                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Savoeung Leang,                                :
                             Appellant         :
                                               :
                      v.                       :
                                               :
Commonwealth of Pennsylvania,                  :
Department of Transportation,                  :    No. 1213 C.D. 2017
Bureau of Driver Licensing                     :    Submitted: November 15, 2018


BEFORE:       HONORABLE ANNE E. COVEY, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: December 4, 2018

              Savoeung Leang (Licensee) appeals from the Montgomery County
Common Pleas Court’s (trial court) August 18, 2017 order denying Licensee’s appeal
from her license suspension 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
Licensee presents two issues for this Court’s review: (1) whether Licensee was
warned in accordance with Section 1547(b)(2)(ii) of the Vehicle Code, 75 Pa.C.S. §
1547(b)(2)(ii),2 that her refusal to submit to a blood test would subject her to
enhanced criminal penalties under Section 3804(c) of the Vehicle Code, 75 Pa.C.S. §
3804(c);3 and (2) whether this Court’s en banc decision in Garlick v. Department of




       1
          The Implied Consent Law was amended in 2017, effective January 20, 2018.
       2
          Herein, references to Section 1547(b)(2)(ii) of the Vehicle Code, are to this provision
before it was amended effective July 20, 2017.
        3
          Herein, references to Section 3804(c) of the Vehicle Code, are to this provision before it
was amended effective July 20, 2017.
Transportation, Bureau of Licensing, 176 A.3d 1030 (Pa. Cmwlth. 2018), should be
overruled. After review, we affirm.
            On January 10, 2017, at approximately 1:00 a.m., Abington Township
Police Officer Ryan Patrick Brown (Officer Brown) stopped Licensee for suspicion
of driving under the influence of alcohol or a controlled substance. Although Officer
Brown did not immediately detect alcohol on Licensee’s breath, Licensee appeared
confused and unaware of her surroundings. Licensee informed Officer Brown that
she was diabetic and her blood sugar was low, and Officer Brown observed that
Licensee’s eyes had a glazed appearance. Officer Brown requested an ambulance as
he had done in other diabetic emergency cases.       When the ambulance arrived,
Licensee told the paramedics that she was not diabetic, and had consumed alcohol.
Officer Brown informed Licensee that she would undergo standard field sobriety
tests.
            Officer Brown conducted a pre-exit test, followed by three additional
tests. Licensee displayed poor balance as she exited her vehicle and, as Officer
Brown explained and spoke with Licensee during each test, he detected the odor of
alcohol on her breath. Licensee failed the field sobriety tests. Officer Brown placed
Licensee into custody for suspected driving under the influence, and she was taken to
the hospital where Officer Brown asked for Licensee’s blood to be drawn.
            Officer Brown read verbatim the warnings set forth on the Pennsylvania
Department of Transportation’s (DOT) DL-26B (6-16) (DL-26B Form) to Licensee.
The DL-26B Form had been revised after Birchfield v. North Dakota, ___ U.S. ___,
136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), to omit reference to the enhanced criminal
sanctions for refusing to submit to a blood test. Licensee also requested to read the
DL-26B Form herself. The DL-26B Form states:




                                         2
                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.
                3. 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.
                4. You have no right to speak with an attorney or anyone
                else before deciding whether to submit to testing. If you
                request to speak with an attorney or anyone else after being
                provided these warnings or you remain silent when asked to
                submit to a blood test, you will have refused the test.

Reproduced Record (R.R.) at 52a.               The DL-26B Form omitted the information
required by Section 1547(b)(2)(ii) of the Vehicle Code before its 2017 amendment,
that a licensee would face the criminal penalties set forth in Section 3804(c) of the
Vehicle Code, if she refused the blood test. Section 1547(b)(2)(ii) of the Vehicle
Code was amended effective July 20, 2017 as a result of Birchfield’s holding that the
enhanced penalties for refusing a blood test were unconstitutional. However, the
2017 amendment to Section 1547(b)(2)(ii) of the Vehicle Code retained the
requirement that a police officer must notify a licensee that her license could be
suspended if she refused, but omitted the Section 3804(c) of the Vehicle Code
criminal penalties for refusal to submit to chemical blood testing.4
                After being read and reading the DL-26B Form, Licensee refused to
submit to chemical testing of her blood. Officer Brown signed and dated the DL-26B
Form beneath the written warnings certifying that he had read them to Licensee and
given her an opportunity to submit to a blood test, and that she refused to sign the
form. See R.R. at 52a. He also signed an affidavit beneath the DL-26B Form

      4
          Birchfield did not prohibit enhancement of criminal penalties for breath testing.
                                                   3
warnings attesting that Licensee had been arrested for driving under the influence of
alcohol or controlled substance in violation of Section 3802 of the Vehicle Code, that
there were reasonable grounds to believe that Licensee had been driving, operating or
in actual physical control of the movement of a vehicle while in violation of Section
3802 of the Vehicle Code, that Licensee had been read the chemical test warnings
quoted above, and Licensee had refused to submit to a blood test after being read the
warnings. See id. Officer Brown transmitted the DL-26B Form with the affidavit of
Licensee’s refusal to DOT, which issued the notice suspending her license under
Section 1547(b)(2)(ii) of the Vehicle Code (all of which occurred before the effective
date of its 2017 amendment on July 20, 2017). Licensee appealed from the license
suspension to the trial court. On August 18, 2017, the trial court denied her appeal.
Licensee appealed to this Court.5
              Licensee first argues that she was not warned in accordance with Section
1547(b)(2)(ii) of the Vehicle Code that her refusal to submit to a blood test would
subject her to enhanced criminal penalties under Section 3804(c) of the Vehicle
Code, because the revised warnings were read to her after Birchfield was decided
(June 23, 2016), but before Section 1547(b)(2)(ii) and Section 3804(c) of the Vehicle
Code were amended (July 20, 2017). This exact argument was raised in Garlick,
wherein an en banc panel of this Court held:

              To put it simply, [the l]icensee’s argument encourages
              officers to violate licensees’ Fourth Amendment rights
              thereby jeopardizing their criminal prosecutions in order to
              comply with Section 1547(b)(2)(ii) [of the Vehicle Code]
              even though the criminal penalty in the warning is no longer
              enforceable and, therefore, no longer a consequence of


       5
         “Our standard of review in a license suspension case is to determine whether the factual
findings of the trial court are supported by competent evidence and whether the trial court
committed an error of law or an abuse of discretion.” Gammer v. Dep’t of Transp., Bureau of
Driver Licensing, 995 A.2d 380, 383 n.3 (Pa. Cmwlth. 2010).
                                               4
              refusing a blood test.      We cannot countenance such an
              argument.
              Given our review of the current state of the law, [the
              l]icensee’s argument that h[er] license must be reinstated
              because [s]he was not warned that [s]he would be subject to
              no longer constitutionally[-]permissible enhanced criminal
              penalties for refusing blood testing is unpersuasive. [The
              state t]rooper specifically and accurately warned [the
              l]icensee about the consequences of refusing a blood test
              that remain following Birchfield that is, the suspension of
              h[er] license. Therefore, common pleas [court] did not err
              when it denied [the l]icensee’s appeal.

Garlick, 176 A.3d at 1037-38 (footnote omitted). Accordingly, the trial court did not
err by denying Licensee’s license suspension appeal.
              Licensee next contends that this Court should overrule Garlick6 because
the Birchfield decision did not remove Officer Brown’s obligation to provide her with
the statutorily-required warnings concerning the enhanced criminal penalties which at
that time were not yet amended.7 Licensee specifically asserts that this Court erred
by condoning Officer Brown’s elimination of statutorily-required warnings.                  As
Licensee has not raised any arguments not previously considered by the en banc
panel in Garlick, this Court need not revisit them here.
              For all of the above reasons, the trial court’s order is affirmed.


                                          ___________________________
                                          ANNE E. COVEY, Judge


Judge Cohn Jubelirer did not participate in the decision in this case.




       6
       Garlick was decided after the trial court rendered its decision in the instant case.
       7
        Licensee states that this issue is raised “to preserve it for review by the Pennsylvania
Supreme Court.” Licensee Br. at 17.
                                               5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Savoeung Leang,                       :
                        Appellant     :
                                      :
                  v.                  :
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :   No. 1213 C.D. 2017
Bureau of Driver Licensing            :


                                    ORDER

            AND NOW, this 4th day of December, 2018, the Montgomery County
Common Pleas Court’s August 18, 2017 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
