J-A07006-18

                               2018 PA Super 110

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 LISA GAY ROBERTSON                      :
                                         :
                   Appellant             :   No. 1493 MDA 2017

               Appeal from the Order Entered August 31, 2017
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0005091-2016

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 LISA GAY ROBERTSON                      :   No. 1494 MDA 2017

               Appeal from the Order Entered August 31, 2017
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0005092-2016


BEFORE:    PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

OPINION BY OLSON, J.:                                  FILED MAY 03, 2018

     The Commonwealth of Pennsylvania appeals from the August 31, 2017

orders granting Lisa Gay Robertson’s (“Appellee’s”) motions to suppress blood

alcohol concentration (“BAC”) blood test results obtained during the course of

two driving under the influence (“DUI”) investigations. The trial court found

Appellee’s consent to the blood draws was involuntary because of the

warnings contained on Form DL-26B that were read to her by the police


____________________________________
* Former Justice specially assigned to the Superior Court.
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officers both times that she was asked to consent to a blood test. These cases

require us to consider the DL-26B form adopted by the Pennsylvania

Department of Transportation (“PennDOT”) after the Supreme Court of the

United States’ decision in Birchfield v. North Dakota, 136 S.Ct. 2160

(2016).1      We join the Commonwealth Court and hold that PennDOT

permissibly revised the original DL-26 form to comply with Birchfield. In

light of this conclusion, and after considering the totality of the circumstances

surrounding Appellee’s consents to the blood tests, we conclude that

Appellee’s consent was voluntary in both cases. Accordingly, we reverse the

trial court’s suppression orders and remand for further proceedings consistent

with this opinion.

       The factual background of these two cases is as follows. On September

29, 2016, police responded to a motel parking lot for a report of an impaired

driver. When they arrived, Appellee was unable to complete field sobriety

____________________________________________


1 Beginning on February 1, 2004, section 1547(b)(2)(ii) of the Motor Vehicle
Code required a police officer to warn an individual arrested for suspected DUI
that the individual’s refusal to submit to a blood test would subject that
individual to enhanced criminal penalties. 75 Pa.C.S.A. § 1547(b)(2)(ii) (West
2016). “Officers followed that requirement by reading from [PennDOT’s] Form
DL-26, a portion of which tracked that statutory language.” Garlick v.
Commonwealth, Dep't of Transp., Bureau of Driver Licensing, 176 A.3d
1030, 1032 (Pa. Cmwlth. 2018) (en banc). On June 23, 2016, the United
States Supreme Court issued the Birchfield decision. One week later,
PennDOT, at the request of the Pennsylvania District Attorneys Association
and a number of county district attorneys, amended Form DL-26 to remove
any reference to enhanced criminal penalties for the refusal to submit to a
blood test. The new form is known as Form DL-26B. Id.



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tests. Police arrested her for suspicion of DUI. Appellee was transported to

the hospital where a police officer read her the DL-26B form.          That form

notified Appellee that she could face civil penalties for failing to consent to a

blood draw. The form did not inform Appellee that she would be subjected to

enhanced criminal penalties if she refused a blood test.2 Appellee consented

to the blood draw, which showed she had a BAC of .386.



____________________________________________


2 Specifically, the DL-26B form that was read to and signed by Appellee
provided in relevant part as follows:

       It is my duty as a police officer to inform you of the following:

       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
          privileges 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 to 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.

N.T., 8/15/17, Commonwealth’s Exhibit 1 (case number CP-06-CR-0005091-
2016).




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        On October 26, 2016, Appellee was involved in an automobile accident

in a motel parking lot. When police arrived, Appellee was sitting on the ground

and was unable to stand. Police arrested her for suspicion of DUI. Appellee

was transported to the hospital where a police officer read her the DL-26B

form. That form notified Appellee that she could face civil penalties for failing

to consent to a blood draw. The form did not inform Appellee that she would

be subjected to enhanced criminal penalties if she refused a blood test.3

Appellee consented to the blood draw, which showed she had a BAC of .411.

        The procedural history of these cases is as follows. On November 30,

2016, the Commonwealth charged Appellee via two criminal informations with

two counts of DUI – general impairment4 and two counts of DUI - highest

rate.5 On May 12, 2017, Appellee moved in both cases to suppress the blood

draw evidence. Thereafter, the trial court held a suppression hearing. On

August 31, 2017, the trial court issued findings of fact and conclusions of law

and granted Appellee’s suppression motions. The Commonwealth filed these



____________________________________________


3 The form read to and signed by Appellee at the time of the October 2016
arrest was identical to the form that she signed following her arrest on
September 29, 2016. N.T., 8/5/17, Commonwealth’s Exhibit 1 (case number
CP-06-CR-0005092-2016).

4   75 Pa.C.S.A. § 3802(a)(1).

5   75 Pa.C.S.A. § 3802(c).




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interlocutory appeals as of right.6 See Pa.R.A.P. 311(d) (“In a criminal case,

under the circumstances provided by law, the Commonwealth may take an

appeal as of right from an order that does not end the entire case where the

Commonwealth certifies in the notice of appeal that the order will terminate

or substantially handicap the prosecution.”).

       The Commonwealth presents two issues for our review:

       1. Did the trial court err in suppressing evidence pursuant to
          Birchfield . . . where the DL-26B form was modified to remove
          the objectionable language regarding the enhanced penalties
          for a blood testing refusal, rendering the consent to the blood
          draw[s] voluntary?

       2. Did the trial court err in suppressing evidence pursuant to
          Birchfield . . . where the totality of the circumstances indicates
          that the consent to the blood draw[s] was voluntary?

Commonwealth’s Brief at 4.

       Both of the Commonwealth’s issues challenge the trial court’s

suppression orders. We review a trial court’s order suppressing evidence for

an abuse of discretion and our scope of review consists of “only the evidence

from the defendant’s witnesses along with the Commonwealth’s evidence that

remains uncontroverted.” Commonwealth v. Maguire, 175 A.3d 288, 291

(Pa. Super. 2017) (citations omitted).




____________________________________________


6 The Commonwealth and trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.


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      Preliminarily, we review the legal and administrative developments

regarding Pennsylvania’s DUI laws over the past two years. In Birchfield,

the Supreme Court of the United States held that criminal penalties imposed

on individuals who refuse to submit to a warrantless blood test violate the

Fourth Amendment (as incorporated into the Fourteenth Amendment).

Birchfield, 136 S.Ct. at 2185–2186.          Within one week of that decision,

PennDOT revised the DL-26 form to remove the warnings mandated by 75

Pa.C.S.A. § 3804 that theretofore informed individuals suspected of DUI that

they would face enhanced criminal penalties if they refused to submit to a

blood test. It was this revised form, known as Form DL-26B (which did not

include warnings regarding enhanced criminal penalties), that the police

officers read to Appellee.

      Despite the creation of the DL-26B form in the wake of Birchfield,

numerous cases pending before trial and appellate courts involved defendants

who were given the warnings contained in the original DL-26 form that

erroneously informed them that they would face enhanced criminal penalties

if they refused to submit to a blood test. This Court ultimately held that the

Form DL-26 warnings read to defendants prior to PennDOT’s revision were

partially inaccurate.   Commonwealth v. Evans, 153 A.3d 323, 331 (Pa.

Super. 2016) (“Since Birchfield held that a state may not ‘impose criminal

penalties on the refusal to submit to [a warrantless blood] test,’ the police

officer's advisory to [a]ppellant [that refusal to submit to the test could subject


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appellant to more severe penalties set forth in 75 Pa.C.S.A. § 3804(c)] was

partially inaccurate.”). Thus, when evaluating whether a defendant’s consent

to a blood draw was voluntary or involuntary, trial courts are required to

consider whether the defendant was given inaccurate information regarding

the criminal consequences of refusing to submit to a blood test. Id., citing

Birchfield, 136 S.Ct. at 2186. This Court subsequently held that imposing

enhanced criminal penalties for failure to consent to a blood draw constituted

an illegal sentence because of Birchfield. Commonwealth v. Giron, 155

A.3d 635, 639 (Pa. Super. 2017).

      On July 20, 2017, Governor Thomas W. Wolf signed into law Act 30 of

2017 which amended 75 Pa.C.S.A. § 3804 to comport with Birchfield.

Specifically, Act 30 provides for enhanced criminal penalties for individuals

who refuse to submit to blood tests only when police have obtained a search

warrant for the suspect’s blood. See 75 Pa.C.S.A. § 3804(c). Hence, from

July 20, 2017 onwards the DL-26B form conforms to statutory law.          For

approximately the previous 13 months, including at the times of Appellee’s

arrests, the DL-26B form warnings were consistent with the law as interpreted

by the Supreme Court of the United States and this Court, but inconsistent

with the (unconstitutional) provisions of Title 75.

      With this background in mind, we turn to the Commonwealth’s first

issue. The trial court found that PennDOT lacked the authority to amend the

DL-26 form prior to Act 30’s passage. Specifically, the trial court found that


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PennDOT’s amendment of the DL-26 form to conform to Birchfield violated

the warnings provision contained in the Motor Vehicle Code at the time.

Specifically, that provision provided that “[i]t shall be the duty of the police

officer to inform the person [suspected of DUI] that . . . if the person refuses

to submit to chemical testing, upon conviction or plea for violating section

3802(a)(1)[7], the person will be subject to the penalties provided in section

3804(c) (relating to penalties).” 75 Pa.C.S.A. § 1547(b)(2)(ii) (West 2016).

        We find persuasive a recent en banc decision by the Commonwealth

Court. As in the case at bar, a driver (referred to as “Licensee”) argued that

PennDOT lacked the statutory authority to amend the DL-26 form prior to the

enactment of Act 30. The Commonwealth Court rejected that argument and

explained that:

        It is true, as Licensee argues, that the language contained in
        Section 1547(b)(2)(ii) was mandatory at the time Trooper
        requested that Licensee submit to a blood test. However, while
        Section 1547(b)(2)(ii) then commanded that a warning about
        enhanced criminal penalties be given, the purpose behind that
        provision is to make a licensee aware of the consequences of a


____________________________________________


7   Section 3802(a)(1) of Title 75 provides:

        (a)   General impairment.—

              (1) An individual may not drive, operate or be in actual
        physical control of the movement of a vehicle after imbibing
        a sufficient amount of alcohol such that the individual is
        rendered incapable of safely driving, operating or being in
        actual physical control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(a)(1).

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     refusal to take the test so that he [or she] can make a knowing
     and conscious choice.

     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
     Licensee 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, Licensee could not, as a matter of constitutional law, be
     subject to such penalties. Stated simply, 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), [Penn]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 [Motor] Vehicle Code. See 1 Pa. C.S.[A.] § 1925.

Garlick 176 A.3d at 1036 (cleaned up). Garlick is only persuasive authority.

See Estate of Paterno v. Nat’l Collegiate Athletic Ass’n, 168 A.3d 187,

201 (Pa. Super. 2017). Nonetheless, we fully agree with our sister court’s

well-reasoned analysis and adopt it as our own. Hence, we hold that PennDOT

had the authority to amend the DL-26 form prior to the enactment of Act 30.

     Next, the trial court found that, notwithstanding the amended DL-26B

form, courts in Pennsylvania generally presume that defendants are aware of

the law. See Findings of Fact and Conclusions of Law, 8/31/17, at 8, citing

In re Kearney, 7 A.2d 159, 161 (Pa. Super. 1939); see also 18 Pa.C.S.A.

§ 304 cmt. (citations omitted) (“Generally speaking, ignorance or mistake of

law is no defense.”); Commonwealth v. Cline, 177 A.3d 922, 926 (Pa.


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Super. 2017) (citation omitted). The trial court reasoned that, even though

Appellee was read the DL-26B form which deleted any reference to criminal

penalties for the failure to submit to a blood test, Appellee was presumed to

be aware of the (unconstitutional) Motor Vehicle Code provision that, until July

20, 2017, mandated enhanced criminal penalties for those convicted of DUI

who refused a blood test. Apparently, however, the trial court did not deem

it necessary to presume that Appellee knew about the United States Supreme

Court’s decision in Birchfield and its impact on the statutory warnings that

are read to individuals who are asked to consent to a blood test.

       We are unaware of any Pennsylvania cases addressing whether the

presumption that a defendant knows the law extends to case law as well as

statutory law.     We find instructive, however, this Court’s decision in

Commonwealth v. Baldwin, 789 A.2d 728 (Pa. Super. 2001). In Baldwin,

the petitioner filed his Post-Conviction Relief Act petition more than 60 days

after a new rule of constitutional law was announced. As such, he failed to

plead and prove the applicability of the new constitutional rule exception to

the PCRA’s one-year time bar. See 42 Pa.C.S.A. § 9545(b)(2) (requiring that

an untimely PCRA petition that relies on a new rule of constitutional law be

filed within 60 days of the case making that rule retroactive). This Court held

that the petitioner’s ignorance of the case law did not excuse his failure to file

his petition within 60 days of the decision he relied on. Baldwin, 789 A.2d at

731.


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      Implicit within this holding is that individuals are not only presumed to

know statutory law but also developments in case law. This is consistent with

decisions from other jurisdictions. See Plaza v. Hudson, 2008 WL 5273899,

*6 (N.D. Ohio Dec. 17, 2008) (citations omitted) (petitioners have

constructive knowledge of the law “through published case law and the

statutory provisions”).

      This presumption is also consistent with the common law heritage of

this Commonwealth.        Unlike Louisiana, which has a civil law tradition,

“Pennsylvania has a common law tradition.”      In re Roca, 173 A.3d 1176,

1191 (Pa. 2017) (cleaned up).          Hence, a substantial component of

Pennsylvania law is not contained within Purdon’s Statutes or the Pennsylvania

Consolidated Statutes.     Instead, it is contained within the pages of the

Pennsylvania Reporter, the Atlantic Reporter, and/or prior volumes of court

decisions. It would be incongruous to presume that individuals are aware of

changes in the statutory laws published in the Pamphlet Laws but are not

presumed to be aware of changes in the case law published in the United

States Reports or Pennsylvania Reporter.

      Furthermore, the word “law” is generally regarded as including court

decisions. The relevant definition of “law” in Black’s Law Dictionary is, “The

aggregate of legislation, judicial precedents, and accepted legal principles;

the body of authoritative grounds of judicial and administrative action;

esp[ecially], the body of rules, standards, and principles that the courts of a


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particular jurisdiction apply in deciding controversies brought before them[.]”

Black's Law Dictionary, 1015 (10th ed. 2014) (emphasis added). Hence, “law”

is not only “legislation” but also “judicial precedents.”     Birchfield was a

judicial precedent which was the law of this Commonwealth at the time of

Appellee’s arrest. Cf. U.S. Const. art. VI, cl. 2 (the Constitution is the supreme

law of our nation). Accordingly, the presumption that an individual is aware

of the law includes not just statutory compilations but also judicial decisions.

Thus, the trial court erred in finding that Appellee was presumed to believe

she was subject to enhanced criminal penalties because of the unconstitutional

provision of the Motor Vehicle Code.

      We also reject the trial court’s contention that the police had an

affirmative duty to inform Appellee that she had a right to refuse a blood test

without risking enhanced criminal penalties. In Commonwealth v. Smith,

77 A.3d 562 (Pa. 2013), our Supreme Court considered whether police officers

were required to inform drivers that a positive chemical test result could be

used against them during criminal proceedings. Our Supreme Court held that

no affirmative duty existed. Id. at 571. Our Supreme Court explained that

“the investigating character and fluid nature of searches and seizures render

rules that require detailed warnings by law enforcement simply unfeasible.”

Id. The same reasoning applies in this case. It would be unfeasible to require

police to inform individuals of current legal developments prior to conducting

a search or seizure. Accordingly, police did not have an affirmative duty to


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inform Appellee that she could refuse a blood test without risking harsher

criminal penalties. See also Commonwealth v. Smith, 177 A.3d 915, 921-

922 (Pa. Super. 2017) (Birchfield is inapplicable since appellant was read the

revised DL-26B form and, therefore, never advised that she would be subject

to enhanced criminal penalties if she refused to submit to a blood test.).

      Having determined that PennDOT had the authority to amend the DL-

26 form prior to Act 30’s enactment, and that Appellee does not reap the

benefit of the presumption of knowing only statutory law, we turn to the

specific facts of these cases. Under Evans, a trial court must consider the

totality of the circumstances when determining if a defendant’s consent to a

blood draw was voluntary. Evans, 153 A.3d at 328 (citation omitted). As our

Supreme Court explained:

      While there is no hard and fast list of factors evincing
      voluntariness, some considerations include: 1) the defendant’s
      custodial status; 2) the use of duress or coercive tactics by law
      enforcement personnel; 3) the defendant’s knowledge of his right
      to refuse to consent; 4) the defendant’s education and
      intelligence; 5) the defendant’s belief that no incriminating
      evidence will be found; and 6) the extent and level of the
      defendant’s cooperation with the law enforcement personnel.

Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,

opinion announcing the judgment of the court) (cleaned up), citing

Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa. 1999).

      In both of these cases, Appellee was in custody. Thus, the first factor

weighed against a finding of voluntariness. Police did not use coercive tactics




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nor was Appellee under duress.8 Thus, the second factor weighed in favor of

finding voluntariness. Appellee was properly advised of her right to refuse a

blood draw.       Hence, the third factor weighed in favor of a finding of

voluntariness. The fourth and fifth factors were neutral because no evidence

was presented regarding Appellee’s education and intelligence or whether

Appellee was aware that incriminating evidence would be found in her blood.

Finally, Appellee fully cooperated with police.          Accordingly, the last factor

weighed in favor of voluntariness.             In sum, the only factor that weighed

against a finding of voluntariness was that Appellee was in custody.              No

reasonable fact-finder could weigh these factors and determine that Appellee’s

consent was involuntary.         As such, we decline to remand this matter for

further fact-finding and instead reverse the trial court’s suppression orders

and remand for further proceedings consistent with this opinion.

       In sum, PennDOT had the authority to amend the DL-26 form prior to

the enactment of Act 30.           Moreover, the DL-26B form read to Appellee

complied with the dictates of the High Court set forth in Birchfield, and the

police officers had no affirmative duty to tell Appellee that she would not be

subjected to enhanced criminal penalties if she refused the blood tests. With

respect to the specific facts of these cases, we conclude that Appellee’s



____________________________________________


8 Appellee’s arguments at the suppression hearing regarding coercive tactics
and duress were merely recitations of facts indicating that Appellee was under
arrest.

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consent to the blood draws was voluntary. Accordingly, we reverse the trial

court’s suppression orders and remand for further proceedings consistent with

this opinion.

      Orders reversed. Cases remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2018




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