          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mario C. Bologna,                            :
                     Appellant               :
                                             :
             v.                              : No. 1202 C.D. 2017
                                             : SUBMITTED: January 26, 2018
Commonwealth of Pennsylvania,                :
Department of Transportation,                :
Bureau of Driver Licensing                   :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE CEISLER                                   FILED: March 6, 2018

      Mario C. Bologna (Licensee) appeals from the August 3, 2017 Order of the
Court of Common Pleas of Dauphin County (Trial Court) dismissing Licensee’s
appeal from: (1) 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),1 and (2) a one-year disqualification of his commercial driving

      1
         Section 1547 of the Vehicle Code is commonly known as the Implied Consent Law.
Section 1547(b)(1)(i) of the Implied Consent Law states:

      If any person placed under arrest for a violation of section 3802 [of the Vehicle
      Code (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 officer, [DOT] shall suspend the
      operating privilege of the person . . . for a period of 12 months.
privilege under Section 1613(d.1) of the Vehicle Code, 75 Pa. C.S. § 1613(d.1).2 On
appeal, Licensee argues that because the police officer who arrested Licensee did
not warn him that he would be subject to enhanced criminal penalties if he refused
a chemical test of his blood, as required by former Section 1547(b)(2)(ii) of the
Vehicle Code, 75 Pa. C.S. § 1547(b)(2)(ii),3 DOT should not have suspended his
operating privilege or disqualified him from driving a commercial motor vehicle.
We affirm.

75 Pa. C.S. § 1547(b)(1)(i).

       2
           Section 1613(d.1) of the Vehicle Code provides in relevant part:

       Upon receipt of a report of test refusal, [DOT] shall disqualify the person who is
       the subject of the report for the same period as if [DOT] had received a report of
       the person’s conviction for violating one of the offenses listed in section 1611(a)
       [of the Vehicle Code] (relating to disqualification).

75 Pa. C.S. § 1613(d.1). Section 1611(a)(1) of the Vehicle Code provides:

       Upon receipt of a report of conviction, [DOT] shall, in addition to any other
       penalties imposed under this title, disqualify any person from driving a commercial
       motor vehicle or school vehicle for a period of one year for the first violation of . .
       . section 3802 [of the Vehicle Code] (relating to driving under influence of alcohol
       or controlled substance) . . . where the person was a commercial driver at the time
       the violation occurred.

75 Pa. C.S. § 1611(a)(1).

       3
          At the time of Licensee’s arrest, Section 1547(b)(2)(ii) of the Implied Consent Law
required a police officer to inform a licensee that “if the [licensee] refuses to submit to chemical
testing, upon conviction or plea for violating section 3802(a)(1) [of the Vehicle Code], [he or she]
will be subject to the penalties provided in section 3804(c) (relating to penalties).” Former 75 Pa.
C.S. § 1547(b)(2)(ii) (emphasis added).

        Section 1547(b)(2)(ii) now requires an officer to inform a licensee that “if the [licensee]
refuses to submit to chemical breath testing, upon conviction or plea for violating section
3802(a)(1), [he or she] will be subject to the penalties provided in section 3804(c) (relating to
penalties).” 75 Pa. C.S. § 1547(b)(2)(ii) (eff. July 20, 2017) (emphasis added).


                                                 2
        On September 26, 2016, DOT mailed two notices to Licensee. The first notice
informed Licensee that his operating privilege was suspended for one year due to his
failure to submit to a chemical test of his blood on September 2, 2016. The second
notice informed him that he was disqualified from the privilege of driving a
commercial motor vehicle for one year. Licensee appealed to the Trial Court,
challenging both the suspension and the disqualification.
        The Trial Court held a hearing on June 22, 2017. At the hearing, the parties
stipulated to the following facts. On September 2, 2016, Lower Swatara Township
Police Officer Ryan Gartland had reasonable grounds to suspect that Licensee had
operated or had actual physical control of a vehicle in violation of Section 3802 of
the Vehicle Code.4 Notes of Testimony (N.T.), 6/22/17, at 3. Officer Gartland asked
Licensee to provide a sample of his blood, but he refused. Id. Officer Gartland then
read to Licensee the warnings contained in DOT’s Implied Consent Form DL-26B
(Form DL-26B) verbatim. Id. Officer Gartland did not advise Licensee that if he
refused to submit to chemical testing, upon conviction or plea for violating Section
3802(a) of the Vehicle Code, he would be subject to enhanced penalties as required
by Section 1547(b)(2)(ii) of the Implied Consent Law. Id. at 4. The Trial Court
accepted the parties’ stipulations, and the parties presented no further testimony. Id.
at 5.
        Form DL-26B, which Officer Gartland read to Licensee at the time of his
arrest, stated:

        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.


        4
         75 Pa. C.S. § 3802 (providing that “an individual may not drive, operate or be in actual
physical control of the movement of a vehicle” while under influence of alcohol or controlled
substance).
                                               3
       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.

N.T., 6/22/17, Ex. C-1, Item No. 2. DOT created Form DL-26B in response to the
United States Supreme Court’s decision in Birchfield v. North Dakota, 136 S. Ct.
2160 (2016), which held that state laws imposing criminal penalties on motorists for
refusing to submit to a blood test are unconstitutional.5 Form DL-26B eliminated
the prior form’s warning pertaining to enhanced criminal penalties for refusal to
submit to a blood test. See Trial Ct. Op., 8/3/17, at 3.
       On August 3, 2017, the Trial Court dismissed Licensee’s appeal and reinstated
both the suspension of his operating privilege and the disqualification of his
commercial driving privilege. Licensee timely appealed to this Court.6



       5
         In Birchfield, the Supreme Court concluded that “motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal offense.” 136 S. Ct. at 2186.
The Supreme Court clarified, however, that its “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.” Id. at 2185 (emphasis added); accord Boseman v. Dep’t of
Transp., Bureau of Driver Licensing, 157 A.3d 10, 21-22 (Pa. Cmwlth.), app. denied, 170 A.3d
996 (Pa. 2017) (holding that Birchfield does not apply to civil license suspensions).

       6
         Our scope of review is limited to determining whether the Trial Court committed an error
of law or abused its discretion and whether the Trial Court’s factual findings 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).
                                                4
      On appeal, Licensee asserts that Officer Gartland’s failure to warn him of the
possibility of enhanced criminal penalties for refusing a blood test violated former
Section 1547(b)(2)(ii) of the Implied Consent Law and, therefore, DOT failed to
satisfy its burden of proof. Licensee contends that until the General Assembly
amended Section 1547(b)(2)(ii) in July 2017, Officer Gartland was required to give
Licensee the enhanced-penalty warning, even after Birchfield.
      To suspend a licensee’s operating privilege for refusing to submit to chemical
testing, DOT must prove that:

      (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 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. Dep’t of Transp., Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa.
Cmwlth. 2005). Once DOT satisfies its burden of proof, the burden then shifts to
the licensee to prove that he or she was incapable of making a knowing and
conscious refusal. Hinkel v. Dep’t of Transp., Bureau of Driver Licensing, 715 A.2d
556, 558 (Pa. Cmwlth. 1998).
      Here, the parties stipulated that: Officer Gartland had reasonable grounds to
arrest Licensee for driving under the influence; Officer Gartland asked Licensee to
submit to a blood test; Licensee refused; and Officer Gartland read to Licensee the
implied consent warnings in Form DL-26B but did not warn him about the
possibility of enhanced criminal penalties.    N.T., 6/22/17, at 3-4.    Moreover,
Licensee does not allege that he was incapable of making a knowing and conscious

                                         5
refusal. Thus, the only issue before this Court is whether DOT’s omission of the
enhanced-penalty warning from Form DL-26B violated former Section
1547(b)(2)(ii) of the Implied Consent Law.
      Our Court recently addressed this same issue in Garlick v. Dep’t of Transp.,
Bureau of Driver Licensing, 176 A.3d 1030 (Pa. Cmwlth. 2018) (en banc). In
Garlick, as in this case, the licensee argued that Form DL-26B failed to conform
with the requirements of Section 1547(b)(2)(ii) because it did not include a warning
that his refusal to submit to a blood test would subject him to enhanced criminal
penalties. 176 A.3d at 1035. We noted that “the language contained in [former]
Section 1547(b)(2)(ii) was mandatory at the time [the officer] requested that
Licensee submit to a blood test.” Id. at 1036. After Birchfield, however, enhanced
criminal penalties for refusing a blood test are no longer constitutionally permissible.
Consequently, at the time of his arrest, “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.”
Id.
      In rejecting the licensee’s claim that the implied consent warnings in Form
DL-26B were legally insufficient, we explained:

      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. 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

                                           6
       reason . . . a court must sever it from the remaining, valid portion of
       the statute”).

Id. Therefore, we held that the officer’s failure to warn the licensee that his refusal
to submit to a blood test would subject him to enhanced criminal penalties, as
required by Section 1547(b)(2)(ii) at the time of the arrest, did not mandate reversal
of his suspension. Id. at 1037-38; see also Negovan v. Dep’t of Transp., Bureau of
Driver Licensing, 172 A.3d 733, 738 (Pa. Cmwlth. 2017) (upholding license
suspension where police officer intentionally omitted enhanced-penalty warning
when he read implied consent warnings to licensee who was arrested six days after
Birchfield decision).
       For the reasons set forth in Garlick, we conclude that DOT satisfied its burden
of proving that Licensee was accurately warned of the only constitutionally
permissible consequence of refusing a blood test at the time of his arrest: the
suspension of his operating privilege.              Accordingly, the Trial Court properly
dismissed Licensee’s appeal and reinstated the suspension of his operating privilege
and the disqualification of his commercial driving privilege.7
       Order affirmed.



                                             __________________________________
                                             ELLEN CEISLER, Judge



       7
         In his brief, Licensee also argues that Section 1547(b)(2)(ii) of the Implied Consent Law
is not severable from the remainder of the statute and, thus, DOT’s omission of the enhanced-
penalty warning from Form DL-26B contravened the statute’s legislative purpose. Because
Licensee did not raise the severability issue before the Trial Court, it is waived. See Pa. R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on
appeal.”). In any event, as discussed above, this Court rejected a similar claim in Garlick. See
176 A.3d at 1036.
                                                7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mario C. Bologna,                   :
                    Appellant       :
                                    :
            v.                      : No. 1202 C.D. 2017
                                    :
Commonwealth of Pennsylvania,       :
Department of Transportation,       :
Bureau of Driver Licensing          :




                                  ORDER

            AND NOW, this 6th day of March, 2018, the Order of the Dauphin

County Court of Common Pleas, dated August 3, 2017, is hereby affirmed.



                                    __________________________________
                                    ELLEN CEISLER, Judge
