                   IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Heather Lynne Yucha,                               :
                 Appellant                         :
                                                   :   No. 1917 C.D. 2016
                 v.                                :
                                                   :   Submitted: August 11, 2017
Commonwealth of Pennsylvania,                      :
Department of Transportation,                      :
Bureau of Driver Licensing                         :



BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                    FILED: October 12, 2017


                 Heather Lynne Yucha (Licensee) appeals from the November 9, 2016
order of the Court of Common Pleas of Northumberland County (trial court) denying
her appeal from a one-year suspension of her operation privilege imposed by the
Department of Transportation, Bureau of Driver Licensing (Bureau) under section
1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S. §1547(b)(1)(i).1


        1
            Section 1547(b)(1)(i), commonly referred to as the Implied Consent Law, reads in pertinent
part:

                 (1) If any person placed under arrest for a violation of section 3802
                 [relating to driving under 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
                           Background and Procedural History
             On August 4, 2016, Pennsylvania State Trooper Nathan Wenzel was
traveling behind Licensee in his patrol car when he observed that her vehicle
registration had expired. Trooper Wenzel initiated a traffic stop and asked Licensee
for her driver’s license and vehicle registration. Trooper Wenzel noted that Licensee
had difficulty locating her vehicle registration and stated he smelled an odor of alcohol
on her breath. Licensee admitted to consuming alcohol, but gave differing accounts as
to the amount she had consumed. Trooper Wenzel conducted a breath test, which
revealed a 0.132% blood alcohol content level, as well as three field sobriety tests
during which he observed indicators of intoxication. Trooper Wenzel then placed
Licensee under arrest and transported her back to the police barracks for chemical
testing. Trooper Wenzel read the implied consent warnings from the DL-26 form to
Licensee and asked her to provide a blood sample. Licensee refused to sign the DL-26
form, which Trooper Wenzel noted on the form. With regard to giving a blood sample,
Licensee stated that they could take her blood if they had a warrant and indicated her
knowledge of the warrant requirement in Birchfield v. North Dakota, __ U.S. __, 136
S. Ct. 2160 (2016).
             By letter dated August 19, 2016, Bureau notified Licensee that her driving
privilege would be suspended for a period of one year as a result of her chemical test
refusal. Licensee timely appealed the notice of suspension. At a hearing, Trooper
Wenzel testified regarding the particular circumstances of the traffic stop and


             department shall suspend the operating privilege of the person as
             follows:

                      (i) Except as set forth in subparagraph (ii) [relating to
                      persons with prior convictions for DUI], for a period of
                      12 months.


                                                 2
Licensee’s refusal of the request for a blood test. Licensee testified on her own behalf
and stated that she had one drink between the hours of 1:00 a.m. and 2:30 a.m.; that
she did not believe that she had refused the chemical test; and that, as a bartender who
is familiar with signs of intoxication, she did not feel she was over the legal limit.
             By order dated November 9, 2016, the trial court dismissed the appeal and
reinstated the license suspension. Licensee appealed, arguing that the trial court erred
by: finding that the Bureau had proved the elements of section 1547; failing to find the
Implied Consent Law unconstitutional in light of Birchfield; and failing to consider the
unconstitutional conditions doctrine.
             The trial court filed a statement in lieu of formal opinion. The court first
reiterated the circumstances of the arrest and concluded that the totality of
circumstances, including the odor of alcohol, failure of the field sobriety tests, and the
positive breath test, constituted reasonable grounds to conclude that Licensee was
operating her vehicle under the influence of alcohol. The court also found that Licensee
was asked to submit to a chemical test by Trooper Wenzel, was warned of the
consequences of refusal when he read the warnings on the DL-26 form, and that
Licensee had refused by saying she would consent to the test only if the police obtained
a warrant.
             With regard to Licensee’s constitutional argument, the trial court noted
that the argument was waived, as Licensee raised it for the first time in her Rule 1925(b)
statement. The court further stated that the argument would have nonetheless failed
because Birchfield was inapplicable, citing the well-settled principle that a license
suspension stemming from a refusal to submit to chemical testing is an administrative
proceeding separate from a criminal DUI proceeding arising from the same incident.
Bashore v. Department of Transportation, Bureau of Driver Licensing, 27 A.3d 272,



                                            3
275 (Pa. Cmwlth. 2011). Noting the Birchfield Court’s own emphasis that its holding
did not apply to implied consent laws imposing civil penalties, the court concluded that
Birchfield did not invalidate the Implied Consent Law since it does not impose criminal
penalties.


                                             Discussion
               On appeal,2 Licensee renews her argument that the Implied Consent Law
is unconstitutional under Article 1, Section 8 of the Pennsylvania Constitution and the
Fourth Amendment to the United States Constitution because it violates the doctrine of
unconstitutional conditions3 by requiring suspension of one’s driving privilege for
exercising one’s Fourth Amendment rights.
               Section 1547 of the Vehicle Code addresses one-year suspensions of
operating privileges, stating that the Department of Transportation must prove that the
party (1) was arrested by a police officer who had reasonable grounds to believe that
he was operating or was in actual physical control of the movement of a vehicle while
he was committing an offense under 75 Pa.C.S. §3802; (2) was asked to submit to a
chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would

       2
        Our scope of review is limited to determining whether the trial court committed an error of
law, whether the trial court abused its discretion, or whether the findings of facts are supported by
competent evidence. Department of Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d
873, 875 (Pa. 1989).

       3
         The unconstitutional conditions doctrine “vindicates the Constitution’s enumerated rights by
preventing government from coercing people into giving them up,” Koontz v. St. Johns River Water
Mgmt. Dist., __ U.S. __, 133 S. Ct. 2586, 2594 (2013), and such cases “generally arise in the context
of the subdivision and land development permit approval process, where the permit is either granted
with conditions or denied, and the issue is whether the conditions attached to the grant or not satisfied
in the denial amount to unconstitutional exactions.” Delchester Developers v. Zoning Hearing Board
of Township of London Grove, 161 A.3d 1081, 1099 (Pa. Cmwlth. 2017).



                                                   4
result in the suspension of his operating or driving privilege and would result in his
being subject to the penalties set forth in 75 Pa.C.S. §3804(c) (relating to penalties) if
he were later convicted of violating 75 Pa.C.S. §3802(a)(1). Martinovic v. Department
of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005).
               In Birchfield, the Supreme Court held that a state cannot criminally
penalize a motorist for refusing to submit to a warrantless request for a blood test after
being arrested for suspicion of DUI. __ U.S. __, 136 S. Ct. at 2184-85. However, the
Court clarified that:

               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.
Id. at 2185.
               In Boseman v. Department of Transportation, Bureau of Driver Licensing,
157 A.3d 10 (Pa. Cmwlth. 2017), this Court held that the Birchfield rule does not apply
to Pennsylvania’s Implied Consent Law because a license suspension for refusal to
submit to chemical testing is a separate civil proceeding from a criminal DUI
proceeding arising from the same incident, and the Implied Consent Law does not
impose criminal penalties for refusing chemical testing. 157 A.3d at 21.
               Here, Licensee acknowledges the Supreme Court’s statement in Birchfield
that its holding does not apply to implied consent laws imposing civil penalties and
evidentiary consequences, but requests that we disregard it as non-binding dicta.
Licensee also acknowledges this Court’s holding in Boseman, but argues that it, too, is
inapplicable because it did not address whether the Implied Consent Law was
unconstitutional.



                                            5
              However, as the trial court correctly noted, Licensee waived her
constitutional argument by raising it for the first time on appeal in her Rule 1925(b)
statement. Pa.R.A.P. 302(a); see In re: Oren, 159 A.3d 1023, 1026 (Pa. Cmwlth. 2017)
(finding waiver where an appellant raised an issue for the first time in a Rule 1925(b)
statement).
              Moreover, Licensee’s argument, even if not waived, would fail as it is
identical to one this Court recently considered and rejected in Marchese v.
Commonwealth, __ A.3d __ (Pa. Cmwlth., No. 1996 C.D. 2016, filed September 13,
2017).
              There, the licensee likewise argued that the Implied Consent Law violated
the Fourth Amendment and the unconstitutional conditions doctrine by requiring a
motorist to surrender his constitutional right to refuse a warrantless seizure of his blood
in order to operate a motor vehicle on the highways of Pennsylvania. We rejected this
argument, stating:

              It is well settled in Pennsylvania that driving is a privilege,
              not a property right. Plowman v. Dep’t of Transp., Bureau
              of Driver Licensing, 635 A.2d 124 (Pa. 1993); Alexander v.
              Dep’t of Transp., Bureau of Driver Licensing, 880 A.2d 552
              (Pa. Cmwlth. 2005). To obtain the benefit of such a
              privilege, a driver must abide by the laws of the
              Commonwealth relating to the privilege.

                                           ...

              The Birchfield Court noted that efforts to combat drunk
              driving across the nation, including implied consent laws,
              have been remarkably successful. All 50 states have adopted
              implied consent laws that require motorists, as a condition of
              driving within the state, to consent to blood alcohol testing
              following an arrest for suspicion of DUI. Birchfield.
              Suspension or revocation of the motorist’s driver's license
              remains the standard legal consequence for refusal. Id.

                                            6
              Therefore, because a license suspension under
              Pennsylvania’s Implied Consent Law does not involve
              criminal penalties and thus does not implicate Fourth
              Amendment rights, a warrantless request for a blood test
              under the Implied Consent Law, based upon a reasonable
              suspicion of DUI, does not violate the Fourth Amendment or
              the unconstitutional conditions doctrine.

                                              ...

              The touchstone of Fourth Amendment analysis is
              reasonableness. Birchfield. Here, Pennsylvania’s Implied
              Consent Law subjects a Pennsylvania resident seeking a
              driver’s license to the reasonable condition of an implied
              consent to chemical testing under pain of civil license
              suspension following a DUI arrest. In accord with the
              Commonwealth’s legitimate objective of combatting drunk
              driving, it may reasonably condition continuation of an
              operator’s driving privilege upon the requirement to submit
              to a warrantless blood test following an arrest for DUI under
              pain of a civil license suspension. Birchfield; Boseman. The
              purpose of the exclusionary rule for Fourth Amendment
              violations is to deter police officials from engaging in
              improper conduct for the purpose of obtaining criminal
              convictions. The Implied Consent Law does not authorize
              police officers to seize a person’s blood without permission;
              instead, it imposes an ultimatum upon the DUI arrestee to
              either submit to the test or face the civil consequences. As
              such, a civil license suspension under the Implied Consent
              Law does not implicate Fourth Amendment rights.
              Birchfield; Boseman. Consequently, the unconstitutional
              conditions doctrine is inapplicable here.
Marchese, __ A.3d __, slip op. at 10-13 (some internal citations omitted).4
              Accordingly, because the disposition of this argument, even if properly
raised, would require dismissal under our holding in Marchese, we affirm. We grant

       4
         But see Gray v. Department of Transportation, Bureau of Driver Licensing, (Pa. Cmwlth.,
Nos. 1759 and 1760 C.D. 2016, filed June 9, 2017), 2017 WL 2536439 (McCullough, J., concurring)
(noting disagreement with application of Birchfield).




                                               7
the Bureau’s request to reinstate its one-year suspension of Licensee’s operating
privilege pursuant to section 1547(b)(1)(i) of the Vehicle Code.5




                                                 ________________________________
                                                 PATRICIA A. McCULLOUGH, Judge




       5
         By order dated November 21, 2016, the trial court stayed its order reinstating Licensee’s
suspension pending final resolution of her appeal to this Court. See Certified Record, at Item No. 8.


                                                 8
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Heather Lynne Yucha,                    :
                 Appellant              :
                                        :    No. 1917 C.D. 2016
             v.                         :
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing              :



                                     ORDER


             AND NOW, this 12th day of October 2017, the order of the Court of
Common Pleas of Northumberland County, dated November 9, 2016, is hereby
affirmed. Further, the Department of Transportation, Bureau of Driver Licensing, is
directed to reinstate the one-year suspension of Heather Lynne Yucha’s operating
privilege.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
