            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David S. Richardson,                           :
                                               :
                               Appellant       :
                                               :
                       v.                      : No. 681 C.D. 2018
                                               : Argued: April 9, 2019
Commonwealth of Pennsylvania,                  :
Department of Transportation,                  :
Bureau of Driver Licensing                     :


BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                 FILED: October 28, 2019

                David S. Richardson (Licensee) appeals an order of the Court of
Common Pleas of Lebanon County (trial court) dismissing his appeal of a one-year
suspension of his operating privilege imposed by the Department of Transportation,
Bureau of Driver Licensing (Department) pursuant to Section 1547(b)(1)(i) of the
Vehicle Code,1 commonly known as the Implied Consent Law, for refusing a blood




      1
          75 Pa. C.S. §1547(b)(1)(i), which states:

                (1) If any person placed under arrest for a violation of [Section 3802
                of the Vehicle Code, 75 Pa. C.S. §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 . . . for a period of 12
                months.
test. Licensee argues that his license suspension must be set aside because he was
not warned of the enhanced criminal penalties for refusing a blood test. We affirm.
               On June 7, 2017, the Department notified Licensee that his operating
privilege was suspended for one year for refusing to submit to a blood test. Licensee
appealed, asserting that the license suspension was invalid because (1) the police
officer did not have reasonable grounds to request him to submit to chemical testing
and (2) the police officer did not comply with his statutory duty under former Section
1547(b)(2) of the Vehicle Code, former 75 Pa. C.S. §1547(b)(2), to inform Licensee
that a refusal would subject him to enhanced criminal penalties. Reproduced Record
(R.R.) at 5.
               The trial court held a hearing on September 26, 2017. The Department
submitted a packet of documents that was admitted without objection. The parties
stipulated to the following facts. On May 28, 2017, Licensee was arrested by a
police officer who had reasonable grounds to suspect that Licensee was driving or
in physical control of a vehicle while under the influence of alcohol (DUI) in
violation of Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. Licensee was
asked to submit to a chemical test of his blood. He refused, and a police officer read
the implied consent warnings as they appear on form DL-26B.2 R.R. at 14-15.
Neither party presented oral argument.
               On April 17, 2018, the trial court entered an order dismissing
Licensee’s appeal and reinstating Licensee’s suspension. R.R. at 19. In doing so,
the trial court specifically relied on the parties’ stipulation of facts and this Court’s
decisions in Garlick v. Department of Transportation, Bureau of Driver Licensing,




      2
          Department’s Exhibit 2.
                                           2
176 A.3d 1030 (Pa. Cmwlth. 2018), and Negovan v. Department of Transportation,
Bureau of Driver Licensing, 172 A.3d 733 (Pa. Cmwlth. 2017). R.R. at 19, 32.
                On appeal to this Court,3 Licensee first argues that, because the implied
consent warnings read to him did not notify him that he would be subjected to
enhanced criminal penalties if he refused the chemical blood test, the warning failed
to satisfy the requirements of former Section 1547(b)(2)(ii) of the Vehicle Code,
former 75 Pa. C.S §1547(b)(2)(ii),4 rendering his suspension invalid. Licensee also
argues that former Section 1547(b)(2)(ii) is not severable from the Vehicle Code.
       However, on June 23, 2016 the United States Supreme Court rendered its
decision in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016),
holding that the Fourth Amendment to the United States Constitution does not permit
warrantless blood tests incident to arrests for DUI and that criminal penalties cannot


       3
         Our scope of review is limited to determining whether necessary findings of the trial court
are supported by substantial evidence and whether the trial court committed an error of law or
abused its discretion. Martinovic v. Department of Transportation, Bureau of Driver Licensing,
881 A.2d 30, 34 n.6 (Pa. Cmwlth. 2005). Our review over questions of law is plenary. Deliman
v. Department of Transportation, Bureau of Driver Licensing, 718 A.2d 388, 389 n.1 (Pa. Cmwlth.
1998).

       4
           At the time of Licensee’s arrest, former Section 1547(b)(2) stated:

                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).

Former 75 Pa. C.S. §1547(b)(2).

                                                   3
be imposed upon a motorist who refuses a blood test without a search warrant.
Subsequently, the Pennsylvania Superior Court held that absent 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 the enhanced penalties
provided [in the Vehicle Code].” Commonwealth v. Giron, 155 A.3d 635, 640 (Pa.
Super. 2017). Thereafter, the Department created two separate DL-26 forms, one
used for breath tests and the other for blood tests. As reflected on the Department’s
Exhibit C, the new form for blood tests no longer states that a refusal will subject a
licensee to enhanced criminal penalties. On July 20, 2017, the General Assembly
amended Section 1547(b)(2)(ii), which now applies if a person “refuses to submit to
chemical breath testing.” 75 Pa. C.S. §1547(b)(2)(ii) (emphasis added).
             While the former version of Section 1547 was in effect at the time of
Licensee’s arrest, Birchfield prohibited its implementation. Nevertheless, Licensee
argues that because the statute had not been amended at the time of his arrest,
authorities had to continue applying former Section 1547 in its entirety, including
the warning regarding enhanced criminal penalties for refusal of chemical testing.
             Licensee’s arguments are identical to those rejected by this Court in
Garlick. Therein, we held that Birchfield rendered the enhanced criminal penalties
in former Section 1547(b)(2)(ii) of the Vehicle Code unenforceable and that former
Section 1547(b)(2)(ii) is severable from the remainder of the statute.

             Simply stated, enhanced criminal penalties were not a
             consequence of Licensee’s refusing the requested blood test.
             Licensee’s argument is, in effect, that because the General
             Assembly did not immediately amend Section 1547(b)(2)(ii),
             [the Department] and the police had to continue to apply Section
             1547(b)(2)(ii). However, the effect of Birchfield and the
             Superior Court cases that followed was to render the criminal
             penalties warned of in Section 1547(b)(2)(ii) as applied to blood

                                          4
             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 (“[t]he provisions of
             every statute shall be severable” with certain exceptions not
             applicable here); Commonwealth v. Batts, 163 A.3d 410, 441 (Pa.
             2017) (emphasis added) (stating that “[i]f a provision of a statute
             is invalidated for any reason . . . a court must sever it from the
             remaining, valid portion of the statute”).

Garlick, 176 A.3d at 1036. Applying our holding in Garlick, we conclude
that the trial court did not err in denying Licensee’s appeal.
             Accordingly, we affirm.




                                        MICHAEL H. WOJCIK, Judge




                                           5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David S. Richardson,                 :
                                     :
                        Appellant    :
                                     :
                  v.                 : No. 681 C.D. 2018
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing           :



                                    ORDER


            AND NOW, this 28th day of October, 2019, the order of the Court of
Common Pleas of Lebanon County, dated April 17, 2018, is AFFIRMED.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
