                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Todd Richard Dewald,                             :
                Appellant                        :
                                                 :
                 v.                              : No. 554 C.D. 2018
                                                 : Submitted: February 11, 2019
Commonwealth of Pennsylvania,                    :
Department of Transportation,                    :
Bureau of Driver’s Licensing                     :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                                FILED: April 5, 2019

                 Todd Richard Dewald (Licensee) appeals an order of the Court of
Common Pleas of Indiana County (trial court) dismissing his appeal of a one-year
suspension of his operating privilege for refusing a blood test pursuant to Section
1547(b)(1)(i) of the Vehicle Code,1 75 Pa. C.S. §1547(b)(1)(i), commonly known as
the Implied Consent Law. On appeal, Licensee argues that the warnings he received
did not comport with the requirements of former Section 1547(b)(2) of the Vehicle
Code, 75 Pa. C.S. §1547(b)(2), which was in effect at the time of his arrest, because


1
    This section provides:
       (1) If any person placed under arrest for a violation of section 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 as follows:
               (i) Except as set forth in subparagraph (ii), for a period of 12
               months.
75 Pa. C.S. §1547(b)(1)(i).
he was not warned of the enhanced criminal penalties for refusing a blood test. For
the reasons to follow, we affirm.
             The relevant facts are not in dispute. On August 23, 2016, Licensee
was arrested for driving under the influence of alcohol in violation of Section 3802
of the Vehicle Code, 75 Pa. C.S. §3802. He refused to submit to a blood test. On
September 7, 2016, the Pennsylvania Department of Transportation, Bureau of
Driver Licensing (Department), notified Licensee that his operating privilege was
suspended for one year for refusing the blood test.          Licensee appealed the
suspension, and the trial court conducted a hearing on his appeal.
             At the hearing, the parties stipulated that on August 23, 2016, Indiana
University of Pennsylvania Police Officer Bruce Waters arrested Licensee for
operating a vehicle under the influence. The parties also stipulated that Officer
Waters read to Licensee the Department’s Form DL-26B, which contained the
chemical testing warnings. Licensee refused to take a blood test.
             The Department then presented Officer Waters, who testified that he
transported Licensee to the hospital, where he read verbatim the following warnings
from the Department’s Form DL-26B:

             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 with an attorney or anyone else
             before deciding whether to submit to testing. If you request to

                                          2
               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.

Notes of Testimony, 5/30/2017, at 7 (N.T. ___); Reproduced Record at 9a (R.R.
___). On cross-examination, Officer Waters stated that he did not warn Licensee of
the enhanced criminal penalties for refusing a blood test, as required by the language
in Section 1547(b)(2) of the Vehicle Code in effect at the time of Licensee’s arrest.
               At the conclusion of the hearing and with the agreement of the parties,
the trial court continued the case pending disposition of the appeal in Garlick v.
Department of Transportation, Bureau of Driver Licensing, 176 A.3d 1030 (Pa.
Cmwlth. 2018) (en banc), which raised the same legal issue raised by Licensee.
Thereafter, on the basis of this Court’s holding in Garlick,2 the trial court held that
the warning given to Licensee was lawful and denied Licensee’s appeal.
               On appeal to this Court,3 Licensee argues that his license cannot be
suspended because Officer Waters’ warnings did not comport with the statutory
mandate as it existed when he was arrested. Licensee contends that Officer Waters
had to warn him of the enhanced criminal penalties for refusing a blood test, even
though those enhanced penalties had been declared unconstitutional. At the time of
Licensee’s arrest, the only constitutionally valid consequence for refusing a




2
  In Garlick, 176 A.3d 1030, this Court held that the licensee’s warning was lawful, in spite of the
fact that Section 1547(b)(2)(ii) of the Vehicle Code required a warning about enhanced criminal
penalties which was not repeated to the licensee.
3
  This Court’s review determines whether the trial court committed an error of law or abused its
discretion, or whether the trial court’s findings of fact are supported by substantial evidence.
Garlick, 176 A.3d at 1035 n.6. On questions of law, our scope of review is plenary. Deliman v.
Department of Transportation, Bureau of Driver Licensing, 718 A.2d 388, 389 n.1 (Pa. Cmwlth.
1998).
                                                 3
requested blood test was a suspension of his operating privilege, not an enhanced
criminal penalty.
              At the time of Licensee’s arrest on August 23, 2016, Section 1547(a)(1)
of the Vehicle Code stated as follows:

              Any person who drives, operates or is in actual physical control
              of the movement of a vehicle in this Commonwealth shall be
              deemed to have given consent to one or more chemical tests of
              breath or blood for the purpose of determining the alcoholic
              content of blood or the presence of a controlled substance if a
              police officer has reasonable grounds to believe the person to
              have been driving, operating or in actual physical control of the
              movement of a vehicle:
                      (1) in violation of section 1543(b)(1.1)(relating to
                      driving while operating privilege is suspended or
                      revoked), 3802 (relating to driving under influence
                      of alcohol or controlled substance) or 3808(a)(2)
                      (relating to illegally operating a motor vehicle not
                      equipped with ignition interlock)[.]

75 Pa. C.S. §1547(a)(1) (former provision).4 Further, Section 1547(b)(2) required a
police officer to warn a driver stopped on suspicion of driving under the influence
of the following:

              (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).

75 Pa. C.S. §1547(b)(2) (former provision) (emphasis added).5


4
  Act of May 25, 2016, P.L. 236, immediately effective.
5
  Act of September 30, 2003, P.L. 120.
                                               4
               In June 2016, the United States Supreme Court decided Birchfield v.
North Dakota, 136 S. Ct. 2160 (2016), holding that a state could not impose criminal
penalties on a motorist for refusing to submit to a blood test unless a search warrant
was first obtained.6 Id. at 2185. Thereafter, the Superior Court held that because
Pennsylvania’s Implied Consent Law “impose[d] criminal penalties on the refusal
to submit to such a test,” it contravened the constitutional protection against a
warrantless search announced in Birchfield. Commonwealth v. Evans, 153 A.3d 323,
331 (Pa. Super. 2016) (quoting Birchfield, 136 S. Ct. at 2185-86). Effectively,
Birchfield and Evans rendered the “enhanced criminal penalties for refusing a blood
test” in the Vehicle Code unconstitutional and unenforceable.                       Tomasic v.
Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 1189
C.D. 2017, filed June 19, 2018), slip op. at 7 (unreported).7 On July 20, 2017, the
General Assembly amended Section 1547(b)(2) of the Vehicle Code to make it
conform to the United States Constitution. See Section 3 of the Act of July 20, 2017,


6
   In Birchfield, motorists from North Dakota and Minnesota challenged their states’ implied
consent laws, which imposed criminal penalties on drivers suspected of driving under the influence
of alcohol who refused a breath or blood test. The motorists argued that a police officer needed a
search warrant before conducting either a breath or blood test.
         The United States Supreme Court held that a search warrant was required to take a blood
sample but not a breath test. Birchfield, 136 S. Ct. at 2184-85. With regard to the states’ implied
consent laws, the Supreme Court stated that “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[,]” and that nothing in its opinion “should be read to cast doubt
on them.” Id. at 2185. However, it rejected the governments’ argument that the blood tests were
“justified based on the driver’s legally implied consent to them.” Id. The Supreme Court explained
that “[t]here must be a limit on the consequences to which [a] motorist may be deemed to have
consented by virtue of a decision to drive on public roads.” Id. It held that drivers “cannot be
deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id.
at 2186.
7
  An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” 210 Pa. Code §69.414(a).
                                                5
P.L. 333, 75 Pa. C.S. §1547(b)(2).8 Notably, the holding in Birchfield had no impact
upon a state’s ability to suspend a driver’s license where the licensee refuses testing.
Boseman v. Department of Transportation, Bureau of Driver Licensing, 157 A.3d
10, 21 (Pa. Cmwlth.), appeal denied, 170 A.3d 996 (Pa. 2017).
               With this background, we address Licensee’s challenge to the legal
sufficiency of the warnings he received. Licensee contends that at the time of his
arrest, former Section 1547(b)(2)(ii) required a police officer to warn a driver that
he would be subject to enhanced criminal penalties for refusing a blood test. In
response to Birchfield, the Department revised Form DL-26B to remove the
reference to these enhanced criminal penalties.                   Licensee contends that the
Department had no justification “for [departing] from the mandated implied consent
warnings of Section 1547(b)(2) in [a civil suspension.]” Licensee Brief at 13-14.
               Licensee’s issue was decided in Garlick. There, the licensee, arrested
on suspicion of driving under the influence, was read the warnings contained on
Form DL-26B. The form did not warn of enhanced criminal penalties pursuant to
former Section 1547(b)(2)(ii) of the Vehicle Code. Before the trial court, the
licensee argued that his operating privilege could not be suspended because the
officer did not warn him of the enhanced criminal penalties. The trial court denied




8
 It states:
        (2) 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 the person will be subject to a restoration fee of up
                 to $2,000; and
                 (ii) if the person refuses to submit to chemical breath 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).
75 Pa. C.S. §1547(b)(2).
                                                  6
the licensee’s appeal for the stated reason that the warning given to the licensee was
legally accurate, as a consequence of Birchfield. The licensee appealed the decision.
              This Court explained that “the purpose behind [Section 1547(b)(2) was]
to make a licensee aware ‘of the consequences of a refusal to take the test so that he
can make a knowing and conscious choice.’” Garlick, 176 A.3d at 1036 (quoting
Department of Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873,
877 (Pa. 1989)). However, after Birchfield, the licensee

              could not, as a matter of constitutional law, be subject to such
              penalties. Stated simply, enhanced criminal penalties were not a
              consequence of [the licensee] refusing the requested blood
              test…. [T]he 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.

Garlick, 176 A.3d at 1036 (citations omitted). We held that the warnings given to
the licensee accurately informed him of the consequences for refusing a blood test.
              We are bound by Garlick. Accordingly, the consequence to Licensee
for refusing a requested blood test was the suspension of his operating privilege.
Officer Waters informed Licensee that his refusal “to submit to the blood test” would
result in his “operating privileges” being suspended “for at least 12 months.” N.T.
7; R.R. 9a. Those warnings were legally accurate.
              Licensee argues that the precedent in Department of Transportation,
Bureau of Driver Licensing v. Weaver, 912 A.2d 259 (Pa. 2006), and Boseman, 157
A.3d 10, requires a different result.9 This argument was also raised, and rejected, in
Garlick, where we explained:

9
  In Weaver, the Pennsylvania Supreme Court stated that subparagraph (ii) of Section 1547(b) of
the Vehicle Code “commands police officers to inform an arrestee that ‘(ii) upon conviction, plea
                                               7
               what [the licensee] seems to suggest is that, in order for his
               license suspension to be valid, [the police officer] had to violate
               [his] Fourth Amendment rights by warning [him] about the no-
               longer enforceable enhanced criminal penalties because Section
               1547(b)(2)(ii) still required that warning. This constitutional
               violation, according to [the licensee’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, [the licensee’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 1037 (emphasis added). The same reasoning applies here.
               The Department’s deletion of the warning in Form DL-26B about
enhanced criminal penalties brought the form into conformance with the law post-
Birchfield. By omitting the warning about enhanced criminal penalties, Officer
Waters gave Licensee a warning that was legally sufficient and constitutional. Thus,
the trial court did not err in dismissing Licensee’s appeal.
               For these reasons, the order of the trial court is affirmed.

                                          _____________________________________
                                          MARY HANNAH LEAVITT, President Judge




or adjudication of delinquency for violating section 3802(a)[(relating to driving under the
influence of alcohol or a controlled substance)], the person will be subject to the penalties provided
in section 3804(c) (relating to penalties).’” Weaver, 912 A.2d at 264 (citing 75 Pa. C.S.
§1547(b)(2)(ii)).
                                                  8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Todd Richard Dewald,                :
                Appellant           :
                                    :
           v.                       : No. 554 C.D. 2018
                                    :
Commonwealth of Pennsylvania,       :
Department of Transportation,       :
Bureau of Driver’s Licensing        :


                                ORDER

           AND NOW, this 5th day of April, 2019, the order of the Court of
Common Pleas of Indiana County dated March 27, 2018, in the above-captioned
matter is AFFIRMED.

                                ______________________________________
                                MARY HANNAH LEAVITT, President Judge
