              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Maye Lee Slone Altieri,                  :
                 Appellant               :
                                         :
            v.                           :
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :   No. 556 C.D. 2018
Bureau of Driver Licensing               :   Submitted: April 9, 2019


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge (P.)
            HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: April 25, 2019

            Maye Lee Slone Altieri (Licensee) appeals from the Luzerne County
Common Pleas Court’s (trial court) March 19, 2018 order denying and dismissing
Licensee’s operating privilege suspension appeal from the Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing
(Department). The sole issue before this Court is whether the trial court erred in
dismissing the appeal in light of the police officer’s reading of the enhanced criminal
penalties portion of the implied consent warnings. After review, we affirm.
            On February 21, 2017, Lehman Township Police Officer Harold Cain
(Officer Cain) stopped Licensee due to her vehicle’s broken tail light. Officer Cain
approached the vehicle and noticed Licensee had bloodshot, glassy eyes and smelt an
odor of alcohol. Licensee admitted she had been drinking. Officer Cain then asked
Licensee to perform field sobriety tests. As a result thereof, Officer Cain placed
Licensee under arrest for driving under the influence of alcohol (DUI).1
              Officer Cain took Licensee to the hospital, where he asked her to take a
blood test. There, Officer Cain read Licensee the implied consent warnings (Form
DL-26).2 Despite the fact that a new form was created in response to the decision in
Birchfield v. North Dakota, ___ U.S.___, 136 S.Ct. 2160 (2016),3 Officer Cain read
the first four paragraphs of the old DL-26 Form to Licensee.
              In pertinent part, the DL-26 Form Officer Cain read to Licensee
contained the following warnings:
              If you refuse to submit to the chemical 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. In addition, if you refuse
              to submit to the chemical test and you are convicted of
              violating Section 3802(a)(1) (relating to impaired
              driving) of the Vehicle Code, then, because of your
              refusal, you will be subject to more severe penalties set
              forth in Section 3804(c) (relating to penalties) of the
              Vehicle Code. These are the same penalties that would be
              imposed if you were convicted of driving with the highest
              rate of alcohol, which include a minimum of 72 consecutive
              hours in jail and a minimum fine of $1,000, up to a
              maximum of five years in jail and a maximum fine of
              $10,000.


       1
          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).
        2
          “The DL-26 Form 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).
        3
          Section 1547 of the Vehicle Code was amended July 20, 2017 to comply with Birchfield,
five months after Licensee’s arrest.


                                              2
Reproduced Record (R.R.) at 25a (emphasis added). Officer Cain and Licensee
signed the form, but Licensee stated that she would not submit to the blood test.
              On March 13, 2017, the Department notified Licensee that her driver’s
license privileges would be suspended for a period of one year, effective May 21,
2018, pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547, due to her
refusal to submit to chemical testing. On April 18, 2018, Licensee appealed from the
suspension to the trial court. A hearing was held and, on March 19, 2018, the trial
court denied and dismissed Licensee’s appeal. Licensee appealed to this Court. 4 On
April 24, 2018, the trial court ordered Licensee to file a Statement of Errors
Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b) (Rule 1925(b) Statement). Licensee filed her Rule 1925(b) Statement with
the trial court on May 8, 2018. The trial court filed its opinion on June 14, 2018.
              Licensee argues that the implied consent warnings that Officer Cain read
to her were partially inaccurate and the inclusion of that legally incorrect warning
made the Birchfield ruling applicable to the matter herein. Therefore, Licensee
contends that she had the right to refuse Officer Cain’s request to submit to a
warrantless search and seizure of her blood. This Court disagrees.
              The licensee in Renfroe v. Department of Transportation, Bureau of
Driver Licensing, 179 A.3d 644, 648 (Pa. Cmwlth. 2018), asserted the same
argument. Specifically, the licensee therein argued: “because the warnings he was
given contained language about enhanced criminal penalties, which was declared
unconstitutional under Birchfield . . . he cannot be punished for refusing to take the
blood test, either civilly or criminally.” Renfroe, 179 A.3d at 650.

       4
        “Our review 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 abused its discretion.”
Renfroe v. Dep’t of Transp., Bureau of Driver Licensing, 179 A.3d 644, 648 n.3 (Pa. Cmwlth.
2018).


                                                 3
The Renfroe Court rejected this argument, explaining:
The Birchfield [C]ourt explicitly limited its holding to
implied consent laws imposing criminal penalties. In so
doing, the Supreme Court observed that the petitioners
in Birchfield did not question the constitutionality of
implied consent laws that impose only civil penalties,
and stated that nothing in its opinion ‘should be read to
cast doubt on them.’ Birchfield, ___ U.S.___ , 136 S.Ct.
at 2185. The Court explained that it is one thing to approve
implied consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to
comply, but quite another for a state to insist upon an
intrusive blood test and then impose criminal penalties on
motorists who refuse to submit. Therefore, ‘[t]here must be
a limit on the consequences to which motorists may be
deemed to have consented by virtue of a decision to drive
on public roads.’ Id. (emphasis added).
Subsequently, in Boseman v. Department of Transportation,
Bureau of Driver Licensing, 157 A.3d 10, 21 (Pa. Cmwlth.),
appeal denied, . . . 170 A.3d 996 ([Pa.] 2017), this Court
held that Birchfield, which prohibits a state from criminally
penalizing a motorist for refusing to submit to a warrantless
request for a blood test, does not apply in a civil license
suspension proceeding. Our holding in Boseman is
grounded upon the settled distinction between a civil license
suspension proceeding and a criminal DUI proceeding
arising out of the same incident. Further, it is not a crime to
refuse to submit to chemical testing under the Implied
Consent Law.
...
[I]n Marchese [v. Commonwealth, 169 A.3d 733, 740 (Pa.
Cmwlth. 2017)] [this Court] explain[ed] as follows:
      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. . . . [W]e believe the U.S. Supreme
      Court clearly indicated nothing in Birchfield
                                4
                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 [s]tate to not only insist upon an intrusive
                blood test, but also to impose criminal penalties on
                the refusal to submit to such a test.’ 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.’
                Given the Birchfield Court’s explicit limitation on
                its holding to implied consent laws imposing
                criminal penalties, we reject [the l]icensee’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. Such an interpretation would be contrary to the
                U.S. Supreme Court’s limiting language in
                Birchfield.
            Marchese, 169 A.3d at 739–40 (emphasis and internal
            quotations omitted). Consistent with our decisions in
            Boseman and Marchese, we conclude that the [common
            pleas] court did not err by holding that Birchfield does
            not apply to civil license suspensions.

Renfroe, 179 A.3d at 650-51 (emphasis added). Accordingly, the trial court properly
denied and dismissed Licensee’s appeal.
            For all of the above reasons, the trial court’s order is affirmed.



                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Maye Lee Slone Altieri,                 :
                 Appellant              :
                                        :
            v.                          :
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :   No. 556 C.D. 2018
Bureau of Driver Licensing              :


                                    ORDER

            AND NOW, this 25th day of April, 2019, the Luzerne County Common
Pleas Court’s March 19, 2018 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
