J-A02037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellant

                        v.

    TERRI RAE GUSTAFSON,

                             Appellee                  No. 807 WDA 2017


                  Appeal from the Order Entered May 10, 2017
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000589-2016


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED APRIL 06, 2018

        The Commonwealth appeals from the order granting the motion to

suppress filed by Appellee, Terri Rae Gustafson.        Because the trial court

adopted a per se approach to the O’Connell warnings,1 we determine the trial

court erred by failing to evaluate the record under a totality of the

circumstances standard.         We therefore reverse the suppression order and

remand.
     Pennsylvania State Trooper Danielle M. Marshall Hoare responded to a

motor vehicle accident where Ms. Gustafson “t-boned” another vehicle.

Arriving at the scene, Trooper Marshall observed that Ms. Gustafson appeared


____________________________________________


1Commonwealth, Department of Transportation, Bureau of Traffic
Safety v. O’Connell, 555 A.2d 873 (Pa. 1989).
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confused and disoriented, and smelled strongly of alcohol. Trooper Marshall

asked Ms. Gustafson to submit to a field sobriety test to which she agreed.

Ms. Gustafson performed two HGN tests, one inside of her car and one outside.

The results of both tests indicated that Ms. Gustafson was intoxicated.

      Ms. Gustafson further agreed to participate in the “walk-and-turn” test.

However, Trooper Marshall, concerned for Ms. Gustafson’s safety, decided

against conducting any further motor skills tests because Ms. Gustafson was

so unsteady on her feet.      Instead, she asked Ms. Gustafson to take a

Preliminary Breath Test (“PBT”). Ms. Gustafson, understanding the purpose

of the test, once again complied.

      At the scene of the accident, Trooper Marshall had a discussion with Ms.

Gustafson about taking her to the hospital to have a blood draw.           Ms.

Gustafson continued to be agreeable and indicated that she was willing to

have a blood draw. Trooper Marshall then handcuffed Ms. Gustafson, placed

her in the police vehicle and transported her to the hospital. During the ride

to the hospital, Ms. Gustafson continued to be cooperative and expressed her

gratitude to Trooper Marshall for treating her so well.

      After arriving at the hospital, Trooper Marshall read Ms. Gustafson the

following O’Connell warnings:

         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 subjected 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

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         if you were convicted of driving with the highest rate of
         alcohol, which include a minimum of 72 consecutive hours
         in jail and a maximum fine $1,000.00, up to a maximum of
         five years in jail and a maximum fine of $10,000.


      Ms. Gustafson then acquiesced to the blood draw, and signed the DL-26

form confirming her consent.

      Ms. Gustafson filed a motion to suppress the blood test results. The trial

court held a hearing, and ultimately granted Ms. Gustafson’s motion and

suppressed the evidence. The Commonwealth filed a timely notice of appeal

and raised the following issue:

      Whether the suppression court erred in finding that [Ms.
      Gustafson’s] consent to the drawing of her blood was not
      voluntary because the trooper read her an invalid warning prior to
      the drawing of blood where [Ms. Gustafson] had already agreed
      to give a preliminary breath sample and consented to the blood
      draw prior to being read said warning.

Commonwealth’s Brief at 3.

      When reviewing suppression rulings, this court’s standard of review is

“limited to determining whether the factual findings are supported by the

record and whether the legal conclusions drawn from those facts are correct.”

Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003).                   We are

constrained to consider only the evidence presented at the suppression

hearing. Commonwealth v. Haines, 168 A.3d 231, 234 (Pa. Super. 2017)

(citing, In re L.J., 79 A.3d 1073, 1085-87 (Pa. 2013). Because Ms. Gustafson

succeeded on her motion to suppress, we must only consider Ms. Gustafson’s

evidence and the Commonwealth’s evidence, to the extent that the


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Commonwealth’s evidence is not contrary to Ms. Gustafson’s evidence “when

read in the context of the record as a whole.” Commonwealth v. Bomar,

826 A.2d 831, 842 (Pa. 2003).

       The United States Supreme Court has held that a state statute may not

criminalize the refusal to submit to a blood test in the absence of a warrant or

applicable exception because, while the Fourth Amendment allows for

warrantless breath tests incident to an arrest for drunk driving, warrantless

blood tests incident to an arrest violate the Fourth Amendment. Birchfield

v. North Dakota, 136 S. Ct. 2160, 2173, 2185 (U.S. 2016). Implied consent

laws are a “condition of the privilege of driving on state roads” which require

motorist to cooperate with blood alcohol testing. Birchfield, 136 S. Ct. at

2186, 2166. Implied consent laws additionally “impose penalties on motorists

who refuse to undergo testing when there is sufficient reason to believe they

are violating the State’s drunk-driving laws.” Id. Although it is permissible

to impose civil and evidentiary penalties on those who refuse blood testing, it

is unconstitutional to criminalize the refusal to consent to a blood test absent

a warrant because one cannot freely consent to a blood test knowing that the

consequence of refusal is a criminal offense.2 Id. at 2185-86.



____________________________________________


2 The United States Supreme Court had issued the Birchfield opinion only
two days prior to the events that lead to the present case. As such, Trooper
Marshall was unaware of the high court’s decision and had no reason to
consider the necessity of a search warrant to obtain a blood draw, or that
paragraph 4 of the DL-26 form was a violation of the Fourth Amendment.

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      In Commonwealth v. Evans, 153 A.3d 323, 331 (Pa. Super. 2016),

this Court applied the Birchfield decision to Pennsylvania’s applicable

statutory scheme, which, at that time, enhanced criminal penalties for a

person convicted of a DUI, if that person had refused to submit to a blood

test. In Evans, we held that the O’Connell warnings violated Birchfield,

and, as such, determined the implied-consent warnings were partially

inaccurate. Id. at 331. We vacated the sentence and remanded to the trial

court to determine whether under the totality of the circumstances approach,

the consent was valid. Id.

      To determine whether an individual validly consented to a chemical test,

the Supreme Court of Pennsylvania has articulated the following standard:

      In determining the validity of a given consent, the Commonwealth
      bears the burden of establishing that a consent is the product of
      an essentially free and unconstrained choice – not the result of
      duress or coercion, express or implied, or a will overborne – under
      the totality of the circumstances. The standard for measuring the
      scope of a person’s consent is based on an objective evaluation of
      what a reasonable person would have understood by the exchange
      between the officer and the person who gave the consent. Such
      evaluation includes an objective examination of the maturity,
      sophistication and mental or emotional state of the defendant.
      Gauging the scope of a defendant’s consent is an inherent and
      necessary part of the process of determining, on the totality of the
      circumstances presented, whether the consent is objectively valid,
      or instead the product of coercion, deceit, or misrepresentation.

Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013).

      The Commonwealth argues that Ms. Gustafson’s consent was voluntary

and occurred long before Trooper Marshall issued the O’Connell warnings.

The   Commonwealth      maintains   that   Ms.   Gustafson   was   continuously

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cooperative and appreciative towards Trooper Marshall, that she submitted to

all of the field sobriety tests and the PBT test the trooper administered, and

that she agreed to a blood draw before being arrested and read the O’Connell

warnings.    Thus, the Commonwealth argues, Ms. Gustafson’s consent was

untainted and valid. The Commonwealth asserts that the suppression court

put “talismanic significance” on the fact that Trooper Marshall read Ms.

Gustafson the O’Connell warnings and that it failed to properly weigh other

facts that indicated her consent was indeed voluntary. Commonwealth Brief

at 8.

        In this case, Ms. Gustafson consented to the warrantless blood draw

both before and after Trooper Marshall informed her that “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 subjected 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.” The trial court found that although Gustafson’s

compliance was without question voluntary, up to the point that the

O’Connell warnings were read, “the Court cannot unreservedly determine

that paragraph four’s inherently coercive language did not contribute to her

ultimate decision to submit to a blood test.” Trial Court Opinion, 05/10/2017,

at 3.


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      Here, we interpret the trial court language as applying a per se rule and

deciding that, the O’Connell warning, in and of itself, when read, invalidated

consent to a blood draw.     This conclusion runs afoul of a “totality of the

circumstances” evaluation. Many of the facts presented here suggest that Ms.

Gustafson’s consent was not coerced but could, nevertheless, have been

involuntary. The scope of Ms. Gustafson’s consent must be examined through

an objective lens to determine how a reasonable person would understand her

situation. Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013).

      In this case, the suppression court’s opinion did not weigh the facts that

were suggestive of valid consent against those facts that did not. Instead, it

found that introducing the O’Connell warnings here automatically invalidated

Ms. Gustafson’s consent. The O’Connell warnings are but one factor under

the totality of the circumstances standard when evaluating the scope of

consent.

      Because the trial court did not employ the totality of the circumstances

standard, we must remand for a determination as to whether under the

totality of the circumstances, Ms. Gustafson’s consent to the blood draw was

voluntary.

      Order vacated, case remanded and jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2018




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