                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bradley Graffius,                             :
                            Appellant         :
                                              :
                     v.                       :
                                              :
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :   No. 880 C.D. 2017
Bureau of Driver Licensing                    :   Submitted: January 12, 2018


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


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: March 20, 2018

              Bradley Graffius (Licensee) appeals from the York County Common
Pleas Court’s May 31, 2017 order dismissing his appeal and reinstating the
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing’s (Department) operating privilege suspension.              Licensee presents two
issues for this Court’s review: (1) whether the arresting officer’s failure to read the
enhanced penalties in the implied consent warning (Form DL-26)1 bars the
Department from suspending Licensee’s operating privilege for refusing to submit to
chemical testing; and, (2) whether the enhanced penalties provision is severable from
Section 1547 of the Vehicle Code.2 After review, we affirm.




       1
         “The [Form] DL-26 [] contains the chemical test warnings required by Section 1547 of the
Vehicle Code, [75 Pa.C.S. § 1547,] which are also known as the implied consent warnings.” Vora
v. Dep’t of Transp., Bureau of Driver Licensing, 79 A.3d 743, 745 n.2 (Pa. Cmwlth. 2013).
       2
         75 Pa.C.S. § 1547.
              On November 14, 2016, Licensee was arrested for driving under the
influence of alcohol (DUI).3 The arresting state police officer read Licensee the
implied consent warnings in the Form DL-26. Those portions of the implied consent
warnings which related to the enhanced criminal penalties for not submitting to a
blood test were redacted from the Form DL-26 as a result of the United States
Supreme Court’s ruling in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).4
Licensee refused to submit to the blood test. On November 30, 2016, the Department
notified Licensee that, due to his refusal, his driver’s license would be suspended for
12 months, effective January 4, 2017, pursuant to Section 1547 of the Vehicle Code.
              Licensee appealed from his license suspension to the trial court. On
May 31, 2017, a hearing was held during which the Department and Licensee
stipulated to the facts, and the trial court denied Licensee’s appeal and upheld his
license suspension. Licensee appealed to this Court.5 On July 10, 2017, the trial
court ordered Licensee to file a Statement of Matters6 Complained of on Appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (Rule 1925(b)
Statement). By July 10, 2017 order, Licensee’s Application for Supersedeas Pending
Appeal was granted, and his driver’s license was reinstated pending this appeal.
Licensee filed his Rule 1925(b) Statement with the trial court on July 31, 2017.



       3
          See Section 3802(a)(1) of the Vehicle Code, which provides: “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. §
3802(a)(1).
        4
          This case and the Court’s ruling will be discussed more fully below.
        5
          “Our standard of review in a license suspension case is to determine whether the factual
findings of the trial court are supported by competent evidence and whether the trial court
committed an error of law or an abuse of discretion.” Gammer v. Dep’t of Transp., Bureau of
Driver Licensing, 995 A.2d 380, 383 n.3 (Pa. Cmwlth. 2010).
        6
          Former Rule 1925(b) read a statement of “matters” complained of on appeal. Whereas, the
current Rule 1925(b) refers to a statement of “errors” complained of on appeal.
                                                2
                 Licensee argues that the trial court erred in dismissing his appeal
because Section 1547(b)(2)(ii) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(2)(ii),
specifically requires notification of the DUI enhanced criminal penalties before a
civil license suspension can be imposed for a chemical test refusal. We disagree.
                 As this Court explained in Negovan v. Department of Transportation,
Bureau of Driver Licensing, 172 A.3d 733 (Pa. Cmwlth. 2017):

                 [T]his Court has held that there is no constitutional
                 requirement for a police officer to provide any implied
                 consent warnings to a driver arrested for DUI.
                 Accordingly, the only warnings that must be provided are
                 those mandated by statute, and those required by the
                 Supreme Court in Department of Transportation, Bureau of
                 Traffic Safety v. O’Connell, . . . 555 A.2d 873 ([Pa.]
                 1989).[7]

Negovan, 172 A.3d at 736 (citations omitted). This Court acknowledges that on the
date of Licensee’s arrest, Section 1547(b) of the Vehicle Code provided, in relevant
part:

                 (1) If any person placed under arrest for a violation of
                 [S]ection 3802 [of the Vehicle Code] 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 [D]epartment shall suspend the operating privilege
                 of the person as follows:



        7
            The O’Connell Court held:
                 [W]here an arrestee requests to speak to or call an attorney, or anyone
                 else, when requested to take a breathalyzer test, we insist that in
                 addition to telling an arrestee that his license will be suspended for
                 one year if he refuses to take a breathalyzer test, the police instruct the
                 arrestee that such rights are inapplicable to the breathalyzer test and
                 that the arrestee does not have the right to consult with an attorney or
                 anyone else prior to taking the test.

Id. at 878.


                                                     3
              (i) Except as set forth in subparagraph (ii), for a period of
              12 months.
              ....
              (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 testing,[8]
              upon conviction or plea for violating [S]ection 3802(a)(1)
              [of the Vehicle Code], the person will be subject to the
              penalties provided in [S]ection 3804(c) [of the Vehicle
              Code] (relating to penalties).
              (3) Any person whose operating privilege is suspended
              under the provisions of this section shall have the same
              right of appeal as provided for in cases of suspension for
              other reasons.

75 Pa.C.S. § 1547(b) (emphasis added). Further, this Court recognizes that the Form
DL-26 read to Licensee did not contain the warning specified in Section
1547(b)(2)(ii) of the Vehicle Code. However, as expounded in Negovan:

              [O]n June 23, 2016, the United States Supreme Court
              rendered its decision in Birchfield, wherein, the Court held
              inter alia that a motorist may not be criminally punished for
              refusing to submit to a blood test based on [his] legally-
              implied consent to so submit. Id. The Birchfield Court
              explained that there was a difference between implied
              consent laws that impose civil penalties and evidentiary
              consequences on motorists who refuse to comply, and a
              state insisting upon an intrusive blood test and then
              imposing criminal penalties on a refusal to submit to the
              blood test. Id. Thus, ‘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

       8
         The statute was amended, effective January 20, 2018, to read: “if the person refuses to
submit to chemical breath testing . . . .” 75 Pa.C.S. § 1547(b)(2)(ii) (emphasis added).


                                               4
             2186. Consequently, the enhanced criminal penalties for
             failure to submit to chemical testing are
             unconstitutional.

Negovan, 172 A.3d at 737 (emphasis added). Here, the arresting officer “specifically
and accurately warned Licensee about the consequences of refusing a blood test that
remain following Birchfield, that is, the suspension of his license. Therefore, [the
trial court] did not err when it denied Licensee’s appeal.” Garlick v. Dep’t of
Transp., Bureau of Driver Licensing, ___ A.3d ___, ___ (Pa. Cmwlth. No. 48 C.D.
2017, filed January 3, 2018) slip op. at 13-14 (footnote omitted).
             Licensee next contends that since the enhanced penalties provision is not
severable from Section 1547 of the Vehicle Code, the redaction invalidated the entire
statute. We disagree.
             Section 1925 of the Statutory Construction Act of 1972 (Statutory
Construction Act) provides:

             The provisions of every statute shall be severable. If any
             provision of any statute or the application thereof to any
             person or circumstance is held invalid, the remainder of the
             statute, and the application of such provision to other
             persons or circumstances, shall not be affected thereby,
             unless the court finds that the valid provisions of the statute
             are so essentially and inseparably connected with, and so
             depend upon, the void provision or application, that it
             cannot be presumed the General Assembly would have
             enacted the remaining valid provisions without the void
             one; or unless the court finds that the remaining valid
             provisions, standing alone, are incomplete and are incapable
             of being executed in accordance with the legislative intent.

1 Pa.C.S. § 1925. Here, a review of Section 1547 of the Vehicle Code makes it clear
that “the valid provisions of the statute are [not] so essentially and inseparably
connected with, and [do not] depend upon, the [redacted] provision . . . that it cannot
be presumed the General Assembly would have enacted the remaining valid
provisions without the [redacted] one[,]” or “that the remaining valid provisions,

                                           5
standing alone, are incomplete and are incapable of being executed in accordance
with the legislative intent.” Id.; see also Givens v. Dep’t of Transp., Bureau of Driver
Licensing (Pa. Cmwlth. No. 1203 C.D. 2017, filed March 6, 2018) (rejecting the
argument that Section 1547(b)(2)(ii) of the Vehicle Code is not severable from the
remainder of the statute and upholding the suspension of licensee’s operating
privilege); Spellman v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth.
No. 124 C.D. 2017, filed November 15, 2017) (Section 1547(b)(2)(ii) of the Vehicle
Code, as applied to blood testing, was effectively severed from the rest of the Vehicle
Code).9 This ruling is especially evident here, where, as stated by the trial court,
arresting police officers have read the redacted version of the Form DL-26 warnings
to licensees between the time Birchfield was decided and Section 1547 of the Vehicle
Code was amended, without any apparent confusion or misapplication of the law.
See Reproduced Record at 76. Accordingly, “the remainder of the statute, and the
application of such provision to [Licensee], was not [] affected” by the redaction of
the implied consent enhanced penalties provision. 1 Pa.C.S. § 1925.
              For all of the above reasons, the trial court’s order is affirmed.



                                          ___________________________
                                          ANNE E. COVEY, Judge




       9
         This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a).
                                               6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bradley Graffius,                       :
                         Appellant      :
                                        :
                    v.                  :
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :   No. 880 C.D. 2017
Bureau of Driver Licensing              :


                                     ORDER

            AND NOW, this 20th day of March, 2018, the York County Common
Pleas Court’s May 31, 2017 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
