               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Adam Renfroe, Jr.,                              :
                      Appellant                 :
                                                :
              v.                                : No. 1907 C.D. 2016
                                                : Argued: October 18, 2017
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 PATRICIA A. McCULLOUGH, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                        FILED: February 15, 2018

              Adam Renfroe, Jr., (Licensee) appeals an order of the Court of
Common Pleas of Montgomery County (trial court) denying his license suspension
appeal and reinstating the Department of Transportation’s (Department) one-year
suspension of his operating privilege under Section 1547 of the Vehicle Code
(Implied Consent Law), 75 Pa. C.S. §1547.1 For the following reasons, we affirm.


1
  Section 1547 of the Vehicle Code is commonly referred to as the Implied Consent Law. It states,
in relevant part:
       (b)   Suspension for refusal. –
              (1) If any person placed under arrest for a violation of section 3802
              [relating to driving under the influence of alcohol or controlled
              substance] 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 department shall suspend the operating privilege
              of the person as follows:
               On November 12, 2014, Licensee was arrested for driving under the
influence of alcohol (DUI) pursuant to Section 3802(a)(1) of the Vehicle Code, 75
Pa. C.S. §3802(a)(1).2 On November 28, 2014, the Department notified Licensee
that his operating privilege would be suspended for a period of one year, effective
January 2, 2015. The notice explained that the suspension resulted from his refusal
to submit to chemical testing following the arrest, in violation of the Implied Consent
Law. 75 Pa. C.S. §1547(b). Licensee appealed, contending that “[he] did not refuse
to submit to chemical testing.”           Certified Record (C.R.), Petition for Appeal
(12/23/2014), ¶5. The trial court held a de novo hearing on August 1, 2016.
               The Department presented the testimony of Pennsylvania State Trooper
Derrick Cargill. He testified that on November 12, 2014, while on patrol, he
observed a black Nissan Maxima fail to stop at a red light. Notes of Testimony,
8/1/2016, at 6 (N.T. __). Cargill followed the vehicle as it travelled at a high rate of
speed and crossed over the yellow dividing lines. After stopping the vehicle, Cargill
confronted Licensee, whose breath was marked by “the strong odor of an alcoholic
beverage.” N.T. 8. Licensee stated that he had one drink. Cargill conducted three
field sobriety tests, all of which Licensee failed. Cargill also administered a portable
breath test, which “showed a high presence of alcohol.” N.T. 10.



                      (i) Except as set forth in subparagraph (ii), for a
                      period of 12 months.
75 Pa. C.S. §1547(b)(1)(i).
2
  It states in pertinent part:
         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
             Cargill arrested Licensee for DUI and transported him to Einstein
Hospital for a blood test. Once there, Cargill read the Department’s DL-26 form to
Licensee, which 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) 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 will be imposed if you are
             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 or up to a maximum five years in jail
             and a maximum fine of $10,000.

N.T. 15-18. Licensee confirmed that he understood the consequences and signed
the DL-26 form. Cargill testified that Licensee refused to take the blood test without
giving a reason. Cargill further testified that Licensee did not inform him that he
has a medical condition that prevents him from taking the blood test.
             Licensee testified that after being read the DL-26 form, he told Cargill
that he could not take a blood test because he “[had] a phobia for needles.” N.T. 35.
He offered to “take a urinalysis” or a breathalyzer test, but Cargill insisted upon a

                                          3
blood test. Id. The only test to which Licensee submitted was the portable breath
test at the initial traffic stop.
               Licensee presented the testimony of his physician, Dr. Wayne Gibbons,
who has treated Licensee on several occasions. Dr. Gibbons testified that Licensee
often had a “vasovagal reaction” to having blood drawn, meaning that he felt faint
or broke out in a sweat. N.T. 28-29. On one occasion, Licensee fainted. As a result,
Dr. Gibbons uses alternative methods for laboratory testing.
               Licensee argued that the United States Supreme Court’s decision in
Birchfield v. North Dakota, __U.S.__, 136 S. Ct. 2160 (2016), which was rendered
during the pendency of his license suspension appeal, governs the instant matter.
Under Birchfield, Licensee argued, his refusal to take the blood test “[was] not
improper” because a motorist cannot be deemed to have consented to submit to a
blood test “on pain of committing a criminal offense.” N.T. 41. Here, Licensee
was warned that he could be subject to both civil and criminal penalties if he refused
to take the blood test.
               Crediting Cargill’s version of the event, the trial court denied
Licensee’s appeal. In its opinion filed pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), the trial court explained that the Department satisfied its burden
under Section 1547 of the Vehicle Code in proving that Licensee (1) was arrested
for DUI by a police officer who had reasonable grounds to believe he was under the
influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so;
and (4) was warned that the refusal would result in a license suspension. Once the
Department satisfied its burden, Licensee had to prove that his refusal was not
knowing or conscious or that he was physically unable to take the test. Trial Court
op. at 5 (citing Sitoski v. Department of Transportation, Bureau of Driver Licensing,


                                          4
11 A.3d 12, 18 (Pa. Cmwlth. 2010)). Based on Cargill’s credited testimony, the trial
court found that Licensee refused to take the blood test and did not explain the reason
for his refusal.
               The trial court rejected Licensee’s argument that Birchfield required his
license suspension to be set aside. The trial court explained that Birchfield does not
govern civil license suspensions, noting that the Supreme Court referred approvingly
to state implied consent laws that “impose civil penalties and evidentiary
consequences on motorists who refuse to comply [with chemical testing].” Trial
Court op. at 6 (citing Birchfield, __U.S. at __, 136 S. Ct. at 2185).                  Licensee
appealed to this Court.
               On appeal,3 Licensee presents two issues for our consideration. First,
he argues that the trial court erred in holding that Birchfield does not govern the
instant matter. He contends that Birchfield should be extended to civil license
suspensions because a licensee cannot be punished, either civilly or criminally, for
refusing to submit to a blood test. Second, Licensee argues that the trial court abused
its discretion in finding Cargill’s testimony more credible than that of Licensee.
               We begin with a review of the Implied Consent Law. It is well settled
in Pennsylvania that driving is a privilege, not a property right. Marchese v.
Commonwealth, 169 A.3d 733, 740 (Pa. Cmwlth. 2017) (citing Plowman v.
Department of Transportation, Bureau of Driver Licensing, 635 A.2d 124 (Pa.
1993)). To obtain the benefit of such a privilege, a driver must abide by the laws of




3
  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.
Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1205 (Pa.
1999).
                                                5
the Commonwealth relating to the privilege. Marchese, 169 A.3d at 740. Section
1547(a) of the Vehicle Code provides in relevant part:

             (a) General rule.--Any person who drives, operates or is in
             actual physical control of the movement of a vehicle in this
             Commonwealth shall be deemed to have given consent to one or
             more chemical tests of breath or blood for the purpose of
             determining the alcoholic content of blood or the presence of a
             controlled substance if a police officer has reasonable grounds to
             believe the person to have been driving, operating or in actual
             physical control of the movement of a vehicle:
                    (1) in violation of section 1543(b)(1.1) (relating to
                    driving while operating privilege is suspended or
                    revoked), 3802 (relating to driving under influence
                    of alcohol or controlled substance)….

75 Pa. C.S. §1547(a) (emphasis added). When a licensee refuses to submit to
chemical testing, “the testing shall not be conducted but upon notice by the police
officer, the [D]epartment shall suspend the operating privilege of the person[.]” 75
Pa. C.S. §1547(b)(1).
             Beginning on February 1, 2004, Section 1547(b)(2) of the Vehicle Code
required a police officer to warn a licensee stopped on suspicion of DUI that a refusal
to submit to a blood test would subject the licensee to a suspension of his operating
privilege as well as enhanced criminal penalties. Act of September 30, 2003, P.L.
120.4 Section 1547(b)(2) was again amended in 2004 to address the consequences




4
  When the General Assembly amended Section 1547(b)(2), effective on February 1, 2004, it
provided as follows:
       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

                                           6
of a refusal to submit to chemical testing. See Act of November 29, 2004, P.L. 1369.
Thus, when Licensee was arrested on November 12, 2014, Section 1547(b)(2)
provided as follows:

               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 (ii) if the person refuses
               to submit to chemical testing, upon conviction or plea for
               violating section 3802(a)(1) [of the Vehicle Code], the person
               will be subject to the penalties provided in section 3804(c) [of
               the Vehicle Code] (relating to penalties).

75 Pa. C.S. §1547(b)(2) (former provision).5
               On June 23, 2016, approximately five weeks before Licensee’s license
suspension hearing, the United States Supreme Court issued its decision in
Birchfield, ___ U.S. ___, 136 S. Ct. 2160. There, petitioners challenged North
Dakota and Minnesota laws that imposed a criminal penalty on motorists suspected
of DUI who refused to submit to a breath or blood test required under the states’
implied consent laws. The motorists argued that a search warrant is needed before
police can conduct either a breath test or a blood test. The Supreme Court held that
a warrant is not required for a breath test because the need for testing a motorist’s


       (ii) upon conviction, plea or adjudication of delinquency for violating Section
       3802(a) [of the Vehicle Code], the person will be subject to the penalties provided
       in section 3804(c) (relating to penalties).
Act of September 30, 2003, P.L. 120.
5
 Section 1547(b)(2) of the Vehicle Code now reads:
       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 breath testing, upon conviction or plea for
       violating section 3802(a)(1), the person will be subject to the penalties provided in
       section 3804(c) (relating to penalties).
75 Pa. C.S. §1547(b)(2) (emphasis added).
                                                 7
level of intoxication outweighs the comparatively slight impact on the motorist’s
privacy interest in providing a breath sample. Id. at 2184. Because a blood test is
“significantly more intrusive,” the Supreme Court held that police cannot demand a
blood test without first obtaining a search warrant. Id.
             The Supreme Court rejected the government’s argument that every
motorist has legally consented to a blood test under the state’s implied consent
statute. The Court observed, nevertheless, that its “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.” Id. at
2185.    It also observed that petitioners in Birchfield did not question the
constitutionality of implied consent laws, and nothing in its opinion “should be read
to cast doubt on them.” Id. However, the Court held that a state could not impose
criminal penalties on a motorist for refusing to submit to a blood test because “[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. In short, “motorists
cannot be deemed to have consented to submit to a blood test on pain of committing
a criminal offense.” Id. at 2186.
             Our Superior Court considered the scope of Birchfield in
Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016). In that case, the arresting
officer warned the driver that he would be subject to enhanced criminal penalties if
he refused to consent to a blood test, and the driver consented. At his subsequent
criminal trial on DUI charges, the driver moved to suppress the results of the blood
test. The trial court denied the motion to suppress. The driver appealed, arguing
that his consent to the warrantless request for a blood test was involuntary. The
Superior Court vacated the trial court’s order. It held that the warning contained in


                                           8
the former version of Section 1547(b)(2)(ii) of the Vehicle Code (Act of November
29, 2004, P.L. 1369) was “partially inaccurate” and, consequently, the results of the
blood test had to be suppressed and the enhanced sentence for refusing the blood test
vacated. Evans, 153 A.3d at 331. See also Commonwealth v. Giron, 155 A.3d 635,
640 (Pa. Super. 2017) (holding that defendant could not be subject to enhanced
criminal penalties for refusing officer’s request for blood test under Implied Consent
Law).
             With that background, we turn to Licensee’s first issue. He contends
that because the warnings he was given contained language about enhanced criminal
penalties, which was declared unconstitutional under Birchfield and Evans, he
cannot be punished for refusing to take the blood test, either civilly or criminally.
Licensee argues that “it is impossible [that] one must consent for civil purposes but
cannot for criminal purposes.” Licensee Brief at 13. Licensee describes the problem
as a “Hobson’s choice,” i.e., yield to a directive “that is so coercive as to be
constitutionally infirm” or lose his license. Id. at 6. By failing to consider such an
“inherent dilemma,” Licensee argues, the trial court erred by holding that Birchfield
does not apply to civil license suspension cases. Id. at 7.
             Preliminarily, we observe that the basis for Licensee’s license
suspension appeal to the trial court was that “[he] did not refuse to submit to
chemical testing.” C.R., Petition for Appeal (12/23/2014), ¶5. Licensee testified
that he could not take the blood test because he had a “phobia for needles.” N.T. 35-
36. In support, he presented the testimony of his physician, who confirmed that
Licensee often felt faint or broke out in a sweat when he had blood drawn. N.T. 28-
29. The factual record does not indicate that Licensee was forced to choose between
asserting his Fourth Amendment right and maintaining his operating privilege.


                                          9
Nevertheless, because Licensee raised Birchfield at his hearing before the trial court,
we consider it here.
              Licensee contends that Birchfield must be extended to civil license
suspension cases. We disagree. The Birchfield court 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. at ___, 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.
             Licensee argues that the trial court erred by relying on the Supreme
Court’s statement in Birchfield approving of the general concept of implied consent


                                          10
laws that impose civil penalties and evidentiary consequences on motorists who
refuse to submit to a blood test. Licensee asserts that this language was obiter dicta.
We rejected a similar argument in Marchese, explaining 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.
               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.”
               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
               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. 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 trial
court did not err by holding that Birchfield does not apply to civil license
suspensions.
               In his second issue, Licensee argues that the trial court abused its
discretion in finding that Officer Cargill’s testimony was more credible than that of
Licensee. He maintains that the trial court “provided no basis for its finding and in
so doing, completely ignored the testimony of Dr. Gibbons.” Licensee Brief at 16.


                                            11
Because the trial court failed to explain its credibility determination, Licensee
argues, its decision was not based upon “competent evidence.” Id. at 17.
             As factfinder, the trial court is required to observe witnesses and their
demeanor in order to make credibility determinations. Pollock v. Department of
Transportation, Bureau of Driver Licensing, 634 A.2d 852, 855 (Pa. Cmwlth. 1993).
The resolution of questions of evidentiary weight and conflicts in the testimony is
solely in the province of the trial court. Hasson v. Department of Transportation,
Bureau of Driver Licensing, 866 A.2d 1181, 1186 (Pa. Cmwlth. 2005). This Court
explained in Mooney v. Department of Transportation, Bureau of Driver Licensing,
654 A.2d 47 (Pa. Cmwlth. 1994), that

             [a]s long as sufficient evidence exists in the record which is
             adequate to support the finding found by the trial court, as
             factfinder, [an appellate court is] precluded from overturning that
             finding and must affirm, thereby paying the proper deference due
             to the factfinder who heard the witnesses testify and was in the
             sole position to observe the demeanor of the witnesses and assess
             their credibility.

Id. at 50 (emphasis added) (quoting Department of Transportation, Bureau of Traffic
Safety v. O’Connell, 555 A.2d 873, 875 (Pa. 1989)).
             Here, it was undisputed that Licensee was arrested for DUI; was asked
to submit to a blood test; and was read the warnings on the Form DL-26 by Officer
Cargill, which included a warning that Licensee’s refusal would result in the
suspension of his driver’s license. Cargill testified that Licensee refused to take the
blood test without explaining the reason for his refusal. The trial court credited
Cargill’s testimony and rejected as not credible Licensee’s conflicting testimony that
he told Cargill he had a “phobia for needles.” There is no reason for this Court to
disturb the trial court’s credibility determination because the trial court was “in the

                                          12
sole position to observe the demeanor of the witnesses and assess their credibility.”
Mooney, 654 A.2d at 50. Licensee’s argument is an improper attempt to assert his
preferred version of the facts.
             Because we discern no error in the trial court’s denial of Licensee’s
statutory license suspension appeal, we affirm the trial court’s order.

                                    ______________________________________
                                    MARY HANNAH LEAVITT, President Judge

Judge Brobson and Judge McCullough concur in the result only.




                                         13
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Adam Renfroe, Jr.,                    :
                     Appellant        :
                                      :
            v.                        : No. 1907 C.D. 2016
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing            :


                                 ORDER

            AND NOW, this 15th day of February, 2018, it is hereby ORDERED
that the order of the Court of Common Pleas of Montgomery County, dated August
1, 2016, in the above-captioned matter is AFFIRMED.

                                 ______________________________________
                                 MARY HANNAH LEAVITT, President Judge
