          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dana R. Jackson,                              :
                             Appellant        :
                                              :
               v.                             :   No. 1073 C.D. 2017
                                              :   Submitted: June 6, 2018
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing                    :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION
BY JUDGE SIMPSON                              FILED: JULY 24, 2018

               In this license suspension appeal involving a single suspension from the
refusal of two separate requests for chemical testing, Dana R. Jackson (Licensee)
appeals an order of the Court of Common Pleas of Cumberland County1 (trial court)
that denied his statutory appeal from the Department of Transportation, Bureau of
Driver Licensing’s (Department) suspension of his operating privilege.            The
Department suspended Licensee under 75 Pa. C.S. §1547(b)(1)(ii) based on his
refusal to submit to chemical testing after being arrested for driving under the
influence of alcohol or controlled substance (DUI), a violation of 75 Pa. C.S. §3802.
Licensee contends the trial court erred in denying his appeal because the arresting
officer failed to read the enhanced criminal penalty provisions in 75 Pa. C.S.
§1547(b)(2)(ii) prior to requesting that Licensee submit to a chemical breath test.

      1
          The Honorable Albert H. Masland presided.
Licensee argues his position is consistent with the U.S. Supreme Court’s decision in
Birchfield v. North Dakota, 579 U.S. ___, 136 S.Ct. 2160 (2016). Licensee further
argues the Department failed to establish that the arresting officer read the proper
implied consent warnings for a chemical blood test at the scene of the arrest. Upon
review, we affirm.


                                  I. Background
             On February 25, 2017, Upper Allen Township Police Officer Thomas
J. Dombrowski (Arresting Officer), responding to a dispatch regarding a harassment
complaint lodged against Licensee by his ex-girlfriend, noticed Licensee’s vehicle
parked by the complainant’s residence.       As Arresting Officer approached the
residence, he observed Licensee walking away from the residence. Arresting Officer
spoke to Licensee, who provided him with his photo identification. The officer
noticed that Licensee’s clothing appeared disheveled, and his eyes were bloodshot
and glassy. When Licensee spoke, Arresting Officer smelled a strong odor of
alcohol emanating from his breath.


             Arresting Officer then took Licensee to the complainant’s residence.
While waiting for the complainant to answer the door, the officer observed that
Licensee slurred his speech.     Licensee also showed other common signs of
intoxication. After speaking to the complainant, Arresting Officer and Licensee
walked to the patrol vehicle. The officer confirmed that Cumberland County had an
active bench warrant for him. Arresting Officer placed Licensee under arrest based
on the warrant. The officer also advised Licensee that he was under arrest for public
drunkenness.



                                         2
               Arresting Officer then returned to the residence and confirmed with the
complainant that she observed Licensee driving his vehicle just minutes prior to the
officer’s arrival. The officer located Licensee’s vehicle and touched its hood, which
was still warm. Arresting Officer then checked the vehicle’s registration, confirming
it was Licensee’s vehicle.


               Arresting Officer then returned to his vehicle and asked Licensee to
submit to a blood test for DUI. Licensee did not consent to the blood test. Arresting
Officer next read Licensee the implied consent warnings for chemical testing from
a handheld card he keeps on his person.


               While Arresting Officer read the warnings, Licensee attempted to yell
at the complainant. Licensee also requested to speak with his attorney. When he
finished reading the warnings, Arresting Officer asked Licensee if he would consent
to a blood test. Licensee either said no or asked to speak to his attorney. At that
point, Arresting Officer advised Licensee that if he did not provide an answer, it
would constitute a refusal. Licensee, however, failed to provide an answer.


               After reading Licensee the warnings, Arresting Officer asked Licensee
if he understood them. Licensee replied no. Arresting Officer then paraphrased the
warnings and continued to explain them. Licensee, however, continued to request
an attorney.




                                           3
             Arresting Officer then transported Licensee to the prison booking
center. The officer noticed an Intoxilyzer machine, and he provided Licensee with
an opportunity to consent to a chemical breath test. This time, Arresting Officer read
the warnings directly from a DL-26A (breath test) Form to Licensee. Although
Licensee listened to the warnings, he had some questions and continued to request
an attorney. After a few minutes, Arresting Officer asked Licensee if he would
consent to the breath test. Ultimately, Licensee said no; he also refused to sign the
DL-26A Form. After Licensee’s second refusal, the officer left him in the custody
of the booking agents.


             In March 2017, the Department mailed Licensee a notice of suspension
advising him that his driving privilege would be suspended for a period of 18 months
for a violation of 75 Pa. C.S. §1547(b)(1)(ii) based on his refusal to submit to
chemical testing. Licensee filed a timely statutory appeal of the notice of suspension.


             In July 2017, the trial court held a hearing on Licensee’s appeal. The
Department submitted Licensee’s driving record, which included a certified record
of an earlier 18-month suspension based on a January 2009 misdemeanor one DUI
conviction (highest rate of alcohol - .16+). See Tr. Ct. Hr’g, 7/5/17, Commonwealth
Ex. 1, Document Nos. 1-5. The Department explained that if a licensee’s record
shows a prior DUI or refusal, a subsequent refusal warrants an 18-month suspension.
Tr. Ct. Hr’g, Notes of Testimony (N.T.), 7/5/17, at 5. Licensee did not object to the
admission of these documents. Id. at 6.




                                          4
            The Department also called Arresting Officer as a witness. He testified
regarding the circumstances of Licensee’s arrest. The officer further testified
regarding Licensee’s refusal to submit to a blood test and his subsequent refusal to
submit to a breath test. Following Licensee’s cross-examination of Arresting
Officer, the Department rested.


            Licensee chose not to testify or present any other evidence. However,
Licensee’s counsel made an oral argument regarding Arresting Officer’s failure to
warn Licensee that he could face enhanced penalties if he did not submit to a breath
test. Specifically, Licensee’s counsel argued:

            I don’t believe that this form complies with [75 Pa. C.S.
            §1547]. [Section] 1547 expressly states that an individual
            must be warned that [he] could face the enhanced criminal
            penalties provided in [75 Pa. C.S. §3804(c)] if they [sic]
            refuse to submit to testing. Post Birchfield the form was
            amended for blood tests. There was a DL-26B. This just
            appears to be DL-26A with part of it blanked out. So in
            the blood context, the form wasn’t even read that ignored
            the enhanced penalties. That is not sufficient clearly for
            breath. I don’t think there can be a dispute as to that on
            the breath test. And, again, this was a sole form submitted
            to [the Department] as a basis for the refusal.

                                      ****

                  So, because the sole form is a breath test and it did
            not comply with [75 Pa. C.S. §1547], and Birchfield in no
            way changes the consequences, I believe that the license
            should be reinstated. And, again, even if it is a blood test,
            I don’t believe the [s]tatute can be severed when you are
            essentially adding a provision.

N.T. at 35-36.



                                         5
              Licensee’s counsel also pointed out that the warnings Arresting Officer
read in the field for the blood test were on some type of card. According to
Licensee’s counsel, the Department did not present any testimony or documentary
evidence as to what was included on the card or whether it complied with the Implied
Consent Law, 75 Pa. C.S. §1547(a), (b). See N.T. at 43.


              Following argument, the trial court held that the Department proved
each and every element of its case. To that end, the trial court reasoned: “There was
no question in the mind of the officer, nor is there any question in the mind of the
Court, that [Licensee] was refusing and asking for an attorney and asking a question
does not change that at all.” N.T. at 45. Licensee appeals.2


                                       II. Discussion
                       A. Chemical Test Warnings (Generally)
              Licensee contends the trial court erred in upholding his suspension
because Arresting Officer failed to read him the enhanced criminal penalty language
in 75 Pa. C.S. §1547(b)(2)(ii) prior to requesting a breath test. This provision
requires that the officer notify the licensee that upon conviction or plea for violating
75 Pa. C.S. §3802(a)(1) (DUI), the licensee will be subject to the penalties in 75 Pa.
C.S. §3804(c), prior to requesting that he submit to a chemical breath test. Section
3804(c) provides:



       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 and whether the trial
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); Marchese v. Commonwealth, 169 A.3d 733
(Pa. Cmwlth. 2017), appeal denied, ___ A.3d ___ (Pa., No. 681 MAL 2017, March 12, 2018).


                                              6
                   (c) Incapacity; highest blood alcohol; controlled
             substances.—An individual who violates section
             3802(a)(1) and refused testing of blood or breath or an
             individual who violates … shall be sentenced as follows:

                    (1) For a first offense, to:

                   (i) undergo imprisonment of not less than 72
             consecutive hours;

                   (ii) pay a fine of not less than $1,000 nor more than
             $5,000 ….

75 Pa. C.S. §3804(c)(1) (i), (ii) (emphasis by underline added). The terms of
imprisonment and fines increase for second and third offenses. See 75 Pa. C.S.
§3804(c)(2), (3).


                                B. Blood Test Refusal
             We first address Licensee’s refusal of the request for a chemical blood
test. To sustain a suspension of a licensee’s operating privilege under the Implied
Consent Law, the Department must establish the licensee: (1) was arrested for DUI
by a police officer with reasonable grounds to believe the licensee was operating a
vehicle while under the influence of alcohol or a controlled substance; (2) was
requested to submit to chemical testing; (3) refused to submit to chemical testing;
and (4) was warned by the officer that his license would be suspended if he refused
to submit to chemical testing. Boseman v. Dep’t of Transp., Bureau of Driver
Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017).


             Here, the trial court found Arresting Officer’s testimony credible. N.T.
at 44-45. The officer testified that after encountering Licensee in an intoxicated state



                                            7
near his ex-girlfriend’s residence, he arrested him on an outstanding bench warrant
and on a charge of public drunkenness. Id. at 9-14, 37.


             After securing Licensee in the backseat of his patrol vehicle with
another officer present, Arresting Officer verified that Licensee drove to the scene.
The officer returned to the residence and spoke with Licensee’s ex-girlfriend, who
observed him driving around the area just minutes before the officer arrived. Id. at
14-15. Arresting Officer also checked a vehicle registered to Licensee; he felt the
hood, which was still warm. Id. at 15. The officer also observed a small “shot
bottle” of Rumplemintz, a peppermint liqueur, on the front seat of the vehicle, and
what looked like an alcohol container in the back. Id. at 15-16.


             When Arresting Officer returned to his patrol car, he asked Licensee if
he would consent to a chemical blood test for DUI. Id. at 16. The officer told
Licensee that a witness observed him driving. Id. Licensee became belligerent and
responded that he would not consent to the blood test. Id. at 16-17.


             At that point, Arresting Officer read Licensee the chemical test
warnings from a handheld card. Id. at 17. Arresting Officer testified that the card
has the warnings on the DL-26A (breath test) Form “verbatim.” Id. After he read
the warnings, he again asked Licensee if he would consent to a blood test. Id. at 18.
The officer recalled that Licensee either did not answer him or asked to speak to his
attorney. Id. Arresting Officer then advised Licensee that if he did not answer, his
silence would constitute a refusal. Id. Licensee, however, did not answer. Id.




                                         8
             The warnings Arresting Officer read to Licensee did not include a
warning that refusal to submit to a chemical blood test would result in enhanced
criminal penalties under 75 Pa. C.S. §3804(c). As such, the warnings Arresting
Officer read at the scene of the arrest were legally sufficient under Birchfield for a
blood test. Garlick v. Dep’t of Transp., Bureau of Driver Licensing, 176 A.3d 1030
(Pa. Cmwlth. 2018). Therefore, we discern no error or abuse of discretion in the trial
court’s determination that the Department established its prima facie case for a
suspension of Licensee’s driving privilege based on Licensee’s refusals of the blood
test at the scene of his arrest. Garlick; Boseman.


             Licensee, however, argues the Department failed to establish that
Arresting Officer read the proper warnings for the blood test request because the
Department never entered into evidence the card from which Arresting Officer read.
In addition, Arresting Officer never testified to the language on the card. Therefore,
Licensee maintains there were fatal flaws with the warnings for the blood test.


             We disagree. Arresting Officer testified that the warnings he read from
the card were the warnings in the DL-26A Form “verbatim.” N.T. at 17. Although
the DL-26A Form stated “Use For Breath Test” (Commonwealth Ex. 1, Document
No. 2), Arresting Officer credibly testified that at the scene of the arrest he asked
Licensee to submit to a blood test (N.T. at 16). The DL-26A Form provides (with
emphasis added):

             It is my duty as a police officer to inform you of the
             following:

             1. You are under arrest for [DUI] in violation of [75 Pa.
             C.S. §3802].


                                          9
             2. I am requesting that you submit to a chemical test of
             breath.

             3. If you refuse to submit to the breath test, your operating
             privilege will be suspended for at least 12 months. If you
             previously refused a chemical test or were previously
             convicted of [DUI], 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 speak with an attorney or anyone else after
             being provided these warnings or you remain silent when
             asked to submit to a breath test, you will have refused the
             test.

Commonwealth Ex. 1, Document No. 2.


             Although the DL-26A Form used the word “breath” instead of “blood,”
Arresting Officer credibly testified that he requested a blood test, not a breath test,
at the scene of the arrest. N.T. at 16. Licensee failed to present any evidence or
even allege that Arresting Officer read the word “breath” instead of “blood” when
giving the warnings for the blood test. Given Arresting Officer’s testimony and the
trial court’s credibility findings, we are persuaded that Arresting Officer read the
proper warnings for a request for a chemical blood test under 75 Pa. C.S.
§1547(b)(2). Garlick; Boseman.


                              C. Breath Test Refusal
             Nevertheless, Licensee asserts that unlike a blood test, existing case law
clearly states that a motorist may still face enhanced criminal penalties for refusing
a breath test. Therefore, he argues, the enhanced criminal penalties language in 75


                                          10
Pa. C.S. §1547(b)(2)(ii) remains accurate regarding a refusal to consent to a
chemical breath test. Consequently, Licensee argues that Arresting Officer’s failure
to read the enhanced penalty provision when requesting that Licensee submit to a
breath test rendered his suspension improper.


             However, having determined that Licensee was properly warned of the
consequences of refusal of a blood draw at the time of his arrest, Licensee’s
subsequent, additional refusal of a breath test has no impact on the Department’s
authority to order a single suspension of his driving privilege. Stated differently, the
sufficiency of the warnings preceding Licensee’s subsequent, additional refusal is
irrelevant here, where only one license suspension is involved.


             In Olbrish v. Department of Transportation, Bureau of Driver
Licensing, 619 A.2d 397 (Pa. Cmwlth. 1992) (deemed refusal of breath test,
subsequent deemed refusal of blood draw; occurrences subsequent to initial refusal
“irrelevant”), we stated that a waiver of the first refusal may occur where there is a
chemical test refusal and the police officer then offers a second test, which the
licensee successfully completes. Id. at 399 n.3 (emphasis in original). In Olbrish we
determined that where a licensee refuses chemical testing, any subsequent offers to
submit to chemical testing are at most gratuitous and could be revoked at any time
before the test is administered. Thus, a licensee has no right to have another test
administered after the initial refusal. Olbrish; Geonnotti v. Dep’t of Transp., Bureau
of Driver Licensing, 588 A.2d 1343 (Pa. Cmwlth. 1991) (refusal of breath test,
subsequent additional refusal of breath test, subsequent agreement for breath test,
but test not administered because too much time passed). In short, usually a licensee



                                          11
cannot improve his position by multiple refusals, hoping that sufficient time passes
or that the police will ultimately make a mistake.


             In this case, no waiver of the first refusal occurred, because Licensee
did not successfully complete any testing. Licensee does not argue to the contrary,
nor does he cite any legal authority supporting the proposition that his first refusal
was somehow vitiated. Having rejected Licensee’s arguments regarding his refusal
for a blood test at the time of arrest, we conclude that refusal was sufficient to support
the Department’s single suspension 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,
we affirm. Further, we grant the Department’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.




                                         ROBERT SIMPSON, Judge




                                           12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dana R. Jackson,                        :
                         Appellant      :
                                        :
            v.                          :   No. 1073 C.D. 2017
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing              :


                                     ORDER

            AND NOW, this 24th day of July, 2018, for the reasons stated in the
foregoing opinion, the order of the Court of Common Pleas of Cumberland County
is AFFIRMED. Further, the Department of Transportation, Bureau of Driver
Licensing, is hereby directed to REINSTATE the 18-month suspension of Dana R.
Jackson’s operating privilege under 75 Pa. C.S. §1547(b)(1)(ii) within a reasonable
time.




                                      ROBERT SIMPSON, Judge
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dana R. Jackson,                          :
                              Appellant   :
                                          :
             v.                           :   No. 1073 C.D. 2017
                                          :   Submitted: June 6, 2018
Commonwealth of Pennsylvania,             :
Department of Transportation,             :
Bureau of Driver Licensing                :


BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE ELLEN CEISLER, Judge


CONCURRING OPINION
BY JUDGE BROBSON                          FILED: July 24, 2018


             Although it appears undisputed that the arresting police officer failed
to warn Dana R. Jackson (Licensee) that his refusal to submit to a breath test could
lead to enhanced criminal penalties, the license suspension at issue here stems from
Licensee’s refusal to submit to an earlier blood test. I agree with the majority that
the arresting police officer properly warned Licensee of the consequences of his
refusal to submit to a blood test at the time of his arrest. Accordingly, based on the
issues raised on appeal and my review of the record, I join in the majority’s
disposition of this matter.
             Given the spate of litigation over implied consent warnings spawned by
the United States Supreme Court’s decision in Birchfield v. North Dakota,
136 S. Ct. 2160 (2016), I write separately to comment on this Court’s decision in
Olbrish v. Department of Transportation, Bureau of Driver Licensing, 619 A.2d 397
(Pa. Cmwlth. 1992). In Olbrish, this Court observed that a police officer’s offer of
a follow-up test following a refusal was, at best, gratuitous and could be revoked at
any time prior to the completion of the test. Nonetheless, we cautioned: “[O]ur
holding here is not all encompassing. Where there is a refusal and the police then
gratuitously offer a second test which the licensee successfully completes, a waiver
of the first refusal may occur.” Olbrish, 619 A.2d at 399 n.3 (emphasis in original).
             Here, the arresting officer gratuitously offered a chemical breath test
after Licensee refused to submit to a blood test. Licensee did not consent and thus
did not complete the breath test. That is where the majority’s discussion of Olbrish
ends. I do not, however, read the majority’s opinion as excusing a police officer
who makes a gratuitous offer of alternative testing from providing accurate implied
consent warnings. It seems to me that Olbrish creates some sort of opportunity (if
not a right) for a licensee to remedy his prior refusal by accepting a subsequent offer
for alternative testing and completing the test. The unanswered question is whether
the licensee in that situation is entitled to an accurate warning of the consequences
of refusing the offer. When or if the issue is raised and sufficiently developed, this
or another court may determine that because the offer is gratuitous, no warnings at
all are necessary and, consequently, even an inaccurate warning, such as the case
here, is inconsequential. For now, however, this is an open question.




                                          P. KEVIN BROBSON, Judge


                                       PKB-2
