J-A11029-17


                                  2017 PA Super 217

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

JOHN LAMONTE ENNELS

                            Appellee                   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, J., MOULTON, J., and STEVENS, P.J.E.*

OPINION BY MOULTON, J.:                                  FILED JULY 11, 2017

       The Commonwealth appeals from the October 19, 2016 order entered

by the Berks County Court of Common Pleas granting Appellee John

Lamonte Ennels’ motion to suppress the results of a warrantless blood test. 1

On appeal, the Commonwealth makes two arguments: (1) that the ban on

warrantless blood tests set out in Birchfield v. North Dakota, 136 S.Ct.

2160 (2016), does not apply to those suspected of driving under the

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
        In its notice of appeal, the Commonwealth certified that the trial
court’s order granting Ennels’ motion to suppress terminates or substantially
handicaps the prosecution. See Pa.R.A.P. 311(d) (permitting interlocutory
appeal where Commonwealth certifies with its notice of appeal that order
terminates or substantially handicaps prosecution). Thus, the appeal is
properly before us. See Commonwealth v. Ivy, 146 A.3d 241, 244 n.2
(Pa.Super. 2016).
J-A11029-17



influence (“DUI”) of controlled substances, as opposed to alcohol; and (2)

that, in any event, Ennels’ consent to the test was not tainted by an

inaccurate warning of the consequences of refusal.           Because we disagree

with both contentions, we affirm.

       The trial court set forth the following facts:

            1. On or about Saturday, March 12, 2016, Reading Police
            Officer Marco Rodriguez responded to the 1098 block of
            Penn Street in the City of Reading for a reported vehicle
            accident.

            2. At that time, police were advised via dispatch that one
            of the vehicles involved in the accident was attempting to
            leave the scene.

            3. Officer Contreras[2] initiated a traffic stop on the vehicle
            that was reportedly leaving the scene.

            4. The driver of that vehicle was identified to be . . .
            Ennels.

            5. Officer Rodriguez parked his patrol car in front of
            [Ennels’] vehicle and Officer Contreras’ patrol car was
            parked behind [Ennels’] vehicle.

            6. As per Officer Rodriguez’s testimony, he parked his car
            in front of [Ennels’] car “to prevent the vehicle from
            attempting to leave again.”

            7. At that time, the officer noted the overwhelming smell
            of marijuana emanating from the vehicle.

            8. Officer Rodriguez asked [Ennels] to step out of the
            vehicle.

            9. The vehicle was searched and a partially-smoked blunt
            of what was later determined to be marijuana was found
            inside the vehicle.
____________________________________________


       2
           Officer Contreras’ first name is not in the record.



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J-A11029-17


           10. As a result of the traffic stop, [Ennels] was arrested for
           DUI and transported to St. Joseph’s Medical Center.

           11. [Ennels’] vehicle was towed from the scene of the
           accident because he was taken into custody, officers
           determined that [Ennels’] license was suspended, and
           there were no available drivers to remove the vehicle from
           the scene of the accident.

           12. At approximately 20:27 hours, Officer Rodriguez asked
           [Ennels] to submit to a blood draw and read the
           Pennsylvania Department of Transportation DL-26 form to
           [Ennels].

           13. [Ennels] signed the DL-26 form in the presence of
           Officer Rodriguez.

           14. The DL-26 form was admitted into evidence as
           Commonwealth Exhibit 2.

           15. [Ennels] submitted to chemical blood testing at 20:43
           hours.

           16. At that time, [Ennels] did not express any hesitation or
           concern with the DL-26 warnings.

           17. After [Ennels’] blood was drawn, he was transported
           home by Officer Contreras.

Findings of Fact and Conclusions of Law in Disposition of Defendant’s

Omnibus Pretrial Motion, 10/19/16, at 2-3 (“Suppression Op.”).

       On March 12, 2016, Ennels was charged with DUI (controlled

substance) and DUI (general impairment).3 On August 1, 2016, Ennels filed

a motion to suppress the results of the blood test. On September 2, 2016,

____________________________________________


       3
        75 Pa.C.S. §§ 3802(d)(1) and 3802(a)(1), respectively. Ennels also
was charged with possession of a small amount of marijuana, 35 P.S. § 780-
113(a)(31)(i), driving while operating privilege is suspended or revoked, 75
Pa.C.S. § 1543(b)(1.1)(i), and duty to give information and render aid, 75
Pa.C.S. § 3744(a).



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the trial court conducted a hearing and, on October 19, 2016, it granted the

motion. The Commonwealth filed a timely notice of appeal.

     The Commonwealth raises the following issues on appeal:

        A. Did the trial court err in suppressing evidence of
        [Ennels’] blood test results pursuant to Birchfield v.
        North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195
        L.Ed.2d 560 (2016) in a drug-related DUI prosecution,
        where blood testing is the only available method in
        Pennsylvania to determine whether a suspect is driving
        under the influence of a controlled substance, and thus the
        Pennsylvania    implied    consent    statute   is   wholly
        enforceable?

        B. Did the trial court err in suppressing evidence of
        [Ennels’] blood test results pursuant to Birchfield v.
        North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195
        L.Ed.2d 560 (2016) in a drug-related DUI prosecution,
        where the potential penalties listed on the DL-26 form
        properly reflected the penalties related to drug-related DUI
        convictions, rendering the consent to the blood draw
        voluntary?

Cmwlth’s Br. at 4 (unnecessary capitalization omitted).

     When reviewing the grant of a suppression motion, we must determine

whether the record supports the trial court’s factual findings and “whether

the legal conclusions drawn from those facts are correct.” Commonwealth

v. Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013) (quoting Commonwealth

v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010)).       We may only consider

evidence presented at the suppression hearing. In re L.J., 79 A.3d 1073,

1085-87 (Pa. 2013). In addition, because the defendant prevailed on this

issue before the suppression court, we consider only the defendant’s

evidence and so much of the Commonwealth’s evidence “as remains


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J-A11029-17



uncontradicted when read in the context of the record as a whole.” Brown,

64 A.3d at 1104 (quoting Cauley, 10 A.3d at 325). We may reverse only if

the legal conclusions drawn from the facts are in error. Id.

        The trial court granted Ennels’ motion to suppress the results of the

blood test based on Birchfield.            Noting that (1) Birchfield held that

“implied consent laws that impose criminal penalties on drivers who refuse

to submit to blood tests violate the Fourth Amendment,” Suppression Op.,

Concl. of Law, ¶ 10, (2) the police did not obtain a warrant prior to

administration of the blood test, id. ¶ 11, and (3) the DL-26 form informed

Ennels that he could be subject to enhanced penalties if he refused the test,

id. ¶¶ 13-15, the trial court concluded that Ennels’ “consent was not given

freely, specifically, unequivocally, and voluntarily” and suppressed the

results. Id. ¶ 18.

   I.     Birchfield and Drug-Related DUI Prosecutions

        The   Commonwealth       first    argues     that   Birchfield    has    “limited

applicability to drug-related DUI prosecutions.” Cmwlth’s Br. at 9; see also

id. at 14      (Birchfield    “provides     little   guidance   in   drug-related DUI

prosecutions.”).   Because the Birchfield Court relied on the availability of

warrantless     breath       tests   in     holding     warrantless      blood     tests

unconstitutional, and because breath tests are only useful in determining the

presence and amount of alcohol (but not drugs) in a suspect’s system, the

Commonwealth contends that the constitutional balance must be struck

differently in DUI cases involving controlled substances.                In effect, the

                                          -5-
J-A11029-17



Commonwealth asks this Court to hold that warrantless blood tests are

permissible in drug-related DUI investigations.

       Birchfield involved challenges to the use of both warrantless breath

tests and warrantless blood tests to determine the blood alcohol content

(“BAC”) of an individual arrested for DUI.4 In a set of consolidated cases,

the government parties argued that the administration of the tests was

constitutional under both the search-incident-to-arrest and implied-consent

exceptions to the warrant requirement.5          In assessing those government

arguments, the Court engaged in a familiar balancing analysis, “examin[ing]

the degree to which [the tests] intrude upon an individual’s privacy and . . .

the degree to which they are needed for the promotion of legitimate

governmental interests.”        Birchfield, 136 S.Ct. at 2176 (quoting Riley v.

California, 134 S.Ct 2473, 2484 (2014)) (internal quotation marks and

some internal brackets omitted); see also id. at 2185 n.8 (“[O]ur decision

in Riley calls for a balancing of individual privacy interests and legitimate
____________________________________________


       4
         The Supreme Court did not address the constitutionality of urine
tests in Birchfield. At least one court has found that urine tests are more
akin to a blood test and, therefore, are impermissible as a search incident to
arrest. See Minnesota v. Thompson, 886 N.W.2d 224 (Minn. 2016), cert
denied, 137 S.Ct. 1338 (Mar. 20, 2017). Urine testing is not available to law
enforcement in DUI cases in Pennsylvania. See Act No. 2016-33, S.B. No.
290 (amending 75 Pa.C.S. § 1547 to remove references to urine as an
available chemical test).
       5
       All parties, and the Court, agreed that breath tests and blood tests
are searches covered by the Fourth Amendment. Birchfield, 136 S.Ct. at
2173.



                                           -6-
J-A11029-17



state interests to determine the reasonableness of the category of

warrantless search that is at issue.”).

      First, the Court addressed the impact of each test on an individual’s

privacy interests. As to breath tests, the Court reasoned that: they involve

an “almost negligible” physical intrusion, id. at 2176; “[e]xhalation is a

natural process,” id. at 2177; the tests “are capable of revealing only one bit

of information, the amount of alcohol in the subject’s breath,” id.; and the

tests are unlikely “to cause any great enhancement in the embarrassment

that is inherent in any arrest,” id.      Accordingly, the Court concluded that

“breath test[s] do[] not implicate significant privacy concerns.” Id. at 2178

(internal quotation marks omitted; some alterations in original).

      In contrast, the Court found that blood tests are “significantly more

intrusive.” Id. at 2184; see also id. at 2178. It reasoned that: the tests

“‘require piercing the skin’ and extract[ing] a part of the subject’s body”;

unlike exhaling air, “humans do not continually shed blood”; and a blood

sample may be preserved by the police and contains “information beyond a

simple BAC reading.” Id. at 2178.

      The Court next addressed “the States’ asserted need to obtain BAC

readings for persons arrested for drunk driving,” id., and the relationship

between that need and “[t]he laws at issue in the present cases – which

make it a crime to refuse to submit to a BAC test,” id. at 2179. Noting that

state and federal governments have a “paramount interest . . . in preserving

the safety of . . . public highways,” id. at 2178 (quoting Mackey v.

                                       -7-
J-A11029-17



Montrym, 443 U.S. 1, 17 (1979)) (alterations in original), and that alcohol

continues to be a leading cause of traffic fatalities and injuries, id., the Court

concluded that laws “designed to provide an incentive to cooperate” in DUI

cases “serve a very important function.” Id. at 2179.

      The Court then weighed the intrusion occasioned by each test against

the government’s interest. As to breath tests, it concluded that “the Fourth

Amendment permits warrantless breath tests incident to arrests for drunk

driving” because the “impact of breath tests on privacy is slight, and the

need for BAC testing is great.” Id. at 2184.

      The Court reached the opposite conclusion with respect to warrantless

blood tests. Id. at 2185. In part because the reasonableness of blood tests

“must be judged in light of the availability of the less invasive alternative of

a breath test,” id. at 2184, which “in most cases amply serve[s] law

enforcement interests,” id. at 2185, it concluded that warrantless blood

tests are not permissible as searches incident to arrest.         The Court did

acknowledge that “[o]ne advantage of blood tests is their ability to detect

not just alcohol but also other substances that can impair a driver’s ability to

operate a car safely.” Id. at 2184. The Court nevertheless concluded that

when the police need such information, “[n]othing prevents [them] from

seeking a warrant for a blood test when there is sufficient time to do so . . .

or from relying on the exigent circumstances exception to the warrant




                                      -8-
J-A11029-17



requirement when there is not.” Id. (citing Missouri v. McNeely, 133 S.Ct.

1552, 1568 (2013)).6

       The Court next addressed whether a warrantless blood test is

permissible under the implied-consent exception to the warrant requirement.

The Court noted 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” with BAC

tests, and emphasized that “nothing we say here should be read to cast

doubt on them.” Id. at 2185. It found, however, that it is “another matter .

. . for a State not only to insist upon an intrusive blood test, but also to

impose criminal penalties on the refusal to submit to such a test.”           Id.

(emphasis added).          It explained:       “[t]here must be a limit to the

consequences to which motorists may be deemed to have consented by

virtue of a decision to drive on public roads.”        Id.   The Court, therefore,

concluded that “motorists cannot be deemed to have consented to submit to

a blood test on pain of committing a criminal offense.” Id. at 2186.

       Following Birchfield, this Court has observed that Pennsylvania’s

implied-consent law “impose[s] criminal penalties on the refusal to submit
____________________________________________


       6
         The Court further noted two other shortcomings of breath tests:
they cannot be performed on an unconscious person and they can be
thwarted by an uncooperative suspect. Birchfield, 136 S.Ct. at 2184-85.
Nevertheless, the Court concluded that in such situations the police remain
free to employ the alternative of a blood test after obtaining a warrant. Id.




                                           -9-
J-A11029-17



to” a blood test in contravention of Birchfield. Commonwealth v. Evans,

153 A.3d 323, 331 (Pa.Super. 2016) (quoting Birchfield, 136 S.Ct at 2185-

86).7 In Evans, we remanded a case to re-evaluate a defendant’s consent

where the defendant had agreed to a blood test after being warned of the

now-invalidated increased penalty. Id. In Commonwealth v. Giron, 155

A.3d 635, 640 (Pa.Super. 2017), we vacated a judgment of sentence

because the defendant had been unlawfully subjected to increased penalties

based on his refusal to submit to a blood test. 8 We have not yet confronted

the precise arguments advanced by the Commonwealth in this case.

       The Commonwealth contends that neither Birchfield nor our recent

decisions in Evans and Giron should control here, because Ennels was

charged not with drunk driving but with driving under the influence of a

controlled substance. We disagree. While the Birchfield Court did consider

the availability of the less intrusive breath test in assessing the government

need for warrantless blood tests, the Court’s central focus was on the

____________________________________________


       7
        The Vehicle Code does not create a separate offense for refusal.
Rather, it provides that an individual convicted of DUI (general impairment)
who refused to submit to a blood test shall be subject to the same minimum
sentence and minimum and maximum fines as someone convicted of DUI
(highest rate) and DUI (controlled substances). 75 Pa.C.S § 3804(c).
       8
        The Pennsylvania Commonwealth Court has held that Birchfield did
not affect Pennsylvania’s ability to impose civil license suspension for refusal
to submit to a blood test.        Boseman v. Commonwealth, Dep’t of
Transportation, Bureau of Driver Licensing, 157 A.3d 10, 21 (Pa.
Cmwlth. Ct. 2017).



                                          - 10 -
J-A11029-17



“significantly” more intrusive nature of blood tests.   Moreover, the Court

considered and rejected the argument that warrantless blood tests should be

permissible as searches incident to arrest because they can detect

substances other than alcohol.    Rather, the Court concluded that, in such

situations, the police may obtain a warrant, or, if time does not allow,

pursue     a blood test under    the   exigency exception   to   the   warrant

requirement. Further, the Court upheld the implied-consent exception to the

warrant requirement for blood tests, as long as such consent is based on the

prospect of only civil and evidentiary consequences, and not criminal

penalties.

         We therefore disagree with the Commonwealth that Birchfield is

inapplicable to cases in which a driver has been arrested for a drug-related

DUI.      No matter the substance suspected of affecting a particular DUI

arrestee, Birchfield requires that a blood test be authorized either by a

warrant (or case-specific exigency), or by individual consent not based on

the pain of criminal consequences.

   II.     Ennels’ Consent

         The Commonwealth next contends that, unlike Evans, Ennels’ consent

was voluntary because the DL-26 form read to Ennels accurately reflected

the penalties applicable to drug-related DUI convictions.    In particular, it

argues that because the enhanced criminal penalties for refusal referenced




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J-A11029-17



in the form9 are the same as the penalties for drug-related DUI, Ennels was

not actually threatened with additional punishment for refusal and so his

consent did not run afoul of Birchfield.              This argument is perhaps an

understandable       response     to   Birchfield’s    enormous   impact     on   DUI

investigations, particularly those that pre-dated that decision.           See, e.g.,

David J. Shrager, Birchfield Ruling Disrupts Longstanding DUI Procedures,

18 Lawyers J. 5, at 1 (Allegheny Cty. Bar Ass’n Sept. 2, 2016) (noting

“county prosecutors and police agencies struggle to determine how to

properly prosecute the nearly 50,000 annual DUI arrests”).           Nevertheless,

we find it unpersuasive.

       The DL-26 form read to and signed by Ennels informed him that:

           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)(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

____________________________________________


       9
        The Pennsylvania Department of Transportation has modified the
DL-26 form in light of Birchfield.




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J-A11029-17


            a maximum of five years in jail and a maximum fine
            of $10,000.

Commonwealth’s Br. in Opposition to Defendant’s Motion for Suppression at

Ex. A (emphasis added).10

       The Vehicle Code provides penalties for DUI, including:

            (c) Incapacity; highest blood alcohol; controlled
            substances.--An individual who violates section
            3802(a)(1)[11] and refused testing of blood or breath
            or an individual who violates section 3802(c) or
            (d)[12] shall be sentenced as follows:
____________________________________________


       10
         The DL-26 form contained the warnings provided in Pennsylvania’s
implied-consent law, which states that a person’s license may be suspended
if a person refuses a requested blood test, 75 Pa.C.S § 1547(b), and that a
person faces increased criminal penalties if he or she refuses a blood test
and is later convicted of DUI (general impairment), see id. § 1547(2)(ii); id.
§ 3804(c) (providing sentencing ranges for “[a]n individual who violates
section 3802(a)(1) and refused testing of blood or breath or an individual
who violates section 3802(c) or (d)”).
       11
            Section 3802(a)(1) of the Vehicle Code provides:

            General Impairment. – (1) 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).
       12
            Section 3802(c) of the Vehicle Code provides:

            High rate of alcohol.--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 alcohol concentration in the individual's blood or
            breath is at least 0.10% but less than 0.16% within two
(Footnote Continued Next Page)


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J-A11029-17


          (1) For a first offense, to:

             (i) undergo imprisonment of not less than 72
             consecutive hours;

             (ii) pay a fine of not less than $1,000 nor more than
             $5,000;

             (iii) attend an alcohol highway             safety   school
             approved by the department; and

             (iv) comply with all drug and alcohol treatment
             requirements imposed under sections 3814 and
             3815.

75 Pa.C.S § 3804(c)(1) (emphasis added).

      Accordingly, under section 3804(c) of the Vehicle Code, a person who

is convicted of DUI (general impairment), but who refused a blood test, is

subject to the same penalties as a person convicted of DUI (highest rate of

alcohol) or DUI (controlled substance).             Persons convicted of DUI of a

controlled substance are subject to the same penalties whether or not they

consented to a blood test.
                       _______________________
(Footnote Continued)

          hours after the individual has driven, operated or been in
          actual physical control of the movement of the vehicle.

Id. § 3802(c).

      Section 3802(d) of the Vehicle Code, titled “Controlled substances,”
provides that “[a]n individual may not drive, operate or be in actual physical
control of the movement of a vehicle under any of the following
circumstances.”    Those circumstances include having “any amount” of
certain controlled substances “in the individual’s blood”; id. § 3802(d)(1),
and being “under the influence of a drug or combination of drugs,” or “under
the combined influence of alcohol and a drug or combination of drugs,” “to a
degree which impairs the individual’s ability to safely drive, operate or be in
actual physical control of the movement of the vehicle,” id. § 3802(d)(2)
and (3).



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J-A11029-17



       Our Supreme Court has applied the following standard to determine

whether an individual has validly consented to a chemical test:

            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) (internal citations

and quotation marks omitted).

       Recently,    in   Commonwealth          v.   Evans,   this   Court   addressed

Pennsylvania’s implied-consent law in light of Birchfield.            In Evans, the

appellant consented to a blood draw after a law enforcement officer told him

that refusal could result in enhanced criminal penalties.13 153 A.3d at 325-

26. The trial court denied the appellant’s motion to suppress the blood-test

____________________________________________


       13
         In Evans, the officer advised the defendant of the implied-consent
warnings, which are the same as the warnings contained in the DL-26 form
read to, and signed by, Ennels.




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results and the appellant was convicted of DUI (highest rate of alcohol) and

DUI (general impairment). Id. at 326. This Court vacated the judgment of

sentence and remanded to the trial court for a reevaluation of the

appellant’s consent.      Id. at 331. We reasoned that Evans consented only

after he received a warning that was “partially inaccurate” because the

warning informed him that he would face enhanced criminal penalties for

refusing to do so,14 and such penalties for refusal are unconstitutional under

Birchfield. Id.; see also Giron, 155 A.3d at 639-40.

       Here, Ennels was charged with both DUI (controlled substance) and

DUI (general impairment).         Accordingly, the DL-26 form warned him that,

for at least one of the charges, he faced enhanced criminal penalties if he

refused to submit to the blood test.

       Further, even if the DUI charges related only to controlled substances,

we would conclude that the trial court did not err in finding Evans’ consent

was involuntary.      The DL-26 form read to and signed by Ennels informed

him that he would face enhanced penalties if he refused the blood test. In

particular, it informed him that if he refused, he would face a minimum of 72

hours in jail and a $1,000.00 fine and a maximum of 5 years’ in jail and a

$10,000 fine, based on his refusal. That those happened to be the same
____________________________________________


       14
         The warnings were only “partially inaccurate” because they also
warned the individual that his or her license could be suspended, and implied
consent to a search may be based on such a warning. See Birchfield, 136
S.Ct. at 2185.



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J-A11029-17



penalties for DUI (controlled substance) is irrelevant to the voluntary-

consent analysis. Although the form identified the applicable statutes, it did

not mention the penalties for DUI of a controlled substance, or that the

enhancements applied only to those convicted of DUI of alcohol. Under the

totality of the circumstances, a reasonable person would believe that the

enhanced penalties applied if he refused the chemical test and later was

convicted, regardless of whether he was convicted of an alcohol-related DUI

or a drug-related DUI.     As Birchfield, Evans, and Giron make clear,

implied consent to a blood test cannot lawfully be based on the threat of

such enhanced penalties.

      The dissent would reverse because “there simply was no threat of

enhanced criminal penalties for [Ennels’] refusing to consent to a blood

draw,” Dissenting Op. at 6, and because Ennels will “[not] receive an

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

of controlled substances,” id. at 6-7.   Respectfully, these arguments miss

the point. First, Ennels was charged with both DUI (controlled substances)

and DUI (general impairment).         Were he convicted only of general

impairment after refusing the blood test, then but for Birchfield he would in

fact have faced an enhanced penalty.         75 Pa.C.S § 3804(c)(1).   Second,

even if there had been “no threat” that Ennels would receive an enhanced

penalty for refusal, because the statutory penalty for refusal was the same

as that for DUI (controlled substances), Ennels certainly was threatened

with an enhanced penalty.    And that’s the point.     Birchfield makes plain

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J-A11029-17



that the police may not threaten enhanced punishment for refusing a blood

test in order to obtain consent, 136 S.Ct. at 2186; whether that enhanced

punishment is (or can be) ultimately imposed is irrelevant to the question

whether the consent was valid.

      Accordingly, because Ennels consented to the blood draw after being

informed that he faced enhanced criminal penalties for failure to do so, the

trial court did not err in finding that Ennels’ consent was invalid.

      Order affirmed.

      Judge Shogan joins the Opinion.

      President Judge Emeritus Stevens files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




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