              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jesse John Ofsharick,                               :
                   Appellant                        :
                                                    :      No. 1094 C.D. 2017
                        v.                          :
                                                    :      Submitted: March 14, 2019
Commonwealth of Pennsylvania,                       :
Department of Transportation,                       :
Bureau of Driver Licensing                          :



BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                     FILED: April 4, 2019


                Jesse John Ofsharick (Licensee) appeals from the July 17, 2017 order of
the Court of Common Pleas of Montgomery County (trial court) 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

      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 the influence of alcohol or a 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
(Footnote continued on next page…)
                               Facts and Procedural History
               The underlying facts of this case are not in dispute. On December 9,
2016, Officer Stephen Nick of the Upper Dublin Police Department responded to a 9-
1-1 call from a woman who stated that her boyfriend, Licensee, had struck her in the
face and fled in their car. The woman provided Officer Nick with a description of the
car. Shortly thereafter, police officers from a neighboring municipality, Horsham
Township, had received a call concerning an intoxicated individual who had been
driving a car that matched the description given to Officer Nick. Officer Nick later
learned that Licensee had driven to a nearby Wawa, where Licensee was placed under
arrest by officers from Horsham Township for public drunkenness and disorderly
conduct. Officer Nick proceeded to the Wawa and found Licensee in a Horsham
Township police car. He described Licensee as extremely agitated and uncooperative,
slurring his speech, and yelling insults. (Trial court op. at 1-2.)
               Officer Nick, believing that Licensee was intoxicated, advised Licensee
that he was also under arrest for driving under the influence and read him the DL-26B
form warnings.2 (Trial court op. at 2.) Licensee responded that he was “taking the


(continued…)

               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
        As will be discussed below, the DL-26B form is used by law enforcement when requesting
chemical testing of blood. Licensee is not challenging whether Officer Nick read him the warnings
contained in this form.



                                                  2
Fifth and wanted to call a lawyer.” Id. He never consented to a chemical test.
Officer Nick then took custody of Licensee and transported him to the Upper Dublin
police station. Throughout the entire encounter with police officers, Officer Nick
described Licensee as “belligerent, uncooperative and . . . pulling away from us,
turning and making movements that could be inferred as either aggressive or
resistive.”     Id. As a result of this behavior, Officer Nick did not feel safe in
conducting field sobriety tests at that time. Id.
                By notice mailed December 22, 2016, DOT advised Licensee that his
operating privilege was being suspended for a period of one year under section
1547(b)(1)(i) of the Vehicle Code as a result of his failure to submit to chemical
testing.     Licensee filed a statutory appeal with the trial court.             The trial court
conducted a hearing on July 17, 2017.3                At this hearing, DOT submitted into
evidence, without objection, a certified packet of documents, which included the
December 22, 2016 notice of suspension, the DL-26B form read to Licensee and
signed by Officer Nick, and Licensee’s driving history. DOT thereafter presented the
testimony of Officer Nick, who related the above-described events.
                Officer Nick noted that officers in Horsham Township had received a
call regarding Licensee only six minutes after he responded to the domestic assault
call by Licensee’s girlfriend. (Reproduced Record (R.R.) at 13a.) He also noted that
the Wawa was only approximately three miles from the scene of the domestic assault
call. Id. After speaking with the other 9-1-1 caller that initiated the response of
police officers in Horsham Township and his supervisors, it was decided that Officer
Nick would take custody of Licensee and transport him back to the Upper Dublin
police station. (R.R. at 17a-18a.) Officer Nick then identified the DL-26B form that

       3
           Licensee’s suspension was automatically stayed pending the outcome of the hearing.



                                                  3
he read to Licensee upon his arrest at the neighboring Wawa, which requested that
Licensee submit to chemical testing. However, Officer Nick testified that Licensee
refused to submit to testing. (R.R. at 19a.)
               Licensee did not cross-examine Officer Nick or offer any other
testimony or evidence. Rather, Licensee proceeded to argue that section 1547 was
unconstitutional in light of the United States Supreme Court’s June 23, 2016 decision
in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).4,5 Licensee recognized that in
Boseman v. Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10
(Pa. Cmwlth. 2017), this Court held that Birchfield had no bearing on civil license
suspensions under the Implied Consent Law, but he wanted to preserve the argument.
               The trial court took the matter under advisement and closed the hearing.
By order of the same date, the trial court denied Licensee’s appeal and reinstated the
one-year suspension of Licensee’s operating privilege. Licensee filed a notice of
appeal with the trial court. By order dated September 21, 2017, the trial court granted
Licensee’s request for a supersedeas pending resolution by this Court.
               One week later, on September 28, 2017, the trial court issued an opinion
in support of its order. The trial court concluded that Officer Nick had reasonable
grounds to request that Licensee submit to chemical testing, citing the statements


       4
          In Birchfield, the United States Supreme Court held that the testing of blood, as opposed to
the testing of breath, requires a warrant, and that a state cannot impose criminal penalties on a
motorist for refusing to submit to blood testing. Subsequent to Birchfield, DOT created separate
DL-26 forms, one for breath tests and another for blood tests, the latter identified as form DL-26B.
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), consistent with the holding in Birchfield, to clarify that
enhanced criminal penalties could be imposed only for refusing to submit to a chemical breath test.

       5
        Licensee raised an additional argument concerning the lack of any objective evidence that
he was operating a motor vehicle while intoxicated.



                                                  4
made by Licensee’s girlfriend in the domestic assault incident, the other 9-1-1 caller
in Horsham Township, and the responding officers in Horsham Township. The trial
court stated that such statements were properly admissible under Duffy v. Department
of Transportation, Bureau of Driver Licensing, 694 A.3d 6 (Pa. Cmwlth. 1997)
(holding that out of court third-party statements are admissible to establish the
reasonable grounds of an investigating officer). The trial court also concluded that
Licensee’s actions and statements demonstrated an “unwillingness to take a blood
test” and, thus, constituted a refusal.          (Trial court op. at 5.)        Finally, based on
Boseman, the trial court concluded that Birchfield had no application to this case.


                                            Discussion
               On appeal,6 Licensee argues that the trial court erred in denying his
appeal where DOT failed to establish that Officer Nick informed Licensee that he
would be subject to enhanced criminal penalties under section 3804(c) of the Vehicle
Code for refusing to submit to chemical testing. We disagree.
               In order to support a suspension of Licensee’s operating privilege under
section 1547(b)(1) of the Vehicle Code, DOT had the burden of proving the
following:

               (1) Licensee was arrested for violating Section 3802 of the
               Vehicle Code by a police officer who had “reasonable
               grounds to believe” that Licensee was operating or was in
               actual physical control of the movement of a vehicle while
               in violation of Section 3802 (i.e., while driving under the
               influence); (2) Licensee was asked to submit to a chemical

       6
         Our scope of review is limited to determining whether the findings of fact are supported by
substantial evidence or whether the trial court committed an error of law or an abuse of discretion in
reaching its decision. Piasecki v. Department of Transportation, Bureau of Driver Licensing, 6
A.3d 1067, 1070 (Pa. Cmwlth. 2010).



                                                  5
            test; (3) Licensee refused to do so; and (4) Licensee was
            specifically warned that a refusal would result in the
            suspension of his operating privileges and would result in
            enhanced penalties if he was later convicted of violating
            Section 3802(a)(1).
Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d
30, 34 (Pa. Cmwlth. 2005). The testimony of Officer Nick satisfied DOT’s burden
herein.
            Licensee’s argument is limited to the fourth prong above. In that regard,
the DL-26B form that Officer Nick read to Licensee contained the following
warnings:

            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 38a.) This DL-26B form contained no warning advising Licensee that a
refusal to submit to chemical testing could result in enhanced criminal penalties upon
conviction of driving under the influence, as required by then-section 1547(b)(2)(ii)
of the Vehicle Code. Prior to the July 2017 amendment, this section provided that “if



                                          6
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)(ii).   The 2017
amendment inserted the term “breath” between the terms “chemical” and “testing.”
               Licensee argues that if the warnings provided by Officer Nick had
properly advised him that he might be subject to enhanced criminal penalties if he
refused the chemical testing, he may have submitted to the testing.            However,
Licensee concedes that this Court previously considered and rejected an identical
argument in Garlick v. Department of Transportation, Bureau of Driver Licensing,
176 A.3d 1030 (Pa. Cmwlth. 2018) (en banc). Licensee requests that we overrule
Garlick, which is something this panel cannot do,7 and notes that he merely seeks to
preserve this issue for further appeal to our Supreme Court.8
               In Garlick, a Pennsylvania State Police Trooper had reason to believe
that the licensee had operated a motor vehicle while under the influence of alcohol.
Following a field sobriety test, the licensee was asked and refused to consent to a
breath test. The Trooper placed the licensee under arrest on suspicion of DUI and
transported him to the police station. At the station, the Trooper requested that the
licensee submit to a chemical test of his blood and read verbatim the warnings
contained in the DL-26B form, the same warnings provided to Licensee in the present
case. The Trooper did not warn the licensee that he would be subject to enhanced
criminal penalties under section 3804(c) for refusing the chemical blood testing,
despite the requirement of former section 1547(b)(2)(ii).

      7
        Pursuant to Pa.R.A.P. 3103(b), “An opinion of the court en banc is binding on any
subsequent panel of the appellate court in which the decision was rendered.”

      8
          Our decision in Garlick was not appealed to the Supreme Court.



                                                 7
            Following DOT’s notice to the licensee of a one-year suspension of his
operating privilege, the licensee appealed to the common pleas court. Before that
court, the licensee argued that his operating privilege could not be suspended because
the Trooper failed to warn him that he would be subject to enhanced criminal
penalties for refusing the chemical blood test. The licensee further argued that police
officers must comply with the mandates of former section 1547(b)(2)(ii) until such
time as the General Assembly amended the statute. The common pleas court denied
the licensee’s appeal and reinstated his suspension. On further appeal, this Court
affirmed the common pleas court’s order.
            In rejecting the identical argument currently before this Court as
unpersuasive, we explained as follows:

            Following Birchfield, and as the Superior Court concluded
            thereafter, a licensee cannot be criminally punished for
            refusing a police officer’s request to test his blood pursuant
            to the Implied Consent Law. Although, at the time Trooper
            requested that [l]icensee submit to a blood test, Section
            1547(b)(2)(ii) still required a warning that a licensee would
            be subject to enhanced criminal penalties under Section
            3804(c) for refusing a test of his blood, [l]icensee could not,
            as a matter of constitutional law, be subject to such
            penalties. Stated simply, enhanced criminal penalties were
            not a consequence of [l]icensee’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), DOT 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 testing unenforceable
            and to effectively sever that section from the rest of the
            Vehicle Code.

                                         ...



                                           8
             [W]hat [l]icensee seems to suggest is that, in order for his
             license suspension to be valid, Trooper had to violate
             [l]icensee’s Fourth Amendment rights by warning
             [l]icensee about the no-longer enforceable enhanced
             criminal penalties because Section 1547(b)(2)(ii) still
             required that warning.        This constitutional violation,
             according to [l]icensee’s interpretation of these cases,
             would have no impact on his license suspension and,
             therefore, there was no reason for common pleas to
             consider Birchfield in this proceeding. To put it simply,
             [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) even though the criminal penalty in the
             warning is no longer enforceable and, therefore, no longer a
             consequence of refusing a blood test.           We cannot
             countenance such an argument.
Garlick, 176 A.3d at 1036-37 (emphasis added). Finally, we concluded that the
“Trooper specifically and accurately warned [l]icensee about the consequences of
refusing a blood test that remain following Birchfield, that is, the suspension of his
license.” Id. at 1037.
             Similarly here, Officer Nick specifically and accurately warned Licensee
of the consequences of refusing a blood test that remained following Birchfield,
namely a suspension of his license. Consistent with Garlick, the fact that Officer
Nick failed to advise Licensee of enhanced criminal penalties for refusing a blood
test that have since been determined to be constitutionally infirm does not invalidate
the one-year suspension of Licensee’s operating privilege imposed by DOT under
section 1547(b)(1)(i) of the Vehicle Code.
             Accordingly, the trial court’s order denying Licensee’s appeal and
reinstating his suspension is affirmed.

                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge


                                             9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jesse John Ofsharick,                  :
                   Appellant           :
                                       :    No. 1094 C.D. 2017
                  v.                   :
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


                                    ORDER


            AND NOW, this 4th day of April, 2019, the order of the Court of
Common Pleas of Montgomery County, dated July 17, 2017, is hereby affirmed.



                                   ________________________________
                                   PATRICIA A. McCULLOUGH, Judge
