J-A11029-17


                                  2017 PA Super 217

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    JOHN LAMONTE ENNELS                        :   No. 1895 MDA 2016

              Appeal from the Suppression Order October 19, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002605-2016


BEFORE:      SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

DISSENTING OPINION BY STEVENS, P.J.E.:                     FILED JULY 11, 2017

       While the United States Supreme Court has made it more difficult as a

practical matter for law enforcement officers to protect the public from

motorists who are operating a vehicle under the influence of alcohol, 1 we do

not have to do so under the specific facts of the case before us.


____________________________________________


*
  Former Justice specially assigned to the Superior Court.
1
  In Birchfield v. North Dakota, ___ U.S. ____, 136 S.Ct. 2160, 195
L.Ed.2d 560 (2016), the United States Supreme Court held that:

       (1) The Fourth Amendment permits warrantless breath tests
       incident to arrests for drunk driving;
       (2) The Fourth Amendment does not permit warrantless blood
       tests incident to arrests for drunk driving; and
       (3) Motorists cannot be deemed to have consented to submit
       to a blood test on pain of committing a criminal offense,
       abrogating State v. Smith, 849 N.W.2d 599.
Id.
J-A11029-17


        Here, there is no question police officers had probable cause to arrest

Appellee Ennels (“Appellee”) for driving under the influence of a controlled

substance, marijuana.2         Appellee was driving a car involved in a traffic

accident and was attempting to flee the scene when officers stopped him.

The “overwhelming smell of marijuana emanating from the vehicle” led to

the arrest of Appellee for DUI.

        Appellee was asked to submit to a blood test and signed the DL-26

Form in the presence of one of the police officers.3 Significantly, as stated

____________________________________________


2
  In the Affidavit of Probable Cause, Officer Marcos Rodriguez stated the
following:

              As I walked up to the driver’s side of the vehicle, the
        driver, later identified as [Appellee], opened up the front door. I
        ordered him to stay inside the vehicle, and as I walked up closer
        I got an overwhelming odor of marijuana coming from the inside
        of the vehicle. I asked [Appellee] if he had been smoking or
        drinking, to which he responded no to both.              I ordered
        [Appellee] out of the vehicle and detained him.
              Due to the smell of marijuana coming from the vehicle,
        myself and OFF. HERNANDEZ conducted a search of the vehicle.
        OFF. HERNANDEZ found a partially smoked blunt of suspected
        marijuana, or a “roach[,]” sitting within the open center console
        of the vehicle. The suspected marijuana blunt was recovered at
        approx. 1940 HOURS.

See Affidavit of Probable Cause, filed 4/1/16, at ¶¶ 2-3.
3
    Among the provisions set forth in the form was the following:

        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
(Footnote Continued Next Page)


                                           -2-
J-A11029-17


by the trial court in its Finding of Facts, Appellee “did not express any

hesitation or concern with the DL-26 warnings.” See Findings of Fact and

Conclusions of Law in Disposition of [Appellee’s] Omnibus Pretrial Motion,

10/19/16, at 3.

      Because I believe that under the totality of the circumstances Appellee

provided valid consent to the warrantless blood test which was not tainted

by an inaccurate warning of the consequences of refusal, I dissent from the

Majority’s conclusion to uphold the granting of Appellee’s motion to suppress

the results of the blood test in this case.

      There is no evidence herein that if Appellee were convicted of DUI his

criminal punishment would be enhanced by failure to sign the Form. In fact,

if he failed to sign the Form he could not be given any greater penalty than if

he signed it, which Appellee did without hesitation. For example, the DL-26

Form revealed that the enhanced criminal penalties one may face for

refusing to submit to a blood test are identical to those he or she faces if
                       _______________________
(Footnote Continued)

      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 $1,000.00, up to a maximum of five years in
      jail and a maximum fine of $10,000.

See DL-26 FORM ¶ 3.



                                            -3-
J-A11029-17


convicted of Section 3804 (c) of the Vehicle Code relating to      “incapacity;

highest blood alcohol; controlled substances.”      Thus, there is no further

penalty where one is convicted of DUI-controlled substance regardless of

whether that individual previously had consented to a blood test.           The

Majority actually recognizes this fact in Footnote 7 of the Majority Opinion.

      In Birchfield, supra, the United States Supreme Court highlighted

the significant government interest in preserving highway safety. Id. at

____, 136 S.Ct. at 2164, 195 L.Ed.2d at ____.         As such, a finding that

Appellee’s consent was voluntary, where he would not have been subject to

harsher criminal penalties were he to have refused to sign the DL-26 Form

and later convicted of a drug-related DUI, is in line with the reasoning and

promotes the spirit of Birchfield. In addition, this conclusion does not run

afoul of this Court’s recent decisions in Commonwealth v. Evans, 153 A.3d

323 (Pa.Super. 2016) and Commonwealth v. Giron, 155 A.3d 635

(Pa.Super. 2017).

      In Evans, the defendant was arrested and charged with DUI highest

rate of alcohol, third offense, and DUI general impairment, third offense. In

finding the Birchfield case to be controlling, the Evans Court stated that:

      with respect to an individual who refuses a blood or breath test
      and who is then convicted of Section 3802(a)(1) (DUI, general
      impairment), 75 Pa.C.S.A. § 3803 also grades the conviction at
      the same level as an individual who violates Section 3802(c),
      which is DUI, highest rate of alcohol. For individuals such as
      Appellant, who have “one or more prior offenses,” 75 Pa.C.S.A. §
      3803(b)(4) grades a conviction for DUI, highest rate of alcohol
      and DUI, general impairment (when coupled with a refusal to

                                     -4-
J-A11029-17


      submit to a blood or breath test) as a misdemeanor of the first
      degree. 75 Pa.C.S.A. § 3803(b)(4). This is a higher grade of
      offense than “[a]n individual who violates section 3802(a)[, DUI,
      general impairment] and has more than one prior offense”—
      which Section 3803(a)(2) grades as a second-degree
      misdemeanor. 75 Pa.C.S.A. § 3803(a)(2).
             Thus, even though Pennsylvania's implied consent law
      does not make the refusal to submit to a blood test a crime in
      and of itself, the law undoubtedly “impose[s] criminal penalties
      on the refusal to submit to such a test.” Birchfield, 136 S.Ct. at
      2185–2186. To be sure, Section 3804(c) provides that an
      “individual who violates section 3802(a)(1)[, DUI, general
      impairment] and refused testing of blood” is punished more
      severely than an individual who commits the stand-alone DUI,
      general impairment offense under Section 3802(a)(1)—and to
      the same extent as an individual who violates Section 3802(c),
      relating to DUI, highest rate of alcohol. 75 Pa.C.S.A. § 3804(c).

Id. at 331.

      Similarly, the Giron Court held that where the defendant who had

been charged with a first offense DUI-general impairment was subjected to

the enhanced criminal penalties provided by Sections 3803 and 3804 for

refusing to provide a blood sample, his sentence was illegal. Id. at 637. In

so finding, the Giron Court summarized the relevant Pennsylvania DUI

statutes as follows:

      Pennsylvania law prescribes a three-tiered DUI statutory
      scheme, which penalizes and punishes drivers with higher levels
      of alcohol in their blood more severely than drivers with
      relatively lower blood alcohol levels. Section 3802(a) prohibits an
      individual from driving a vehicle “after imbibing a sufficient
      amount of alcohol such that the individual is rendered incapable
      of safely driving ... the vehicle” and from driving a vehicle with a
      blood alcohol concentration (“BAC”) of at least 0.08% but less
      than 0.10%. Section 3802(b) prohibits an individual from driving
      a vehicle with a BAC of at least 0.10% but less than 0.16%.
      Section 3802(c) prohibits an individual from driving a vehicle
      with a BAC that is 0.16% or higher. 75 Pa.C.S.A. § 3802.

                                     -5-
J-A11029-17



      Section 3804 sets forth the penalties for individuals who violate
      sections 3802(a), (b), and (c). The penalties are lowest for
      individuals who violate section 3802(a) and are the greatest for
      individuals who violate section 3802(c). However, section 3804
      also sets forth the punishment for individuals who refuse a blood
      or breath test and who are then convicted of DUI-general
      impairment. Specifically, it punishes individuals who refuse the
      test (and are convicted of DUI-general impairment) at the same
      level as those who are convicted of DUI-highest rate of alcohol.

      Finally, with respect to an individual who refuses a blood or
      breath test and who is then convicted of DUI-general
      impairment, section 3803 also grades the conviction at the same
      level as an individual who is convicted of DUI-highest rate of
      alcohol. For individuals such as Appellant, who have “one or
      more prior offenses,” section 3803(b)(4) grades a conviction for
      DUI-highest rate and DUI-general impairment (when coupled
      with a refusal to submit to a chemical test) as a first-degree
      misdemeanor. 75 Pa.C.S.A. § 3803(b)(4). A first-degree
      misdemeanor is punishable by up to five years' imprisonment.
      18 Pa.C.S.A. § 1104. Second offense DUI-general impairment
      which results in an accident causing damage to a vehicle is
      punishable by up to six months' imprisonment. 75 Pa.C.S.A. §
      3803(b)(1). Furthermore, section 3804 provides that an
      individual convicted of second offense DUI-general impairment
      faces a mandatory minimum of five days' imprisonment, 75
      Pa.C.S.A. § 3804(a)(2)(i), while an individual convicted of
      second offense DUI-general impairment with refusal faces a
      mandatory minimum of 90 days' imprisonment. 75 Pa.C.S.A. §
      3804(c)(2)(i).

Id. at 638–39.

      In the instant case, there simply was no threat of enhanced criminal

penalties for Appellee’s refusing to consent to a blood draw pursuant to his

arrest for a drug-related DUI, nor will Appellee, in fact, receive an enhanced

penalty if he ultimately is convicted of driving under the influence of




                                    -6-
J-A11029-17


controlled substances. The police officers acted appropriately and within

constitutional principles.

      As I would find the suppression court improperly applied the law to the

facts herein and its resultant legal conclusions were erroneous, I would

reverse and remand for trial.




                                    -7-
