J-S42008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES HENRY SHEPARD, IV                    :
                                               :
                       Appellant               :   No. 238 MDA 2018

              Appeal from the Order Entered November 27, 2017
      In the Court of Common Pleas of Centre County Criminal Division at
                        No(s): CP-14-CR-0000644-2017


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                               FILED AUGUST 17, 2018

       James Henry Shepard, IV appeals from the order denying his motion to

suppress blood alcohol content (“BAC”) test results obtained without a warrant

during a driving under the influence (“DUI”) investigation.1 We affirm.

       The parties stipulated to the following facts underlying this appeal. On

November 27, 2016, at approximately 12:21 a.m., Trooper Barry Rowland

initiated a traffic stop after observing Appellant’s vehicle swerving between

lanes and straddling the yellow line.          Upon approaching the vehicle, the

trooper smelled marijuana emanating from the vehicle and Appellant, and


____________________________________________


1 Appellant timely moved the trial court to certify the interlocutory suppression
order for our review pursuant to 42 Pa.C.S. § 702(b). The trial court granted
the request, and Appellant timely filed a petition for permission to appeal in
this Court pursuant to Pa.R.A.P. 1311(b). We granted Appellant’s petition,
per curiam, and this timely appeal of the suppression order followed.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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noticed Appellant seemed dazed. Appellant admitted to smoking marijuana

earlier that evening. Appellant agreed to perform standard field sobriety tests,

which he failed.

       Appellant was arrested and transported to Mount Nittany Medical Center

for BAC testing. The trooper read to Appellant the Pennsylvania Department

of Transportation DL-26B waiver of rights form (“the DL-26B form”), as

revised in June 2016.2 Appellant thereafter consented to have his blood drawn

and signed the DL-26B form. Trooper Rowland did not warn Appellant of any

other penalties beyond what was contained in the DL-26B form, which made


____________________________________________


2Specifically, the DL-26B form that was read to Appellant 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 a 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.

DL-26B Form.


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no reference to any criminal penalties.     Nor did Trooper Rowland advise

Appellant that no enhanced criminal penalties would apply if Appellant refused

the blood draw. Appellant was not threatened by Trooper Rowland to submit

to the blood draw.

      The test results    indicated   the presence of THC, the principal

psychoactive constituent of marijuana. Appellant was charged with driving

under the influence of alcohol or a controlled substance, and several drug and

vehicle offenses. On July 20, 2017, he filed a motion to suppress the BAC test

results on the basis that, because no warrant was obtained to test his blood,

his Fourth Amendment rights were violated pursuant to Birchfield v. North

Dakota, 136 S. Ct. 2160 (2016). The trial court conducted a suppression

hearing, after which the parties submitted briefs in support of their respective

positions. On November 27, 2017, the trial court entered an order denying

suppression. This timely appeal followed.

      On appeal, Appellant raises the following issue for our review: “Was

[Appellant’s] consent to the blood draw unconstitutional pursuant to the

Fourth Amendment to the United States Constitution and Article I , Section 8

of the Pennsylvania Constitution?” Appellant’s brief at 5.

      Appellant challenges the trial court’s denial of his motion to suppress

the BAC test results on the ground that his consent was invalid. In addressing

a challenge to the denial of a suppression motion,

      Our standard of review . . . is limited to determining whether the
      factual findings are supported by the record and whether the legal

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      conclusions drawn from those facts are correct. We are bound by
      the suppression court’s factual findings so long as they are
      supported by the record; our standard of review on questions of
      law is de novo. Where, as here, the defendant is appealing the
      ruling of the suppression court, we may consider only the evidence
      of the Commonwealth and so much of the evidence for the defense
      as remains uncontradicted. Our scope of review of suppression
      rulings includes only the suppression hearing record . . .

Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017) (citations

omitted).

      Preliminarily, we review the legal and administrative developments

regarding Pennsylvania’s DUI laws over the past two years. In June of 2016,

the Supreme Court of the United States in Birchfield held that warrantless

blood draws cannot be justified as a search incident to arrest, and therefore a

state cannot threaten enhanced criminal penalties as a means to obtain

consent. Birchfield, supra at 2185-86. This Court subsequently held that

the imposition of enhanced criminal penalties for failure to consent to a blood

test constituted an illegal sentence under Birchfield. See Commonwealth

v. Giron, 155 A.3d 635, 639 (Pa.Super. 2017).

      Within one week of the Birchfield decision, PennDOT revised the DL-

26 form to remove the warnings mandated by 75 Pa.C.S. § 3804(c) that

informed individuals suspected of DUI that they would face enhanced criminal

penalties if they refused to submit to a blood test. This revised DL-26B form,

which does not include warnings regarding enhanced criminal penalties,

correctly reflects Birchfield’s holding.   Despite the creation of the DL-26B

form in the wake of Birchfield, numerous cases pending before trial and

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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 DL-26 form warnings read to defendants prior

to PennDOT’s revision were partially inaccurate.     See 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 appellant to more severe penalties

set forth in 75 Pa.C.S. § 3804(c)] was partially inaccurate.”).

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

2017, which amended 75 Pa.C.S. § 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. § 3804(c). Hence, from July

20, 2017, and thereafter, the DL-26B form conforms to statutory law.

However, for approximately the prior thirteen months, including at the time

of Appellant’s arrest, 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, we turn to Appellant’s issue. Appellant argues

that, despite the elimination in the DL-26B form of any reference to the


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imposition of criminal penalties for refusing to consent to a blood test, criminal

penalties still attached to such a refusal under then-existing Pennsylvania law

because Appellant was arrested before subsection 3804(c) was amended to

comport with Birchfield. On this basis, Appellant contends that his consent

to the blood test was not voluntary because he was “expected and assumed

to know the laws of this Commonwealth, including the criminal penalties if he

refused to consent to a blood draw.” Appellant’s brief at 16. Appellant argues

that, given his knowledge that subsection 3804(c) had not been amended, he

“was not made aware of his rights to refuse against a warrantless search since

he was not informed that the enhanced criminal penalties of [subsection

3804(c)] would not be enforced.” Id. at 16-17.

      Appellant’s arguments lack merit.      It is well established that when a

statute is deemed unconstitutional, it is ineffective for any purpose and it is

as if it were never enacted. See Commonwealth v. Wolfe, 140 A.3d 651,

661 (Pa. 2016); see also 16 C.J.S. CONSTITUTIONAL LAW § 265 (2016)

(reciting the general rule that an unconstitutional, non-severable statute is

“not a law, has no existence, is a nullity, or has no force or effect or is

inoperative” (footnotes omitted)). Thus, even though subsection 3804(c) had

not yet been amended or specifically deemed unconstitutional by Pennsylvania

appellate courts at the time of Appellant’s arrest, it was nevertheless a legal

nullity pursuant to Birchfield. See Commonwealth v. Johnson, __ A.3d

__, 2018 PA Super 133, at *9 (Pa.Super. 2018) (holding that “the Supreme


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Court of the United States’ constitutional pronouncements have immediate

and national consequence. Birchfield became the ‘supreme Law of the Land,’

which [appellant] and all other citizens of the United States were presumed to

know on the day that the Supreme Court announced it - April 20, 2016”); see

also Commonwealth v. Smith, 177 A.3d 915, 921 (Pa.Super. 2017) (“To

reiterate, the decision in Birchfield, which was controlling law at the time of

Appellant’s arrest, prohibited states from imposing criminal penalties upon an

individual’s refusal to submit to a warrantless blood test.”).

      Moreover, Appellant’s ignorance of United States constitutional law

cannot invalidate his consent to the blood draw. Johnson, supra at *9. On

the day Birchfield became law, Appellant should have known that subsection

3804(c)’s additional criminal sanctions were without force or effect of law, and

the law constructively imports that knowledge to him.            Id.   Therefore,

Appellant’s ignorance of his constitutional rights provides no excuse.       Id.

Accordingly, we conclude that the trial court correctly determined that the

language contained in the revised DL-26B form was a correct statement of the

law in accordance with Birchfield when Officer Rowland read it to Appellant.

See Trial Court Opinion, 11/27/17, at 9-10.

      Appellant next claims that his consent was invalid under the totality of

the circumstances because it was given when he was under arrest and not

free to leave, and he was not informed of his right to refuse the blood draw.

Appellant’s brief at 24-26.


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      Under Evans, a trial court must consider the totality of the

circumstances when determining if a DUI suspect’s consent to a blood draw

was voluntary.    See Evans, supra at 331.        As Our Supreme Court has

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) (citing Commonwealth v.

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

      Based on our review of the certified record, we conclude that the facts

of the instant case clearly weigh in favor of a finding of knowing and voluntary

consent. Although Appellant was in custody at the time he consented, there

is no evidence that his consent to the blood draw was the product of duress,

threats, or coercion on the part of law enforcement.        No testimony was

presented that Trooper Rowland’s demeanor or expression was harsh or

confrontational, or that he misrepresented the facts in an effort to get

Appellant to consent to the blood draw.      Indeed, Appellant stipulated that

Trooper Rowland did not threaten him. Trooper Rowland read Appellant the

revised DL-26B form, which provided an accurate statement of the law, before

requesting his consent to the blood draw. The revised DL-26B warning clearly

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indicated the blood draw was merely a request, which Appellant was free to

refuse and be subject to certain civil penalties. Appellant had the opportunity

to read and sign the revised DL-26B form, and thereafter elected to sign it,

indicating his consent to the blood draw.

        Furthermore, any subjective, but inaccurate, belief of Appellant that he

could not refuse a blood test without criminal penalties does not weigh heavily

against voluntariness since, as noted above, Appellant was presumed to know

the legal effect of Birchfield on the day it was announced. There was no

evidence to suggest that Appellant suffered any physical mental, or emotional

limitation, or had any language barrier that would have impaired his ability to

comprehend the language of the DL-26B form so as to render him incapable

of providing voluntary consent to the blood draw. Finally, no evidence was

presented regarding whether Appellant was aware that incriminating evidence

would be found in his blood.

        Accordingly, the record supports the trial court’s determination that,

under the totality of the circumstances, Appellant’s consent was knowing and

voluntary. See Trial Court Opinion, 11/27/17, at 11. Therefore, the trial court

did not err in denying Appellant’s motion to suppress the results of his BAC

test.




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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/18




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