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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                   :                PENNSYLVANIA
                                   :
              v.                   :
                                   :
                                   :
    THOMAS V. GIBSON, ERIN C.      :
    TORRES, ROBERT J. DINGER, JOHN :
    E. HARDISTY                    :           No. 1153 WDA 2017
                                   :
                  Appellants       :
                                   :

                 Appeal from the Order Entered May 19, 2017
      In the Court of Common Pleas of Butler County Criminal Division at
                            No(s): No. 2284-2016,
                        No. 2319-2016, No. 2412-2016,
                                No. 2424-2016


BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 01, 2018

       Appellants, Thomas V. Gibson, Erin C. Torres, Robert J. Dinger, and John

E. Hardisty, appeal from the trial court’s order denying their motions to

suppress chemical test results. We affirm.

       Each of the Appellants was charged with various offenses related to

driving under the influence of alcohol or controlled substance (“DUI”).1 The

trial court summarized the procedural history as follows:

            Via Omnibus Pretrial Motions,1 [Appellants] [sought]
       suppression of chemical test results obtained by way of
       warrantless, consented-to blood draws.       A consolidated
       suppression hearing was held at which time no testimony was
____________________________________________


1   75 Pa.C.S. § 3802.
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       presented. The only evidence submitted, a copy of the PennDOT
       DL-26B (6-16) form that was revised following the decision of the
       United States Supreme Court in Birchfield v. North Dakota, 136
       S.Ct. 2160, 195 L. Ed. 2d 560 (U.S. 2016), was done so by
       [Appellants]. It was apparently the understanding of the parties
       that the issues presented were legal ones.

              1Each Omnibus Motion was filed by an attorney in the
              Office of the Public Defender.       Assistant Public
              Defender Joseph Smith argued the motions on behalf
              of each [Appellant] in the above-captioned matters.

Trial Court Opinion, 5/19/17, at 1-2.            The trial court denied Appellants’

motions to suppress by order entered May 19, 2017.

       On June 6, 2017, Appellants filed a consolidated petition for permission

to appeal pursuant to Pa.R.A.P. 1311 (Interlocutory Appeals by Permission).

This Court granted Appellants’ petition, per curiam, by order filed August 9,

2017.2    This consolidated appeal was assigned the current appeal docket

number on the same date.

       Appellants present the following issues for our review:

       I.     Whether the PENNDOT DL-26B (6-16) form is defective and
       illegal due to being non-compliant with Pennsylvania’s implied
       consent law?

       II.   Whether the PENNDOT DL-26B (6-16) form is illegal
       because it violates the sep[a]ration of powers doctrine when the
       executive branch through PENNDOT unilateral[l]y modified the
       DL-26 form following the decision in Birchfield v. North Dakota,
       which has the direct effect of permitting law enforcement to
       continue warrantless blood draws for criminal prosecutions
       usurping and infringing upon the warrant requirement of the
       United States and Pennsylvania [C]onstitutions and established
____________________________________________


2That petition and this Court’s order were filed at appeal docket number 62
WDM 2017.

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       court precedent, without any remedial action taken by the
       Pennsylvania legislature?

Appellants’ Brief at 9 (unnecessary capitalization omitted).

       In their first issue, Appellants argue that PennDOT’s Implied Consent

Form DL-26B (6-16) (“Form DL-26B”) was defective and illegal at the time of

their arrests because it was not compliant with the Implied Consent Law, 75

Pa.C.S. § 1547(b)(2)(ii), in effect at that time.     Appellants’ Brief at 15.

Appellants maintain that the former Implied Consent Law was unconstitutional

in light of Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). Id. 3 Despite

the unconstitutionality of the statute, Appellants assert that law enforcement

was still using parts of the statute to obtain blood evidence through Form DL-

26B. Id. Appellants contend that in each of their cases, law enforcement

read to the Appellants the modified Form DL-26B to obtain blood evidence for

a criminal prosecution. Id. at 20. Appellants assert that modified Form DL-

26B specifically excludes the language codified in the former Implied Consent

Law warning of criminal penalties if testing is refused and relieved law

enforcement of their mandated duty to inform.       Id. at 21-22.   Appellants

argue that simply deleting the language that warned of the criminal penalties

from Form DL-26B was insufficient. Id. at 22. Appellants further assert that

everyone is “conclusively presumed to know the law,” therefore individuals



____________________________________________


3 We note that 75 Pa.C.S. §1547 was subsequently revised to comply with
Birchfield.

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knew of the imposed criminal penalties for failure to consent to testing, but

Form DL-26B failed to provide the warning for those criminal penalties. Id.

at 22-23.     Appellants allege that, instead of seeking warrants, law

enforcement    was    ‘“skirting’   or   ‘side-stepping’   the   mandated   warrant

requirement by utilizing a ‘white-washed’ DL-26B form issued by PennDOT

which deleted the mandated duty to inform.”           Id. at 25.   It is Appellants’

position that modified Form DL-26B could not be recognized as valid, and was

illegal at that time because it reflected only part of former Section 1547. Id.

      In reviewing a challenge to the lower court’s decision to deny a

suppression motion, our standard of review is as follows:

      [O]ur standard of review in addressing a challenge to a trial court’s
      denial of a suppression motion is limited to determining whether
      the factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. We are
      bound by the suppression court’s factual findings so long as they
      are supported by the record; our standard of review on questions
      of law is de novo. Where, as here, the defendant is appealing the
      ruling of the suppression court, we may consider only the evidence
      of the Commonwealth and so much of the evidence for the defense
      as remains uncontradicted. Our scope of review of suppression
      rulings includes only the suppression hearing record and excludes
      evidence elicited at trial.

Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa. Super. 2017) (quoting

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017)) (internal

citations omitted).

      In Birchfield, the United States Supreme Court held that a state may

not “insist upon an intrusive blood test, but also ... impose criminal penalties

upon the refusal to submit to such a test.” Birchfield, 136 S.Ct. at 2185.

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Moreover, the Supreme Court emphasized that “motorists cannot be deemed

to have consented to a blood test upon pain of committing a criminal offense.”

Id. at 2186. As the defendant in Birchfield consented to a blood test only

after police had informed him that he could be penalized criminally if he

refused to do so, the Birchfield Court remanded for the trial court to

“reevaluate [defendant’s] consent given the partial inaccuracy of the officer’s

advisory.” Id. However, as this Court recently explained:

            Nevertheless, the Birchfield Court emphasized that its
      holding did not apply to the imposition of civil penalties and
      evidentiary consequences upon motorists suspected of DUI who
      refused blood testing upon their arrest:

            It is well established that a search is reasonable when
            the subject consents, and that sometimes consent to
            a search need not be express but may be fairly
            inferred from context.        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, 136 S.Ct. at 2185 (emphasis added) (citations
      omitted).

Commonwealth v. Smith, 177 A.3d 915, 921 (Pa. Super. 2017).

      Following Birchfield, this Court held that Pennsylvania’s former implied

consent scheme was unconstitutional insofar as it threatened to impose

enhanced criminal penalties for the refusal to submit to a blood test.

Commonwealth v. Olson, ___ A.3d ___ , 2018 Pa. Super. 31, *3 (Pa. Super.


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filed February 14, 2018). See also Commonwealth v. Ennels, 167 A.3d

716, 724 (Pa. Super. 2017), reargument denied (Sept. 19, 2017) (noting that

“implied consent to a blood test cannot lawfully be based on the threat of such

enhanced penalties”); Commonwealth v. Evans, 153 A.3d 323, 330–331

(Pa. Super. 2016) (finding that police officer’s warning that the appellant could

be subject to criminal penalties for refusing to consent to a blood draw was

an incorrect statement of the law after Birchfield); Commonwealth v.

Giron, 155 A.3d 635, 636 (Pa. Super. 2017) (vacating and remanding for

resentencing after holding that “pursuant to [Birchfield] a defendant who

refuses to provide a blood sample when requested by police is not subject to

the enhanced penalties provided in 75 Pa.C.S. §§ 3803–3804”).

      In this case, it is undisputed that officers read to each Appellant revised

Form DL-26B.     Review of the forms reflects that Appellants were properly

advised that they would be subject only to the civil penalty of license

suspension if they refused to submit to a blood test. Thus, the warning did

not offend Birchfield.    Indeed, this Court addressed a claim identical to

Appellants’ in Smith, and in it provided the following analysis:

            The instant case is factually distinguishable from Birchfield
      and Evans. To reiterate, the decision in Birchfield, which was
      controlling law at the time of Appellant’s arrest, prohibited states
      from imposing criminal penalties upon an individual’s refusal to
      submit to a warrantless blood test. Birchfield, 136 S.Ct. at 2185.
      The trial court in this case found Birchfield was inapplicable since
      [the appellant] was never advised that she would be subject to
      enhanced criminal sanctions upon refusal of blood testing. Our
      review of the record confirms this finding; both parties agree that
      [the trooper] only informed [the appellant] that her driver’s

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      license would be suspended if she refused blood testing. [The
      appellant] signed a DL–26 form acknowledging that she was
      advised of this particular consequence. This form does not contain
      any reference to enhanced criminal penalties.                 See
      Commonwealth’s Exhibit 1, DL–26 form.            Thereafter, [the
      appellant] agreed to submit to blood testing, which revealed a
      blood alcohol level of 0.274. We cannot conclude that the trial
      court erred in denying [the appellant’s] suppression motion that
      vaguely cited to Birchfield.

Smith, 177 A.3d at 921-922 (footnote omitted). Accordingly, Form DL-26B

read to Appellants in the instant matter properly reflected the state of the law,

informing them that if they refused consent, they would be subject to only

civil penalties.

      Furthermore, we find Appellants’ argument, that Appellants remained

subject to enhanced criminal penalties if they refused the blood test because

the Pennsylvania Legislature has not yet amended the statutory provisions, to

be without merit.   As noted, this Court has deemed Pennsylvania’s former

implied consent statute unconstitutional. Ennels, 167 A.3d at 724; Evans,

153 A.3d at 330-331. As such, this statute did not constitute a basis upon

which an individual could be subjected to increased criminal penalties based

upon their failure to consent to the blood test. Indeed, it is well established

that when a statute is deemed unconstitutional, it is ineffective for any

purpose. Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa. Super.

2010).

      Here, revised Form DL–26B correctly reflected the law in accordance

with Birchfield. Appellants were properly informed of the civil penalties to


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which they would be subject, namely the suspension of their licenses, if they

refused the blood draw and Appellants consented.          Because the implied

consent statutory scheme had been deemed unconstitutional, Appellants could

not have been subject to criminal penalties on that basis. Thus, we cannot

agree with Appellants’ assertion that Form DL-26B was defective and illegal

at that time because it was not compliant with the former Implied Consent

Law.4 Appellants’ first claim fails.

       In their next issue, Appellants argue that Form DL-26B is illegal as

violative of the separation of powers doctrine.       Appellants’ Brief at 27.

Appellants assert that the executive branch through PennDOT unilaterally

modified the form following the Birchfield decision. Id. Appellants maintain

that the executive branch’s action of modifying the form, before the legislature

had acted to correct the authorizing statutory language, “violates the

separation of powers doctrine as the executive branch has usurped and

infringed upon the legislative branch and judicial precedent.” Id. at 28.

       Our Supreme Court has discussed this fundamental doctrine of

separation of powers as follows:

            A basic precept of our form of government is that the
       executive, the legislature and the judiciary are independent, co-
       equal branches of government. The dividing lines among the
____________________________________________


4  We further note that if the officers had warned Appellants of enhanced
criminal penalties after Birchfield was handed down, such recitation would
have constituted an incorrect statement of the law, thus rendering the DL-26B
form defective and illegal as being non-compliant with current law. Evans,
153 A.3d at 330-331.

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      three branches “are sometimes indistinct and are probably
      incapable of any precise definition.” Under the principle of
      separation of powers of government, however, no branch should
      exercise the functions exclusively committed to another branch.

             The allocation of these governmental powers to three
      distinct branches averts the danger inherent in the concentration
      of absolute power in a single body:

            The accumulation of all powers, legislative, executive,
            and judiciary, in the same hands, whether of one, a
            few, or many, and whether hereditary, self-appointed,
            or elective, may justly be pronounced the very
            definition of tyranny.

Pennsylvania State Ass’n of Jury Com’rs v. Commonwealth, 78 A.3d

1020, 1032 (Pa. 2013).

             The “legislative power” in its most pristine form is the power
      “to make, alter and repeal laws.” It is axiomatic that the
      legislature cannot constitutionally delegate the power to make law
      to any other branch of government or to any other body or
      authority. The legislature may, consistent with this constitutional
      axiom, delegate authority and discretion in connection with the
      execution and administration of a law; it may establish primary
      standards and impose upon others the duty to carry out the
      declared legislative policy in accordance with the general
      provisions of the enabling legislation.

            While the General Assembly may, with adequate standards
      and guidelines, constitutionally delegate the power and authority
      to execute or administer a law, the prohibition against delegation
      of “legislative power” requires that the basic policy choices be
      made by the General Assembly.

Id. at 1035-1036.

      The executive branch “has the power to recommend legislation and the

power and the duty to see that the laws are faithfully administered and carried

out.” Stander v. Kelly, 250 A.2d 474, 482 (Pa. 1969). “[T]he Courts have


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the power, the duty and the responsibility of interpreting the Constitution and

all legislation and determining whether legislation and presidential orders and

all other questions and issues meet or violate the requirements of the

Constitution.” Id. “[I]t is the court’s role to determine the constitutionality

of a piece of legislation.” Stilp v. Commonwealth, 905 A.2d 918, 951 (Pa.

2006). Moreover, this Court has explained that: “Ordinarily, the exercise of

the judiciary’s power to review the constitutionality of legislative action does

not offend    the   principle   of separation of   powers.”     Hospital and

Healthsystem Ass’n of Pa. v. Commonwealth, 77 A.3d 587, 596 (Pa.

2013) (quoting Sweeney v. Tucker, 375 A.2d 698, 705 (Pa. 1977)).

      Paramount to the separation of powers doctrine, and to the
      protection of the judicial branch as a coequal, distinct, and
      independent branch of government, is the “recognition that final
      judgments of the judicial branch are not to be interfered with by
      legislative fiat in this Commonwealth.”

Friends of Pennsylvania Leadership Charter School v. Chester County

Bd. of Assessment Appeals, 101 A.3d 66, 73 (Pa. 2014). As our Supreme

Court explained:

      The legislature cannot, by an act of assembly, overrule a judicial
      decision: Greenough v. Greenough, 11 Pa. 489; it may not
      direct a statute to be construed in a certain way: In re East
      Grant Street, 121 Pa. 596, 16 A. 366; Titusville Iron–Works
      v. Keystone Oil Co., 122 Pa. 627, 15 A. 917; it cannot grant a
      new trial: Dechastellux v. Fairchild, 15 Pa. 18; or order an
      illegitimate child to be regarded as legitimate under terms of prior
      deed: Appeal of Edwards, 108 Pa. 283; it may not change the
      effect of judgments or decrees previously rendered:
      Pennsylvania Company, etc., v. Scott, 346 Pa. 13, 29 A.2d
      328.


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Id. at 74.

       Here, the Legislature did not delegate its lawmaking authority, nor did

the executive branch usurp the Legislature’s lawmaking authority. Instead,

the judiciary concluded that, in light of Birchfield, Pennsylvania’s implied

consent statutory scheme was unconstitutional, as was within its delegation

of power. Evans, 153 A.3d at 330-331; Ennels, 167 A.3d at 724; Stander,

250 A.2d at 482.        Accordingly, the executive branch, through PennDOT,5

modified Form DL-26 in order to accurately reflect the state of the law. Thus,

we cannot agree that there was a violation of the separation of powers

doctrine. Appellants present no support for their argument, other than their

general position that they “strongly argue and believe that the modification

and issuance of the DL-26B forms without legislative action was done as a

‘knee jerk’ reaction to Birchfield.” Appellants’ Brief at 33.

       Indeed, revision of Form DL-26 was properly undertaken in adherence

to judicial precedent. As noted, post-Birchfield, enhanced criminal penalties

for refusing a blood test requested under the Implied Consent Law are no

longer constitutionally permissible 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
____________________________________________


5 PennDOT belongs to the executive branch. Smires v. O’Shell, 126 A.3d
383, 391 (Pa. Cmwlth. 2015). Although decisions of the Commonwealth Court
are not binding on this Court, we may rely on them if we are persuaded by
their reasoning. In re Brown, 30 A.3d 1200, 1204 n.2 (Pa. Super. 2011).

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applied to blood testing, unenforceable. Therefore, PennDOT properly

amended Form DL-26 to correctly reflect the status of the law. Accordingly,

there was no violation of the separation of powers doctrine in PennDOT’s

amendment of Form DL-26. Appellants’ final issue lacks merit.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2018




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