             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Scott Hudy,                               :
                              Appellant           :
                                                  :
                       v.                         :   No. 784 C.D. 2017
                                                  :   Submitted: February 2, 2018
Commonwealth of Pennsylvania,                     :
Department of Transportation,                     :
Bureau of Driver Licensing                        :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                  FILED: March 27, 2018


     Michael Scott Hudy (Licensee) appeals from the May 24, 2017 Order of the
Court of Common Pleas of Erie County (common pleas) denying his 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 On appeal, Licensee argues


     1
         Section 1547(b)(1)(i) reads, in pertinent part, as follows:

     (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
that, because the Pennsylvania State Trooper (Trooper) who stopped Licensee did
not warn him that he would be subject to enhanced criminal penalties if he refused
a chemical test of his blood, as then ostensibly required by Section 1547(b)(2)(ii) of
the Vehicle Code, 75 Pa. C.S. § 1547(b)(2)(ii), DOT should not have suspended his
operating privilege.2        For the reasons set forth in Garlick v. Department of
Transportation, Bureau of Driver Licensing, 176 A.3d 1030 (Pa. Cmwlth. 2018) (en
banc), we affirm.
       The following facts are not in dispute. DOT informed Licensee that his
operating privilege was suspended for one year as a result of his failure to submit to
a chemical test of his blood on November 29, 2016. Licensee appealed to common
pleas pursuant to Section 1550(a) of the Vehicle Code, 75 Pa. C.S. § 1550(a), and a
hearing was held.3
       At the hearing, testimony was presented that on November 29, 2016, Trooper
responded to a single-car accident at the intersection of Forest Drive and Route 6N


           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
         Former Section 1547(b)(2)(ii) provided as follows:

       It shall be the duty of the police officer to inform the person that: . . . (ii) if the
       person refuses to submit to chemical testing, upon conviction or plea for violating
       section 3802(a)(1) [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)(ii).
       3
         Section 1550(a) provides that “[a]ny person . . . whose operating privilege has been . . .
suspended . . . by the department shall have the right to appeal to the court vested with jurisdiction
of such appeals . . . .” 75 Pa. C.S. § 1550(a).



                                                  2
in Edinboro. At the scene, Trooper determined that Licensee was the operator of the
vehicle. Because Licensee was “acting in a strange manner,” Trooper requested
Licensee submit to a field sobriety test. (Hr’g Tr. at 6-7, Reproduced Record (R.R.)
at 17a-18a.) Licensee refused. Trooper asked if Licensee would submit to a blood
test, but he again refused. Trooper placed Licensee under arrest on suspicion of
driving under the influence of alcohol and had Licensee brought to the Edinboro
University Police Department. There, Trooper read to Licensee DOT Form DL-
26B, which advised Licensee 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.

      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.

(R.R. at 29a.) It is undisputed that Trooper did not warn Licensee that if he refused
a chemical test of his blood he would be subject to enhanced criminal penalties even
though, at that time, the language of Section 1547(b)(2)(ii) ostensibly still required
it. Licensee refused to submit to a chemical test of his blood.
      At the conclusion of the hearing, Licensee argued that DOT’s suspension of
his operating privilege was invalid because Trooper did not advise Licensee that his
refusal would subject him to enhanced criminal penalties in violation of Section

                                          3
1547(b)(2)(ii). DOT responded that it amended its Form DL-26B at the request of
the Pennsylvania District Attorneys Association and other county district attorneys
following the decision of the United States Supreme Court in Birchfield v. North
Dakota, __ U.S. __, 136 S. Ct. 2160 (2016).
      Five months before Licensee was stopped, the United States Supreme Court
held in Birchfield, the following: the search-incident-to-arrest exception to the
warrant requirement does not justify a warrantless search of a motorist’s 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. After Licensee’s
arrest, the Superior Court held, based on Birchfield, that it is “partially inaccurate”
to warn a licensee that he may be subject to enhanced criminal penalties if he refuses
a blood test requested under the Implied Consent Law. Commonwealth v. Evans,
153 A.3d 323, 331 (Pa. Super. 2016). Therefore, the results of such a blood test
must be suppressed, and an enhanced sentence based on a licensee’s refusal to
submit to such a blood test must be vacated. Commonwealth v. Giron, 155 A.3d
635, 640 (Pa. Super. 2017). In short, “in the absence of a warrant or exigent
circumstances justifying a search, a defendant who refuses to provide a blood sample
when requested by police is not subject to . . . enhanced [criminal] penalties.” Id.
In July 2017, the General Assembly amended Sections 1547(b)(2)(ii) and 3804(c)
of the Vehicle Code, 75 Pa. C.S. §§ 1547(b)(2)(ii), 3804(c), so as to eliminate
enhanced criminal penalties for refusing to submit to a blood test and the warning
associated therewith. Sections 3 and 4 of the Act of July 20, 2017, P.L. 333. See
Garlick, 176 A.3d at 1032-33.




                                          4
       In the Order dated May 24, 2017, common pleas denied Licensee’s appeal and
reinstated the suspension of his operating privilege. (Common Pleas Order, May 24,
2017.)
       On appeal,4 Licensee does not contest whether there were reasonable grounds
for his arrest, whether he was asked to submit to a chemical test, or whether he
refused to do so. Rather, the sole issue Licensee presents is whether the omission
from Form DL-26B that he would be subject to enhanced criminal penalties violated
Section 1547(b)(2)(ii) such that DOT did not meet its burden of proof and, thus, his
operating privilege should not have been suspended. Licensee asserts that DOT has
no authority to rewrite Section 1547(b)(2)(ii), and that, until the General Assembly
amended Section 1547(b)(2)(ii), DOT had to follow that provision even after the
decision in Birchfield.
       The argument Licensee raises is the same as was raised in Garlick, 176 A.3d
at 1035. For the reasons set forth in Garlick, id. at 1036, we conclude that DOT met
its burden of proving that Licensee was specifically warned about the consequences
of refusing a blood test, that is, the suspension of his license. See Martinovic v.
Dep’t of Transp., Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005)
(noting that in order for DOT to meet its prima facie burden establishing its
entitlement to suspend a licensee’s operating privilege, DOT must show, inter alia,
that the licensee was “specifically warned” about the consequences of refusing a
chemical test). Post-Birchfield, enhanced criminal penalties for refusing a blood test
requested under the Implied Consent Law are no longer constitutionally permissible


       4
         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. Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 954
A.2d 761, 765 n.3 (Pa. Cmwlth. 2008).


                                               5
and, thus, not a permissible consequence of such a refusal. Even though the General
Assembly did not immediately amend Section 1547(b)(2)(ii) following Birchfield,
the effect of Birchfield was to render the criminal penalties warned of in Section
1547(b)(2)(ii) as applied to blood testing unenforceable and to effectively sever that
section from the rest of the Vehicle Code. See Section 1925 of the Statutory
Construction Act of 1972, 1 Pa. C.S. § 1925 (“The provisions of every statute shall
be severable” with certain exceptions not applicable here). Therefore, common
pleas properly denied Licensee’s appeal.
      Accordingly, the May 24, 2017 Order of common pleas is affirmed.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                           6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Scott Hudy,                  :
                      Appellant      :
                                     :
                 v.                  :   No. 784 C.D. 2017
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing           :


                                  ORDER


     NOW, March 27, 2018, the Order of the Court of Common Pleas of Erie
County, dated May 24, 2017, is AFFIRMED.




                                   _____________________________________
                                   RENÉE COHN JUBELIRER, Judge
