                   IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian Anthony Turner,                           :
                 Appellant                      :
                                                :
                   v.                           : No. 1206 C.D. 2017
                                                : Submitted: January 26, 2018
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing                      :


BEFORE:            HONORABLE MARY HANNAH LEAVITT, President Judge
                   HONORABLE MICHAEL H. WOJCIK, Judge
                   HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                             FILED: May 18, 2018

                   Brian Anthony Turner (Licensee) appeals an order of the Court of
Common Pleas of Northampton County (trial court) dismissing his appeal of a one-
year suspension of his operating privilege pursuant to Section 1547(b)(1)(i) of the
Vehicle Code,1 commonly known as the Implied Consent Law, for refusing a blood
test. Because Licensee was not warned of the enhanced criminal penalties for
refusing a blood test, Licensee argues that his license suspension must be set aside.



1
    It provides:
       (1) If any person placed under arrest for a violation of section 3802[, 75 Pa. C.S.
           §3802,] 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:
               (i) Except as set forth in subparagraph (ii) [(setting forth the
               circumstances leading to an 18-month suspension)], for a period of
               12 months.
75 Pa. C.S. §1547(b)(1)(i).
             On February 21, 2017, the Pennsylvania Department of Transportation,
Bureau of Driver Licensing (PennDOT), notified Licensee that his operating
privilege was suspended for one year, for refusing to submit to a blood test. Licensee
appealed, and a hearing was held before the trial court.
             Pennsylvania State Trooper Michael Hodgskin was the sole witness at
the hearing. He testified that on February 5, 2017, he observed a vehicle stopped on
the shoulder of an interstate highway with its motor running and headlights on.
Licensee was asleep in the driver’s seat. Once awakened, Licensee was asked to
submit to several field sobriety tests, which he attempted but could not complete.
Licensee admitted to consuming alcohol, but he refused to take a portable breath
test. He was placed under arrest for suspicion of driving under the influence of
alcohol (DUI) pursuant to Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802, and
transported to a hospital for a blood test.
             Trooper Hodgskin testified that, at the hospital, he warned Licensee of
the consequences of refusing the blood test pursuant to the Implied Consent Law.
Licensee was not informed that a refusal of a blood test would subject him to
enhanced criminal penalties. Trooper Hodgskin explained to the trial court that there
are now two separate DL-26 forms. One form provides the Implied Consent Law
warnings for refusing a breath test, and the other provides the Implied Consent Law
warnings for refusing a blood test. The blood test form omits any mention of
enhanced criminal penalties for a refusal, which is the warning Trooper Hodgskin
gave to Licensee at the hospital. Licensee refused to submit to the blood test.
             At the conclusion of the evidentiary hearing, Licensee presented legal
argument. He asserted that the suspension of his operating privilege was invalid
because he did not receive a warning that conformed to the mandate of former


                                              2
Section 1547(b)(2)(ii) of the Vehicle Code, which was in effect at the time of
Licensee’s arrest. It stated as follows:

             (2) It shall be the duty of the police officer to inform the person
             that:

                                        ***
                      (ii) if the person refuses to submit to chemical
                      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).

Former 75 Pa. C.S. §1547(b)(2)(ii). Former Section 3804(c) of the Vehicle Code,
also in effect at the time of Licensee’s arrest, provided that an operator convicted of
DUI who “refused testing of blood or breath” would be sentenced as if they had
tested at the “highest blood alcohol” rate, i.e., an alcohol concentration of 0.16% or
higher. Former 75 Pa. C.S. §3804(c).
             In Birchfield v. North Dakota, __ U.S. __, 136 S. Ct. 2160 (2016), the
United States Supreme Court held that criminal penalties cannot be imposed upon a
motorist who refuses a blood test without a search warrant.              In response to
Birchfield, the Pennsylvania Superior Court held that absent a warrant “or exigent
circumstances justifying a search, a defendant who refuses to provide a blood sample
when requested by police is not subject to the enhanced penalties provided [in the
Vehicle Code].” Commonwealth v. Giron, 155 A.3d 635, 640 (Pa. Super. 2017).
Thereafter, the Department created two Implied Consent Law forms: one for breath
tests and another for blood tests. As explained by Trooper Hodgskin, the new form
for blood tests no longer states that a refusal will subject a licensee to enhanced
criminal penalties.


                                              3
               At Licensee’s hearing, PennDOT explained the Birchfield holding and
its revised consent forms. It acknowledged that at the time of Licensee’s arrest,
former Section 1547(b)(2)(ii) of the Vehicle Code was in effect. However, to give
this warning was illogical because Birchfield prohibited enhanced criminal penalties
for refusing a blood test, where a search warrant is not first obtained.2
               The trial court rejected Licensee’s argument that Trooper Hodgskin
was obligated to warn him of the enhanced criminal penalties even though they had
been rendered constitutionally invalid by Birchfield. The trial court concluded that
the mandate in former Section 1547(b)(2)(ii) of the Vehicle Code that a licensee be
warned of enhanced criminal penalties was severable from the remainder of the
Vehicle Code. The trial court denied Licensee’s appeal of his license suspension.
               Licensee appealed to this Court,3 and he raises two issues. First, he
contends that failure to provide the enhanced criminal penalties warning violated
former Section 1547(b)(2)(ii) of the Vehicle Code, rendering his suspension invalid.

2
  Indeed, the General Assembly amended Section 1547(b)(2)(ii) by the act of July 20, 2017, P.L.
333 (effective immediately), to apply solely to breath testing:
        (2) It shall be the duty of the police officer to inform the person that:
                                                   ***
                 (ii) If the person refuses to submit to chemical breath testing, upon
                 conviction or plea for violating 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)(ii). The General Assembly also amended Section 75 Pa. C.S. §3804(c),
by the act of July 20, 2017, P.L. 333 (effective immediately), to apply the highest blood alcohol
rate to individuals refusing testing of breath “or testing of blood pursuant to a valid search
warrant[.]” 75 Pa. C.S. §3804(c).
3
  Our review determines 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). Our
review over questions of law is plenary. Deliman v. Department of Transportation, Bureau of
Driver Licensing, 718 A.2d 388, 389 n.1 (Pa. Cmwlth. 1998).
                                                4
Second, he contends that PennDOT is bound by former Section 1547(b)(2)(ii) of the
Vehicle Code, which is not severable from the remainder of the Vehicle Code.
            Licensee’s two legal claims raised are identical to those raised and
decided by this Court in Garlick v. Department of Transportation, Bureau of Driver
Licensing, 176 A.3d 1030 (Pa. Cmwlth. 2018) (en banc). Therein, we held that
Birchfield rendered the enhanced criminal penalties in former Section 1547(b)(2)(ii)
of the Vehicle Code as applied to blood testing unenforceable and that former
Section 1547(b)(2)(ii) of the Vehicle Code is severable from the remainder of the
statute. We are bound by the holding in Garlick. Accordingly, we hold that the trial
court did not err in denying Licensee’s appeal.
            Accordingly, the order of the trial court is affirmed.


                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                         5
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian Anthony Turner,               :
                 Appellant          :
                                    :
           v.                       : No. 1206 C.D. 2017
                                    :
Commonwealth of Pennsylvania,       :
Department of Transportation,       :
Bureau of Driver Licensing          :


                                ORDER


           AND NOW, this 18th day of May, 2018, the order of the Court of
Common Pleas of Northampton County, dated July 27, 2017, is AFFIRMED.

                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
