          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Marchese,                           :
                            Appellant       :
                                            :
               v.                           :   No. 1996 C.D. 2016
                                            :   Submitted: June 30, 2017
Commonwealth of Pennsylvania,               :
Department of Transportation,               :
Bureau of Driver Licensing                  :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION
BY JUDGE SIMPSON                            FILED: September 13, 2017

               Anthony Marchese (Licensee) appeals from an order of the Court of
Common Pleas of Lycoming County (trial court)1 that dismissed his license
suspension appeal from the Department of Transportation’s (DOT) 18-month
suspension of Licensee’s operating privilege under 75 Pa. C.S. §1547(b)(1)(ii)
based on his refusal to submit to a warrantless request for a blood test after being
arrested for driving under the influence of alcohol or controlled substance (DUI), a
violation of 75 Pa. C.S. §3802. Licensee contends Pennsylvania’s Implied Consent
Law, 75 Pa. C.S. §1547(a) and (b), violates the Fourth Amendment to the U.S.
Constitution because it requires suspension of an individual’s driving privilege
based on his refusal to comply with a warrantless request to submit a sample of
blood for chemical testing. For the reasons that follow, we affirm.



      1
          The Honorable Joy Reynolds McCoy presided.
                                  I. Background
            In November 2015, Pennsylvania State Police Trooper Adam Kirk
stopped Licensee’s vehicle in the City of Williamsport for violations of the Vehicle
Code, 75 Pa. C.S. §§101-9805. Trooper Kirk detected a strong odor of burnt
marijuana as he approached Licensee’s vehicle.         The trooper then directed
Licensee to exit the vehicle. At that time, Trooper Kirk located a glass container
that contained a green leafy residue which field tested positive for marijuana.
Trooper Kirk also observed that Licensee had glassy, bloodshot eyes and a green
leafy substance in his mouth. The trooper then requested that Licensee perform
various field sobriety tests. Based upon Licensee’s performance and Trooper
Kirk’s observations, the trooper placed Licensee under arrest for DUI and
transported him to Williamsport Hospital.


            At the hospital, Licensee declined to participate in a drug recognition
evaluation (DRE). Trooper Kirk read Licensee the implied consent warnings in
DOT’s DL-26 form verbatim and asked Licensee to consent to withdrawal of a
blood sample for chemical testing in accord with 75 Pa. C.S. §1547. Licensee
refused the request. Thereafter, Trooper Kirk submitted the required paperwork to
DOT.


            By letter dated January 12, 2016, DOT notified Licensee that his
driving privilege would be suspended for a period of 18 months as a result of his
chemical test refusal. Licensee timely appealed the notice of suspension. At a
hearing, DOT submitted Licensee’s driving record, which included a certified
record of an earlier DUI-controlled substance conviction in 2012. See Tr. Ct. Hr’g,



                                         2
8/23/16, Ex. C-1. In addition, Trooper Kirk testified regarding the particular
circumstances of his stop of Licensee’s vehicle and Licensee’s refusal of the
trooper’s request for a blood test.


              In response, Licensee presented no evidence, but asked to submit a
brief regarding the effect of the U.S. Supreme Court’s decision in Birchfield v.
North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016), on the case. In Birchfield,
the Supreme Court held that a state cannot criminally penalize a motorist for
refusing to submit to a warrantless request for a blood test after being arrested for
suspicion of DUI. The trial court granted Licensee’s request and set up a briefing
schedule for the parties.


              Following the submission of briefs, the trial court issued an opinion
and order dismissing Licensee’s appeal. In its opinion, the trial court rejected
Licensee’s contention that Birchfield rendered Pennsylvania’s Implied Consent
Law unconstitutional. Unlike the implied consent warnings given in North Dakota,
Pennsylvania’s DL-26 form does not advise a vehicle operator that it is a crime to
refuse a request for a blood test under the Implied Consent Law; rather, it is a civil
penalty. As such, the trial court determined the present case was distinguishable
from Birchfield, which has no effect on civil license suspensions.                    Licensee
appeals.2


       2
         Our review in a license suspension appeal is limited to determining whether the trial
court’s necessary findings of fact were supported by substantial evidence or whether the court
committed an error of law or otherwise abused its discretion. Dep’t of Transp., Bureau of Traffic
Safety v. O’Connell, 555 A.2d 873 (Pa. 1989); Reinhart v. Dep’t of Transp., Bureau of Driver
Licensing, 954 A.2d 761 (Pa. Cmwlth. 2008).



                                               3
                                        II. Discussion
                                        A. Argument
               Licensee contends that in light of the holding in Birchfield,
Pennsylvania’s Implied Consent Law violates the Fourth Amendment to the U.S.
Constitution3 and Article I, Section 8 of the Pennsylvania Constitution4 because it
requires suspension of the driving privilege of an individual charged with DUI for
refusing to submit to a warrantless request for a blood sample for chemical testing.
More specifically, Licensee asserts the Supreme Court phrased the issue before it
as “whether motorists lawfully arrested for drunk driving may be convicted of a
crime or otherwise penalized for refusing to take a warrantless test measuring the
alcohol in their bloodstream.” Birchfield, ___ U.S. at ___, 136 S.Ct. at 2172
(emphasis added).         With respect to blood tests, Licensee argues the Court
determined that the warrant requirement applies and that warrantless searches
violate a motorist’s constitutional rights to be free from unreasonable searches and
seizures.


               In addition, Licensee argues the language in Birchfield stating its
holding does not apply to implied consent laws merely imposing civil penalties is

       3
         The Fourth Amendment provides: “The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched and the persons or things to be seized.” U.S.
CONST. amend. IV.

       4
          Article I, Section 8 provides: “The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches and seizures, and no warrant to search any
place or to seize any person or things shall issue without describing them as nearly as may be,
nor without probable cause, supported by oath or affirmation subscribed to by the affiant.” PA
CONST. art. I, §8.



                                                4
obiter dicta.    Therefore, because such civil penalties were not at issue in
Birchfield, Licensee asserts this language is not binding precedent.


             Licensee further contends the Implied Consent Law violates the
unconstitutional conditions doctrine by requiring a motorist to surrender his
constitutional right to refuse a warrantless seizure of his blood in order to operate a
motor vehicle on the highways of Pennsylvania.            In support of his position,
Licensee cites: Koontz v. St. Johns River Water Management District, ___ U.S.
___, 133 S.Ct. 2586 (2013) (unconstitutional conditions doctrine vindicates the
Constitution’s enumerated rights by preventing governments from coercing people
into forfeiting them; Florida water management district may not require a
landowner to forfeit his constitutional right to just compensation for a government
taking of his property in order to obtain a building permit, extortionate demands of
this sort frustrate the Fifth Amendment right to just compensation); Camara v.
Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1987)
(city ordinance which authorized city health and safety inspectors to enter any
building in the city without a warrant to perform an inspection after presenting
proper credentials, and which provided for a criminal penalty if a residential tenant
refused, violated tenant’s Fourth Amendment rights); Frost v. Railroad
Commission of State of California, 271 U.S. 583 (1926) (holding that a state, in
granting privileges, may not impose conditions that require the relinquishment of
constitutional rights; California statute violated private carrier’s constitutional right
to do business in the state by compelling him to obtain a certificate of convenience
and assume, against his will, the duties and burdens of a common carrier in order
to use the state’s public highways).



                                           5
             Summarizing, Licensee asserts it is clear that DOT penalized him
under the Implied Consent Law by suspending his driving privilege because he
refused to submit to a warrantless request for a blood test. In accord with the
unconstitutional conditions doctrine, Licensee requests that we find DOT’s
suspension of his driving privilege, based on his refusal of a warrantless request for
a blood test, to be a violation of his constitutional rights against unreasonable
searches and seizures.


                                    B. Analysis
             Initially, we note that license suspensions, unlike the DUI proceeding,
are civil, not criminal, proceedings. See Dep’t of Transp., Bureau of Traffic Safety
v. O’Connell, 555 A.2d 873 (Pa. 1989); Bashore v. Dep’t of Transp., Bureau of
Driver Licensing, 27 A.3d 272 (Pa. Cmwlth. 2011) (a licensee suspension
stemming from a refusal to submit to chemical testing is an administrative
proceeding separate from the criminal DUI proceeding).


             Here, Licensee seeks to extend the scope of the holding in Birchfield,
that a state may not impose criminal penalties on the refusal to submit to a
warrantless blood test. Recently, this Court determined that Birchfield does not
apply to civil license suspensions under Pennsylvania’s Implied Consent Law for
refusing to submit to a warrantless request for a blood sample for chemical testing
following a DUI arrest. Boseman v. Dep’t of Transp., Bureau of Driver Licensing,
157 A.3d 10 (Pa. Cmwlth. 2017), appeal denied, ___ A.3d ___ (Pa., No. 210 MAL
2017, filed August 22, 2017).




                                          6
            Nevertheless, Licensee asserts that civil penalties were not at issue in
Birchfield, wherein the Supreme Court recognized that the petitioners did not
question the constitutionality of such statutes.      Therefore Licensee argues
Birchfield is not binding precedent as to the constitutional validity of implied
consent laws that impose civil penalties. We disagree. In particular, the Supreme
Court observed: “Our 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.” Birchfield, ___ U.S. at ___,
136 S.Ct. at 2185 (citing Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552
(2013) and South Dakota v. Neville, 459 U.S. 553 (1983)).           Moreover, the
Birchfield Court instructed, “nothing we say here should be read to cast doubt on
them.” Id. at ___, 136 S.Ct. at 2185 (emphasis added).


            Turning to recent Pennsylvania case law, we believe our Supreme
Court’s discussion in Commonwealth v. Myers, ___ A.3d ___ (Pa., No. 7 EAP
2016, filed July 19, 2017), 2017 WL 3045867, of a motorist’s rights under the
Implied Consent Law to refuse a warrantless blood test, is helpful here. In Myers,
the Court rejected the Commonwealth’s argument that the Implied Consent Law
constitutes a valid exception to the warrant requirement of the Fourth Amendment
to the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution.
In holding that the Implied Consent Law does not authorize a warrantless blood
test of an unconscious person, the Court reasoned the “statute cannot authorize
what the Fourth Amendment or Article I, Section 8 would prohibit.” Myers, slip
op. at 17, ___ A.3d at ___, 2017 WL 3045867 at *8. To that end, the Court
observed that the Birchfield holding supports the conclusion that despite the



                                        7
existence of an implied consent provision, an individual must give his actual and
voluntary consent at the time the blood test is requested. See Myers, slip op. at 24-
26, ___ A.3d at ___, 2017 WL 3045867 at *11.


             Notably, the Supreme Court declined to address the issue of whether
the civil penalties in the Implied Consent Law render the statute invalid under
Birchfield. In particular, the Court noted:

             In a future case, Birchfield may impact the constitutional
             validity of certain provisions of Pennsylvania’s implied
             consent scheme. But the instant case presents no facial
             constitutional challenge to any statutory provision.
             Accordingly, we do not consider the effect of the
             Birchfield decision upon our statutes. Rather, we
             consider Birchfield only as it relates to our conclusion
             that, in the absence of actual, voluntary consent,
             statutorily implied consent does not dispense with the
             need for police to obtain a warrant before conducting a
             chemical test of a DUI arrestee’s blood.

Myers, slip op. at 30, ___ A.3d at ___, 2017 WL 3045867 at *13.


             However, in Boseman this Court determined that the rule in
Birchfield, that a DUI arrestee may not be criminally prosecuted for refusing a
request for a warrantless blood test, does not apply to civil license suspensions. As
discussed above, a license suspension stemming from a refusal to submit to
chemical testing is a separate civil proceeding from a criminal DUI proceeding
arising out of the same incident. Bashore. It is not a crime to refuse chemical
testing under the Implied Consent Law. Boseman.




                                          8
             By its own language, the Birchfield Court unequivocally stated that
“nothing we say here should be read to cast doubt” on the constitutionality of state
implied consent laws imposing civil penalties and evidentiary consequences for
refusing a blood test. Birchfield, ___ U.S. at ___, 136 S.Ct. at 2185 (emphasis
added). Contrary to Licensee’s characterization of this language as obiter dicta,
we believe the U.S. Supreme Court clearly indicated nothing in Birchfield
questions the constitutionality of state implied consent laws imposing only civil
sanctions. To that end, the Court stated: “It is another matter, however, for a State
to not only insist upon an intrusive blood test, but also to impose criminal penalties
on the refusal to submit to such a test.” Id. (emphasis added). Therefore, the Court
concluded “that motorists cannot be deemed to have consented to submit to a blood
test on pain of committing a criminal offense.” Birchfield, ___ U.S. at ___, 136
S.Ct. at 2186 (emphasis added).


             Given the Birchfield Court’s explicit limitation on its holding to
implied consent laws imposing criminal penalties, we reject Licensee’s contention
that it must logically be extended to render unconstitutional implied consent laws
which provide for only civil penalties for refusal of a blood test. Boseman. Such
an interpretation would be contrary to the U.S. Supreme Court’s limiting language
in Birchfield.


             Further, we also reject Licensee’s contention that Pennsylvania’s
Implied Consent Law violates the unconstitutional conditions doctrine by
conditioning a person’s driver’s license on the implied consent to submit to a
warrantless blood test in violation of his Fourth Amendment rights against



                                          9
unlawful searches and seizures. It is well settled in Pennsylvania that driving is a
privilege, not a property right. Plowman v. Dep’t of Transp., Bureau of Driver
Licensing, 635 A.2d 124 (Pa. 1993); Alexander v. Dep’t of Transp., Bureau of
Driver Licensing, 880 A.2d 552 (Pa. Cmwlth. 2005). To obtain the benefit of such
a privilege, a driver must abide by the laws of the Commonwealth relating to the
privilege.   Alexander.    In Department of Transportation, Bureau of Driver
Licensing v. Scott, 684 A.2d 539, 544 (Pa. 1996), our Supreme Court stated:

             Driving is a civil privilege conferred on state residents
             who meet the necessary qualifications. 75 Pa. C.S.
             §1501. Under the terms of the Implied Consent Law, one
             of the necessary qualifications to continuing to hold that
             privilege is that a motorist must submit to chemical
             sobriety testing when requested to do so, in accordance
             with the prerequisites of the Implied Consent Law, by an
             authorized law enforcement officer. The obligation to
             submit to testing is related specifically to the motorist’s
             continued enjoyment of his operator’s license.

             When a licensee refuses to submit to chemical testing, DOT is
statutorily required to impose a civil license suspension. 75 Pa. C.S. §1547(b).
Nevertheless, a licensee has the absolute right to revoke his consent and refuse to
submit to chemical testing. Myers.


             Regardless, Licensee contends the Implied Consent Law imposes an
unconstitutional condition upon his driving privilege by requiring that he submit to
a warrantless request for a blood test under pain of a license suspension. We
disagree. In order to uphold a license suspension, DOT must establish: (1) that the
licensee was arrested for DUI by a police officer who had reasonable grounds to
believe the licensee was operating a vehicle while under the influence of alcohol or


                                         10
a controlled substance, (2) was asked to submit to a chemical test, (3) refused to do
so, and (4) was warned that a refusal would result in a license suspension. Regula
v. Dep’t of Transp., Bureau of Driver Licensing, 146 A.3d 836 (Pa. Cmwlth.
2016). An officer has reasonable grounds to believe an individual was operating
while under the influence if a reasonable person in the position of a police officer,
viewing the facts and circumstances as they appeared to the officer at the time,
could conclude the individual operated his vehicle while under the influence of
alcohol or a controlled substance. Id.


             The standard of reasonable grounds to support a license suspension is
akin to the reasonable suspicion standard of the Fourth Amendment. Id. (citing
Terry v. Ohio, 392 U.S. 1 (1968)). The basis for the exclusionary rule in Fourth
Amendment situations is to deter police officials from engaging in improper
conduct for the purpose of obtaining criminal convictions. Id. (citing Terry; Mapp
v. Ohio, 367 U.S. 643 (1961)). As discussed above, license suspensions are civil,
not criminal proceedings. O’Connell; Boseman; Regula; Bashore. As we noted in
Boseman, the U.S. Supreme Court has not extended the Fourth Amendment’s
exclusionary rule to proceedings other than criminal trials. See Pa. Bd. of Prob. &
Parole v. Scott, 524 U.S. 357 (1998).


             The Birchfield Court noted that efforts to combat drunk driving across
the nation, including implied consent laws, have been remarkably successful. All
50 states have adopted implied consent laws that require motorists, as a condition
of driving within the state, to consent to blood alcohol testing following an arrest
for suspicion of DUI. Birchfield (citing McNeely). Suspension or revocation of



                                         11
the motorist’s driver’s license remains the standard legal consequence for refusal.
Id. Therefore, because a license suspension under Pennsylvania’s Implied Consent
Law does not involve criminal penalties and thus does not implicate Fourth
Amendment rights, a warrantless request for a blood test under the Implied
Consent Law, based upon a reasonable suspicion of DUI, does not violate the
Fourth Amendment or the unconstitutional conditions doctrine.            Birchfield;
Boseman; Regula.


            Moreover, none of the U.S. Supreme Court cases Licensee cites
support his contention that the Implied Consent Law places an unconstitutional
condition on his driving privilege. As we noted in Delchester Developers, L.P. v.
Zoning Hearing Board, 161 A.3d 1081 (Pa. Cmwlth. 2017), unconstitutional
conditions cases generally arise in the context of land development or zoning
approval process and involve a request that a developer dedicate or turn over
property to the municipality, or something similar, in order to obtain a permit.
This results in a taking without just compensation. See, e.g., Koontz (Florida
water management district may not require landowner to forfeit Fifth Amendment
right to just compensation for taking by requiring landowner to fund offsite
mitigation projects lacking a proper nexus and proportionality to the impacts of the
proposed development).


            In addition, Camara is distinguishable because it involved the
imposition of a criminal penalty upon tenants who refused warrantless searches of
their leasehold by municipal inspectors. The Court determined the municipal
ordinance authorizing such inspections violated the tenants’ Fourth Amendment



                                        12
rights. Likewise, Frost, a 1926 case wherein the U.S. Supreme Court held invalid a
California statute conditioning a private carrier’s access to its public highways
upon the carrier’s agreement to obtain a certificate of convenience and assume the
duties and burdens of a common carrier, is of little help in the present case.


             The touchstone of Fourth Amendment analysis is reasonableness.
Birchfield. Here, Pennsylvania’s Implied Consent Law subjects a Pennsylvania
resident seeking a driver’s license to the reasonable condition of an implied
consent to chemical testing under pain of civil license suspension following a DUI
arrest. In accord with the Commonwealth’s legitimate objective of combatting
drunk driving, it may reasonably condition continuation of an operator’s driving
privilege upon the requirement to submit to a warrantless blood test following an
arrest for DUI under pain of a civil license suspension. Birchfield; Boseman. The
purpose of the exclusionary rule for Fourth Amendment violations is to deter
police officials from engaging in improper conduct for the purpose of obtaining
criminal convictions. Terry, Mapp; Regula. The Implied Consent Law does not
authorize police officers to seize a person’s blood without permission; instead, it
imposes an ultimatum upon the DUI arrestee to either submit to the test or face the
civil consequences. Myers. As such, a civil license suspension under the Implied
Consent Law does not implicate Fourth Amendment rights. Birchfield; Boseman.
Consequently, the unconstitutional conditions doctrine is inapplicable here.


                                   III. Conclusion
             For the above reasons, we discern no error in the trial court’s order
denying Licensee’s statutory appeal of his civil license suspension. Accordingly,



                                          13
we affirm. Further, we grant DOT’s request to reinstate the 18-month suspension
of Licensee’s operating privilege under 75 Pa. C.S. §1547(b)(1)(ii) within a
reasonable time.5




                                            ROBERT SIMPSON, Judge




       5
        By order dated December 13, 2016, the trial court stayed its order reinstating Licensee’s
suspension pending final resolution of his appeal to this Court. See Certified Record, Item #11.



                                               14
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Marchese,                        :
                         Appellant       :
                                         :
            v.                           :   No. 1996 C.D. 2016
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Driver Licensing               :


                                     ORDER

            AND NOW, this 13th day of September, 2017, the order of the Court
of Common Pleas of Lycoming County is AFFIRMED. Further, the Department
of Transportation, Bureau of Driver Licensing, is hereby directed to REINSTATE
the 18-month suspension of Anthony Marchese’s operating privilege under 75 Pa.
C.S. §1547(b)(1)(ii) within a reasonable time.




                                      ROBERT SIMPSON, Judge
