J. S21034/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
BRIAN EDWIN WEAVER,                       :           No. 1605 WDA 2017
                                          :
                          Appellant       :


            Appeal from the Judgment of Sentence, October 4, 2017,
                in the Court of Common Pleas of Mercer County
               Criminal Division at No. CP-43-CR-0001954-2016


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JUNE 12, 2018

        Brian Edwin Weaver appeals from the October 4, 2017 aggregate

judgment of sentence of 90 days to 1 year of imprisonment, followed by

4 years’ probation, imposed after he was found guilty in a bench trial of

driving under the influence of alcohol or a controlled substance (“DUI”),

DUI – highest rate of alcohol, driving on the right side of the roadway, and

careless driving.1 After careful review, we affirm.

        The trial court summarized the relevant facts of this case as follows:

              On September 12, 2016, Trooper Ronald E. Scott of
              Pennsylvania State Police - Mercer Barracks was in a
              stationary position in a marked patrol car near the
              Draw Bar in Otter Creek Township, Mercer County,
              Pennsylvania.      At approximately 1:30 a.m.,
              Trooper Scott observed [appellant] leaving the
              Draw Bar, began to follow him and activated a

1   75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3301(a) and 3714(a), respectively.
J. S21034/18


              Mobile Video Recorder (MVR).          Trooper Scott
              observed [appellant] weaving within his lane,
              crossing the centerline once, and the fog line twice.
              [Appellant] then turned on to a different road, and
              Trooper Scott observed [appellant] travel a
              substantial portion of the road while straddling the
              middle of the road or driving on the left hand side.
              Due to this, the Trooper pulled [appellant] over.
              [Appellant] was placed under arrest for a DUI and
              was read the revised DL-26 Form dated June 2016.
              [Appellant] was in handcuffs and not free to leave
              when he was asked to submit to the blood draw.
              [Appellant] consented to a blood draw at UPMC
              Hospital in Greenville, Pennsylvania, which yielded a
              result of .211.

Trial court Rule 1925(a) opinion, 12/29/17 at 1-2.2

         Appellant was subsequently charged with DUI and related offenses.

On April 26, 2017, appellant filed an omnibus pre-trial motion to suppress

the evidence obtained from the traffic stop and warrantless blood test. (See

“Omnibus Pre-Trial Motion,” 4/26/17 at ¶¶ 4-10.) On June 7, 2017, the trial

court conducted an evidentiary hearing on appellant’s suppression motion.

Following the hearing, the trial court entered an opinion and order denying

appellant’s suppression motion on June 19, 2017. Appellant waived his right

to a jury trial and proceeded to a bench trial on July 11, 2017. Appellant

was found guilty of the aforementioned offenses following a one-day bench

trial.




2 We note that neither the trial court’s Rule 1925(a) opinion nor its opinion
in support of the June 19, 2017 order denying appellant’s suppression
motion contain pagination; for the ease of our discussion, we have assigned
each page a corresponding number.


                                      -2-
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         As noted, on October 4, 2017, the trial court sentenced appellant to an

aggregate term of 90 days to 1 year of imprisonment, followed by 4 years’

probation. This timely appeal followed. Thereafter, appellant complied with

the trial court’s order directing him to file a concise statement of errors

complained of on appeal, in accordance with Pa.R.A.P. 1925(b).                On

December 29, 2017, the trial court filed its Rule 1925(a) opinion.

         Appellant raises the following issues for our review:

               [1.]   Did the Commonwealth meet its burden of
                      proof that [appellant], while under arrest,
                      consented to the warrantless blood draw?

               [2.]   Does the newly revised DL-26 Form correct the
                      DUI statutory sentencing scheme to conform
                      with Birchfield[3]?

               [3.]   Was there probable cause to stop [appellant’s]
                      vehicle after leaving the bar parking lot and
                      arrest him for [DUI] in his driveway?

Appellant’s brief at 6.     For the ease of our discussion, we have elected to

address appellant’s claims in a different order than presented in his appellate

brief.

         Appellant first argues that the trial court abused its discretion in

denying his suppression motion because Trooper Scott lacked the requisite

probable cause to stop his vehicle.           (Appellant’s brief at 16-18.)   We

disagree.




3Birchfield v. North Dakota,             U.S.     , 136 S.Ct. 2160, 195 L.Ed.2d
560 (2016).


                                        -3-
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      “The issue of what quantum of cause a police officer must possess in

order to conduct a vehicle stop based on a possible violation of the Motor

Vehicle Code [(“MVC”)] is a question of law, over which our scope of review

is plenary and our standard of review is de novo.”      Commonwealth v.

Bush, 166 A.3d 1278, 1281 (Pa.Super. 2017) (citation omitted), appeal

denied, 176 A.3d 855 (Pa. 2017).          “[A]ppellate courts are limited to

reviewing only the evidence presented at the suppression hearing when

examining a ruling on a pre-trial motion to suppress.” Commonwealth v.

Stilo, 138 A.3d 33, 35-36 (Pa.Super. 2016) (citation omitted).      This court

has held that,

            [an appellate court’s] standard of review in
            addressing a challenge to the denial of a suppression
            motion is limited to determining whether the
            suppression court’s factual findings are supported by
            the record and whether the legal conclusions drawn
            from those facts are correct.           Because the
            Commonwealth prevailed before the suppression
            court, we may consider only the evidence of the
            Commonwealth and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole.          Where the
            suppression court’s factual findings are supported by
            the record, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015), appeal

denied, 135 A.3d 584 (Pa. 2016) (citation omitted; brackets in original).




                                    -4-
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      The level of suspicion that a police officer must possess before

initiating a traffic stop is codified in 75 Pa.C.S.A. § 6308(b), which provides

as follows:

              (b)   Authority of police officer.--Whenever a
                    police officer is engaged in a systematic
                    program of checking vehicles or drivers or has
                    reasonable suspicion that a violation of this
                    title is occurring or has occurred, he may stop
                    a vehicle, upon request or signal, for the
                    purpose of checking the vehicle’s registration,
                    proof of financial responsibility, vehicle
                    identification number or engine number or the
                    driver’s license, or to secure such other
                    information as the officer may reasonably
                    believe to be necessary to enforce the
                    provisions of this title.

75 Pa.C.S.A. § 6308(b).

      This court has long recognized that “mere reasonable suspicion will not

justify a vehicle stop when the driver’s detention cannot serve an

investigatory purpose relevant to the suspected violation.” Commonwealth

v. Feczko, 10 A.3d 1285, 1291 (Pa.Super. 2010) (en banc) (citation

omitted), appeal denied, 25 A.3d 327 (Pa. 2011). Rather, police officers

are required to possess probable cause to stop a vehicle based on observed

violation of the MVC or otherwise non-investigable offense. Id.; see also

Commonwealth v. Harris, 176 A.3d 1009, 1019 (Pa.Super. 2017) (stating,

“Pennsylvania law makes clear that a police officer has probable cause to

stop a motor vehicle if the officer observes a traffic code violation, even if it

is a minor offense.” (citation omitted)).



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           Probable cause is made out when the facts and
           circumstances which are within the knowledge of the
           officer at the time of the arrest, and of which he has
           reasonably trustworthy information, are sufficient to
           warrant a man of reasonable caution in the belief
           that the suspect has committed or is committing a
           crime. The question we ask is not whether the
           officer’s belief was correct or more likely true than
           false. Rather, we require only a probability, and not
           a prima facie showing, of criminal activity.        In
           determining whether probable cause exists, we apply
           a totality of the circumstances test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal

quotation marks and citations omitted).      Where an individual’s vehicle is

stopped for a suspected violation of Section 3301,4 as is the case here, a

police officer must possess probable cause because such a stop does not




4 75 Pa.C.S.A. § 3301, Driving on right side of roadway, provides in
relevant part as follows:

           (a)    General rule.--Upon all roadways of sufficient
                  width, a vehicle shall be driven upon the right
                  half of the roadway except as follows:

           ....

                  (2)   When an obstruction exists making
                        it necessary to drive to the left of
                        the   center    of the     roadway,
                        provided the driver yields the right-
                        of-way to all vehicles traveling in
                        the proper direction upon the
                        unobstructed     portion    of    the
                        roadway within such distance as to
                        constitute a hazard.

Id. § 3301(a).


                                     -6-
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serve any investigatory purpose. See Commonwealth v. Enick, 70 A.3d

843, 846 (Pa.Super. 2013), appeal denied, 85 A.3d 482 (Pa. 2014).

        Instantly, the trial court found that Trooper Scott’s testimony at the

suppression hearing established that he possessed the requisite probable

cause     to   stop   appellant’s   vehicle   for   a   suspected   violation   of

Section 3301(a).      (See trial court Rule 1925(a) opinion, 12/29/17 at 4.)

Specifically, Trooper Scott testified that in the early morning hours of

September 12, 2016, he was on stationary patrol when he observed

appellant’s vehicle pull out of the parking lot of the Draw Bar and begin to

travel eastbound on State Route 358. (Notes of testimony, 6/17/17 at 4.)

Trooper Scott testified that he began to follow appellant’s vehicle and

observed it cross the double yellow line once and the white fog line twice.

(Id. at 5.) Trooper Scott further noted that after appellant’s vehicle made a

right turn on Hughey Road, he observed it straddle the middle of the

roadway and/or drive completely on the left-hand side for approximately

one-half mile. (Id.) Based on these observations, Trooper Scott initiated a

traffic stop of appellant’s vehicle. (Id. at 6.) The record further reflects that

this incident was memorialized in a three-minute video taken from an MVR

in Trooper Scott’s patrol car, which was introduced into evidence at the

suppression hearing and viewed by the trial court. (See notes of testimony,

6/7/17 at 6-7; trial court opinion and order, 6/19/17 at 3.)




                                       -7-
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      Appellant contends that Trooper Scott lacked the requisite probable

cause to stop his vehicle for a suspected violation of Section 3301(a)

because the Commonwealth did not establish that Hughey Road was of

“sufficient width.” (Appellant’s brief at 17.) In support of this contention,

appellant cites Commonwealth v. Grover, 42 Pa. D. & C.2d 767 (Quar.

Sess. 1967), wherein the Court of Quarter Sessions of Chester County

quashed an information charging the defendant with failing to drive on the

right side of the roadway on the basis it failed to specify “that the road was

of sufficient width or was a two-way street . . . .” Id. at 768.

      Appellant’s contention is without merit. Unlike in Grover, the criminal

information in the instant matter clearly states that, “[appellant] failed to

drive his vehicle upon the right half of a roadway of sufficient width.”

(Information, 3/3/17 at count 2; certified record at no. 5.)       Moreover, the

testimony presented at the suppression hearing belies appellant’s claim.

Trooper Scott testified that although Hughey Road is essentially a narrow

“country road” and not marked by lines, it is comprised of two-lanes with

traffic traveling north and south. (Notes of testimony, 6/7/17 at 5-6, 11.)

Additionally, appellant testified that he drives on Hughey Road “[a]t least

daily” and acknowledged that he was driving on the left-hand side of the

road rather than the right-hand side on the evening in question to avoid

bumps and potholes.     (Id. at 15, 17.) Based on the foregoing, it is clear




                                     -8-
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that Hughey Road was of a “sufficient width” that appellant was required to

drive his vehicle on the right-hand side, pursuant to Section 3301(a).

      Appellant also argues that Trooper Scott lacked the requisite probable

cause to stop his vehicle because “it [wa]s not improper for him to drive on

or in the opposing lane of travel if such travel can be made in safety and is

done to avoid obstructions in the roadway” like bumps and potholes.

(Appellant’s brief at 17-18; see also notes of testimony, 6/7/17 at 17.)

Appellant’s reliance on Enick, which he alleges stands for the proposition

that a momentary traffic violation may be insufficient to establish probable

cause for a traffic stop, to support his argument, is inapposite.

      Enick involved a police officer who initiated a traffic stop of Enick’s

vehicle after observing her travelling with “half of the vehicle cross[ing] the

double yellow lines into oncoming traffic for 2–3 seconds.” Enick, 70 A.3d

at 844. Enick filed a suppression motion arguing that the vehicle stop was

unlawful, and the trial court denied her motion and convicted her of DUI.

Id. at 845.     On appeal, Enick argued that, “a single breach in the

centerline—a momentary and minor deviation from the norm—is insufficient

to create probable cause in support of the vehicle stop.” Id. at 846 (internal

quotation marks and citation omitted). In concluding that the police officer

had probable cause to stop Enick for violating Section 3301(a) of the MVC,

the Enick court held that “the record plainly indicates that Enick violated”

that section. Id. at 847. The Enick court reasoned that:



                                     -9-
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              half of Enick’s vehicle crossed over the double yellow
              centerline into an oncoming lane of traffic and
              remained there for three seconds. . . .         Enick’s
              driving plainly posed a safety hazard, with half of her
              vehicle protruding into an oncoming lane as [the
              officer’s] vehicle approached from the opposite
              direction.

Id. at 848.

        Similarly, like in Enick, appellant’s violation of Section 3301(a) in the

instant matter was not a momentary or minor violation.                   Rather,

Trooper Scott observed appellant’s vehicle traveling in both the center

and/or on the left-hand side of Hughey Road for a distance of one-half mile,

creating a clear safety hazard.      Accordingly, we conclude the trial court

properly determined that Trooper Scott possessed the requisite probable

cause to stop appellant’s vehicle for a violation of Section 3301(a). Based

on the foregoing, the trial court did not err in denying appellant’s omnibus

pre-trial motion to suppress the evidence seized as a result of the traffic

stop.

        Having concluded Trooper Scott possessed probable cause to stop

appellant’s vehicle, we now turn to appellant’s remaining claims of error.

Specifically, appellant contends that the trial court abused its discretion in

denying his motion to suppress the results of his blood test because the

Commonwealth failed to “meet its burden of proof that [he], while under

arrest, consented to the warrantless blood draw[.]” (Appellant’s brief at 12.)




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     As noted, following appellant’s arrest for DUI on the evening in

question, Trooper Scott read appellant a revised DL-26 form concerning the

chemical test of his blood. (Notes of testimony, 6/7/17 at 7-8.) The revised

DL–26 form, “Chemical Testing Warnings and Report of Refusal to Submit to

a Blood Test as Authorized Section 1547 . . . [,]” or DL-26B, is known as an

implied consent form and informs the arrestee of the penalties to which they

could be subjected if they refuse to consent to a blood draw following a DUI

arrest. See PennDot v. Weaver, 912 A.2d 259, 261 (Pa. 2006). DL-26B

includes the following language:

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

           You are under arrest for driving under the influence
           of alcohol or a controlled substance in violation of
           Section 3802 of the Vehicle Code.

           I’m requesting that you submit to a chemical test of
           blood.

           If you refuse to submit to the blood 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.

           You have no right to speak to an attorney or anyone
           else before you decide whether to submit to testing.
           If you request to speak with an attorney or anyone
           else after being provided these warnings, or if you
           remain silent when asked to submit to a blood test,
           you will have refused the test.

DL-26B form, 9/12/16 (numeration omitted); Commonwealth’s Exhibit 2.

Appellant signed the DL–26B and consented to the blood draw. (Id.)


                                   - 11 -
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     Appellant maintains that his consent to the warrantless blood draw

was invalid because the DL-26B read to him by Trooper Scott contravened

the United States Supreme Court’s decision in Birchfield and was

misleading and deceitful.   (Appellant’s brief at 14-16.)   For the following

reasons, we disagree.

     “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.”        Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal

quotation marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009).

           “A search conducted without a warrant is deemed to
           be unreasonable and therefore constitutionally
           impermissible, unless an established exception
           applies.” Commonwealth v. Strickler, 757 A.2d
           884, 888 (Pa. 2000). “Exceptions to the warrant
           requirement include the consent exception, the plain
           view exception, the inventory search exception, the
           exigent circumstances exception, the automobile
           exception . . . , the stop and frisk exception, and the
           search      incident      to     arrest     exception.”
           Commonwealth v. Dunnavant, 63 A.3d 1252,
           1257 n.3 (Pa.Super. 2013).

           The “administration of a blood test . . . performed by
           an agent of, or at the direction of the government”
           constitutes a search under both the United States
           and Pennsylvania Constitutions. Commonwealth v.
           Kohl, 615 A.2d 308, 315 (Pa. 1992); Schmerber v.
           California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16
           L.Ed.2d 908 (1966). Since the blood test in the case
           at bar was performed without a warrant, the search
           is presumptively unreasonable “and therefore
           constitutionally impermissible, unless an established
           exception applies.” Strickler, 757 A.2d at 888.


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Commonwealth v. Evans, 153 A.3d 323, 327-328 (Pa.Super. 2016). “One

such exception is consent, voluntarily given.” Strickler, 757 A.2d at 888-

889 (citation omitted). Under the Fourth Amendment, where an encounter

between law enforcement is lawful, voluntariness of consent to a search

becomes the exclusive focus. See id.

      Here, our review of the record before us establishes that appellant

voluntarily   consented   to   the   chemical   test   of   his   blood   and   that

Trooper Scott’s recitation of the DL-26B was not misrepresentative or

deceitful nor did it impact appellant’s consent in any way. In reaching this

conclusion, we find our recent decision in Commonwealth v. Smith, 177

A.3d 915 (Pa.Super. 2017), to be particularly instructive. Therein, a panel

of this court discussed the admissibility of a blood test result when consent

was obtained using the revised DL–26 form, post-Birchfield.               As in the

instant matter, appellant was stopped for suspicion of DUI, arrested, and

consented to a blood test following the arresting trooper’s recitation of the

revised DL–26 form. Smith, 177 A.3d at 917. The appellant sought to have

the results of the blood draw suppressed, alleging that the warrantless

seizure of her blood ran afoul of Birchfield and the Pennsylvania and United

States Constitutions. Id. at 918.

      On appeal, the appellant raised virtually identical claims to those

raised by appellant in the instant matter, and the Smith court provided the

following analysis in addressing those claims:


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          In Birchfield, the [United States Supreme] Court
          reviewed a consolidated case in which one of the
          petitioners, Steve Michael Beylund, was arrested for
          DUI and informed that the refusal to submit to blood
          testing constituted a crime itself under North Dakota
          law. Thereafter, petitioner Beylund argued that his
          consent had been coerced by the officer’s warning.
          Relevant to the instant case, the United States
          Supreme Court held that a state may not “insist
          upon an intrusive blood test, but also . . . impose
          criminal penalties upon the refusal to submit to such
          a test.” Birchfield, 136 S.Ct. at 2185. Moreover,
          the High Court emphasized that “motorists cannot be
          deemed to have consented to a blood test upon pain
          of committing a criminal offense.” Id. at 2186. As
          petitioner Beylund had consented to a blood test only
          after police had erroneously informed him that he
          could be criminally penalized if he refused to do so,
          the Birchfield Court remanded for the trial court to
          “reevaluate Beylund’s consent given the partial
          inaccuracy of the officer’s advisory.” Id.

          Nevertheless, the Birchfield Court emphasized that
          its holding did not apply to the imposition of civil
          penalties and evidentiary consequences upon
          motorists suspected of DUI who refused blood
          testing upon their arrest:

               It is well established that a search is
               reasonable when the subject consents,
               and that sometimes consent to a search
               need not be express but may be fairly
               inferred from context. Our 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. Petitioners do not
               question the constitutionality of
               those laws, and nothing we say here
               should be read to cast doubt on
               them.




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          Birchfield, 136 S.Ct. at 2185 (emphasis added)
          (citations omitted).

          Thereafter, this Court decided [Evans], in which the
          appellant had similarly argued that his consent to
          blood testing after his arrest for DUI was coerced as
          he only consented after the police warned him that
          his refusal to submit to blood testing would result in
          harsher penalties upon conviction.      Although the
          Evans court recognized that Pennsylvania’s implied
          consent law did not make refusal to submit to a
          blood test a crime, the panel emphasized that the
          law “undoubtedly impose[s] criminal penalties on the
          refusal to submit to a test.” Evans, 153 A.3d at 331
          (quoting Birchfield, 136 S.Ct. at 2185-[21]86).
          This Court pointed out to the DUI penalty provisions
          set forth in 75 Pa.C.S.A. § 3804:

                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). As
                such, Birchfield controls the case at
                bar.

          Id.

          Since the appellant in Evans had argued that he
          agreed to submit to blood testing only after being
          informed that harsher penalties would apply if he
          refused, this Court held that the officer’s advisory to
          Evans was “partially inaccurate” as Birchfield
          prohibits states from imposing criminal penalties for
          the refusal to submit to blood testing. Evans, 153
          A.3d at 331. As a result, this Court vacated the
          appellant’s sentence and the suppression order and
          remanded with instructions for the trial court to


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           reevaluate the voluntariness of appellant's consent in
           light of this inaccurate warning and the totality of the
           circumstances.

           The instant case is factually distinguishable from
           Birchfield and Evans. To reiterate, the decision in
           Birchfield, which was controlling law at the time of
           Appellant’s arrest, prohibited states from imposing
           criminal penalties upon an individual’s refusal to
           submit to a warrantless blood test. Birchfield, 136
           S.Ct. at 2185. The trial court in this case found
           Birchfield was inapplicable since Appellant was
           never advised that she would be subject to enhanced
           criminal sanctions upon refusal of blood testing. Our
           review of the record confirms this finding; both
           parties agree that Trooper Hogue only informed
           Appellant that her driver’s license would be
           suspended if she refused blood testing. Appellant
           signed a DL–26 form acknowledging that she was
           advised of this particular consequence. This form
           does not contain any reference to enhanced criminal
           penalties. See Commonwealth’s Exhibit 1, DL–26
           form. Thereafter, Appellant agreed to submit to
           blood testing, which revealed a blood alcohol level of
           0.274. We cannot conclude that the trial court erred
           in denying Appellant’s suppression motion that
           vaguely cited to Birchfield.

Commonwealth v. Smith, 177 A.3d 915, 920-922 (Pa.Super. 2017)

(internal citations and emphasis in original; some citations amended;

footnote omitted); see also Commonwealth v. Miller, 2018 WL 2057002

(Pa.Super. 2018).

     Upon review, we find that the rationale set forth in Smith is sound and

compels a similar result in this case. Here, Trooper Scott read appellant the

revised version of the DL-26 form, DL-26B, and properly informed him that

he was subject to the civil penalty of license suspension if he refused to



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consent. Appellant was not informed that he would be subject to additional

imprisonment or any other sort of criminal enhancement.

      Appellant would have this court conclude that his consent to the blood

draw was based on “misrepresentation and deceit” and that the DL-26B was

“tantamount to coercion.” (Appellant’s brief at 16.) According to appellant,

because the General Assembly had not yet amended the statutory provisions

that allowed for enhanced criminal penalties for failure to refuse a blood test

at the time the DL-26B was read to him, and because he had been

previously convicted of DUI and was aware of the enhanced criminal

penalties, he “submitted to the warrantless blood test only on the pain of

potentially enhanced criminal penalties.”     (Id.)5   Appellant’s claims are

meritless.

      As recognized by the trial court, the DL–26B utilized by Trooper Scott

in this matter correctly reflected the law in accordance with Birchfield and

its Pennsylvania progeny and was a correct statement of the law when read

to appellant. (See trial court Rule 1925(a) opinion, 12/29/17 at 3-4.)

Namely, the DL-26B did not warn appellant of any enhanced criminal


5  We note that on July 20, 2017, the General Assembly amended
75 Pa.C.S.A. §§ 1547(b)(2)(ii) and 3804(c) of the MVC, consistent with
Birchfield and its Pennsylvania progeny, to clarify that enhanced criminal
penalties could be imposed only for refusing to submit to “chemical breath
testing,” not blood testing.      See Act of July 20, 2017, P.L. 333.
Concomitantly, since a driver is no longer subject to enhanced criminal
penalties for refusing a blood test, the General Assembly removed from
Section 1547(b)(2)(ii) the obligation of an officer to warn the driver about
that consequence.


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penalties for refusal to consent to a blood test because Birchfield declared

such enhancement unconstitutional. See Smith, 177 A.3d at 921. Rather,

as noted, the DL-26B properly informed appellant only of the civil penalties

to which he would be subject, namely, the suspension of his license, if he

refused the blood draw, and appellant freely consented. (See DL-26B form,

9/12/16; Commonwealth’s Exhibit 2.) Contrary to appellant’s argument, the

fact   that   the   DL-26B    as   read   to   him    did   not   conform     to

Section 1547(b)(2)(ii) as it was then-written, is not fatal.      The effect of

Birchfield and its Pennsylvania progeny was to render the criminal penalties

warned of in the prior version of Section 1547(b)(2)(ii) as applied to blood

testing unenforceable and to sever that section from the rest of the MVC.

See 1 Pa.C.S.A. § 1925 (stating, “the provisions of every statute shall be

severable. If any provision of any statute or the application thereof to any

person or circumstance is held invalid, the remainder of the statute, and the

application of such provision to other persons or circumstances, shall not be

affected thereby . . . .”); Commonwealth v. Batts, 163 A.3d 410, 441 (Pa.

2017) (stating that “[i]f a provision of a statute is invalidated for any reason

. . . , a court must sever it from the remaining, valid portion of the statute”

(citation omitted)).   Accordingly, we discern no abuse of discretion on the




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part of the trial court in denying appellant’s omnibus pre-trial motion to

suppress the results of his blood test.6

      For all the foregoing reasons, we affirm appellant’s October 4, 2017

judgment of sentence.

      Judgment of sentence affirmed.



      Murray, J. joins this Memorandum.

      Olson, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 6/12/2018




6  Appellant also argues, albeit parenthetically, that “his consent to the
warrantless blood draw was invalid since [] he was under arrest and
handcuffed at the time[.]” (Appellant’s brief at 11.) As appellant did not
raise this specific issue in his Rule 1925(b) statement, we deem this issue
waived.     See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in [an
appellant’s    1925(b)]     Statement    ...   are  waived”);   see    also
Commonwealth v. Dozier, 99 A.3d 106, 110 (Pa.Super. 2014), appeal
denied, 104 A.3d 523 (Pa. 2014) (deeming appellant’s issues waived for
failure to present them in his Rule 1925(b) statement).


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