consent Law imposes both criminal
penalties and civil penalties for a refusal to submit to a blood test; (2) the decisions
in Birchfield, Evans, and Giron collectively establish that an individual has the
constitutional right to refuse a blood test in the face of the criminal penalties;3 (3)
the Pennsylvania Constitution provides that there can be no sanction or penalty
imposed upon an individual for exercising a constitutional right; and (4) therefore,
an individual cannot be subjected to a civil penalty in the form of a mandatory
license suspension of no less than one year for refusing to submit to a blood test.
                To me, it is patently incongruous for our Superior Court in Giron to
declare the Implied Consent Law a legal nullity for imposing criminal penalties on
constitutional conduct, i.e., refusing consent, and for this Court in Boseman v.
Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10 (Pa.
Cmwlth. 2017), to permit the Implied Consent Law to inflict severe civil penalties

       1
           Section 1547 of Vehicle Code, 75 Pa.C.S. §1547.

       2
          Accord State v. Brar, 898 N.W.2d 499, 514 (Wisc. 2017) (Kelly, J., concurring) (“The
Penalty Component punishes a driver by revoking his operating privileges if he refuses an
officer’s request for a blood sample. But that smacks of punishing someone for the exercise of
his constitutional right to be free of unreasonable searches, upon which we generally frown.”)
(citations omitted).

       3
         See Commonwealth v. Myers, 164 A.3d 1162, 1177 (Pa. 2017) (plurality) (“The
opportunity to make a knowing and conscious choice – to decide whether to provide actual,
voluntary consent or to exercise the right of refusal – . . . is a constitutional necessity.”).


                                           PAM - 2
on the same constitutional conduct. Quite simply, the constitutional right to refuse
consent to a warrantless blood test cannot be reduced to a “shell game” where the
right exists in only certain places and courts guess at its location. This is especially
true considering that the Implied Consent Law simultaneously threatens an
individual with both criminal and civil penalties for refusing to take a blood test.
These penalties are legally inseparable and operate conjunctively to have the
practical effect of coercing an individual into sacrificing a guaranteed civil liberty
and succumbing to a state-compelled invasive procedure that dispenses with the
warrant requirement. See State v. Pettijohn, 899 N.W.2d 1, 33-38 (Iowa 2017).
              In Boseman this Court limited the constitutional right to refuse
consent on the basis that a license suspension is civil rather than criminal in nature.
However, if this distinction is enough to eviscerate a constitutional right, then the
Commonwealth could potentially curtail the free exercise of constitutional rights
by simply attaching civil penalties to conduct protected by the constitution. See
also State v. Yong Shik Won, 372 P.3d 1065, 1086-87 (Haw. 2015).4 Nonetheless,
our precedent now holds that the Implied Consent Law can sanction the suspension
of an individual’s driver’s license because the individual invokes the 4th
Amendment right to refuse consent to a warrantless search.                     Unfortunately,
“[b]ecause the three-judge panel deciding this case is bound by Boseman, I am
constrained to concur in the result reached by the Majority. However, pursuant to
the mandates of Birchfield, [I believe that] any license suspension imposed by the

       4
          For example, under the reasoning in Boseman, the General Assembly could legitimately
pass a law that permits the administrative revocation of a firearm license when an individual
possesses a firearm in accordance with the Second Amendment; a law that allows a zoning
hearing board to rescind a building permit when a contractor engages in First Amendment speech
criticizing the board’s permitting process; or a law that authorizes an administrative commission
to terminate a public employee for invoking the 5th Amendment right to remain silent during an
internal investigation.
                                           PAM - 3
Department that is predicated solely on a licensee’s refusal to submit to a blood
test is unconstitutional.” Gray, (McCullough, J., concurring), slip op. at 10.
             Hence, I concur in the result reached by the majority.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                      PAM - 4
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sandra Price                              :
                                          :
               v.                         :
                                          :
Commonwealth of Pennsylvania,             :
Department of Transportation,             :
Bureau of Driver Licensing,               :   No. 1873 C.D. 2016
                  Appellant               :   Submitted: May 5, 2017


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                             FILED: September 29, 2017


               When Sandra Price (Licensee) advised the arresting officer that she
would not submit to a blood test, she was read the information contained on the
prior version of the Department’s DL-26 form.         This information included a
warning that Licensee’s failure to submit to the blood test could result in certain
criminal penalties.    The current form of the DL-26 eliminates this warning,
undoubtedly because of the decision in Birchfield v. North Dakota, ___U.S.___,
136 S.Ct. 2160 (2016), which held that imposition of criminal penalties for
refusing a blood test violated the Constitution.
               While Birchfield is not directly applicable here, it does stand for a
principle which the former DL-26 does not reflect. And while Birchfield allows
implementation of civil penalties for refusal to submit to a blood test in cases such
as this, it does not give states permission to misinform a licensee as to the
consequences of a refusal.
            Since the present Licensee was so misinformed, suspension of her
operating privilege was unconstitutional.   As I disagree with the Majority, I
dissent.




                                    ___________________________
                                    JOSEPH M. COSGROVE, Judge




                                    JMC-2
