J-S42035-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
JUSTIN DANIEL KUZMA,                      :
                                          :
                 Appellant                :     No. 39 MDA 2018

          Appeal from the Judgment of Sentence December 19, 2017
             in the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0003819-2016

BEFORE:     BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED SEPTEMBER 05, 2018

      Justin Daniel Kuzma (Appellant) appeals from the December 1, 2017

judgment of sentence of 30 days to six months of incarceration following his

nonjury convictions for, inter alia, a second offense of driving under the

influence (DUI) – high rate of alcohol. Specifically, Appellant challenges the

denial of his pre-trial suppression motion, which alleged that the warrantless

blood draw was obtained in violation of Birchfield v. North Dakota, __

U.S. __, 136 S.Ct. 2160 (2016). Upon review, we affirm.

      On September 27, 2016, Trooper Ryan Ivancik conducted a traffic stop

in Carlisle, Cumberland County, for a turn signal violation. When Trooper

Ivancik approached Appellant in his vehicle, he immediately detected the

odor of an alcoholic beverage from the interior of the vehicle.




*Retired Senior Judge assigned to the Superior Court.
J-S42035-18


            Trooper Ivancik requested that [Appellant] provide him
      with his license and vehicle documentation, which [Appellant]
      struggled to do. While conversing with [Appellant], Trooper
      Ivancik noticed that [Appellant] had slurred speech, and glassy,
      bloodshot eyes. [Appellant] told the trooper that he had left the
      Gingerbread Man, where he had consumed two beers. After
      having him perform standard field sobriety tests and take a
      preliminary breath test, Trooper Ivancik arrested [Appellant] and
      transported him to Carlisle Regional Medical Center.

             Upon arrival at the Carlisle Regional Medical Center,
      Trooper Ivancik read the “new” DL-26 [(DL-26B)] form to
      [Appellant]; this new form omits any language regarding
      increased criminal penalties for the refusal to provide a blood
      sample. [Appellant] signed the form and provided a sample of
      his blood, with a result of .132.

Trial Court Opinion, 9/5/2017, at 1-2 (unnecessary capitalization removed).

      Prior to trial, Appellant filed a motion to suppress, claiming that his

consent to the blood draw was not voluntary because, notwithstanding

Birchfield, enhanced criminal penalties still existed at 75 Pa.C.S. § 3804(c),

and Trooper Ivancik violated the mandates of 75 Pa.C.S. § 1547(b)(2)(ii)1

by failing to warn Appellant of subsection 3804(c)’s enhanced criminal

penalties.   Omnibus Pre-Trial Motion, 5/16/2017, at ¶¶ 13-17.      A hearing

was held where the aforementioned facts were developed.        The trial court

denied the motion, finding that the revised DL-26B form complied with the



1 At the time of the traffic stop, this subsection provided that “[i]t shall be
the duty of the police officer to inform the person that… if the person refuses
to submit to chemical testing… the person will be subject to the penalties
provided in [sub]section 3804(c)[.]” 75 Pa.C.S. § 1547(b)(2)(ii) (effective
May 25, 2016 to July 19, 2017).



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mandates of Birchfield, subsection 1547(b)(2) was not implicated, and

Appellant’s consent was voluntary. Trial Court Opinion, 9/5/2017, at 4-5.

      Thereafter, Appellant was convicted following a nonjury trial and

sentenced as indicated above.        Appellant timely filed a notice of appeal.2

Appellant presents two issues for this Court’s consideration: (1) whether the

trial court erred in denying Appellant’s motion to suppress in violation of

Birchfield and 75 Pa.C.S. § 1547(b)(2); and (2) whether the trial court

erred in denying Appellant’s motion to suppress because his consent was not

voluntary. Appellant’s Brief at 6.

      We consider Appellant’s claims mindful of the following.

      Our 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, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.
      Where ... the appeal of the determination of the suppression
      court turns on allegations of legal error, the suppression court’s
      legal conclusions are not binding on an appellate court, whose
      duty it is to determine if the suppression court properly applied
      the law to the facts. Thus, the conclusions of law of the court[]
      below are subject to our plenary review.


2Appellant complied with Pa.R.A.P. 1925(b). The trial court complied with
Pa.R.A.P. 1925(a) by filing an order directing this Court to its September 5,
2017 opinion and order denying Appellant’s motion to suppress.



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Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).

      Appellant first claims that the trial court erred in denying his motion to

suppress because even though Birchfield determined that consent could not

be based on the fear of enhanced criminal penalties for refusing to submit to

a warrantless blood draw, 75 Pa.C.S. § 3804(c) still contained such a

provision at the time of Appellant’s arrest. Therefore, Appellant argues that

Trooper Ivancik was required to notify Appellant of these enhanced criminal

penalties pursuant to 75 Pa.C.S. § 1547(b)(2), and his failure to do so

subjected Appellant to an illegal search. Appellant’s Brief at 17.

      Appellant’s   argument    is   based   on   a   flawed   understanding   of

Pennsylvania’s DUI jurisprudence, and so we begin with an overview of

Birchfield, its effect on our DUI laws, and forms DL-26 and DL-26B as they

relate to the facts of Appellant’s arrest.

            In Birchfield, the Supreme Court of the United States
      held that criminal penalties imposed on individuals who refuse to
      submit to a warrantless blood test violate the Fourth Amendment
      (as incorporated into the Fourteenth Amendment). Within one
      week of that decision, PennDOT revised the DL–26 form to
      remove the warnings mandated by 75 Pa.C.S.[] § 3804 that
      theretofore informed individuals suspected of DUI that they
      would face enhanced criminal penalties if they refused to submit
      to a blood test [in order to comply with Birchfield]. It was this
      revised form, known as Form DL–26B (which did not include
      warnings regarding enhanced criminal penalties), that the
      [trooper] read to Appell[ant].

                                       ***



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      This Court subsequently held that imposing enhanced criminal
      penalties for failure to consent to a blood draw constituted an
      illegal sentence because of Birchfield. [See] Commonwealth
      v. Giron, 155 A.3d 635, 639 (Pa. Super. 2017).

            On July 20, 2017, Governor Thomas W. Wolf signed into
      law Act 30 of 2017 which amended 75 Pa.C.S.[] § 3804 to
      comport with Birchfield. Specifically, Act 30 provides for
      enhanced criminal penalties for individuals who refuse to submit
      to blood tests only when police have obtained a search warrant
      for the suspect’s blood. See 75 Pa.C.S.[] § 3804(c). Hence, from
      July 20, 2017 onwards the DL–26B form conforms to [the
      revised] statutory law. For approximately the previous 13
      months, including at the time[] of Appell[ant’s] arrest[], the DL–
      26B form warnings were consistent with the law as interpreted
      by the Supreme Court of the United States and this Court, but
      inconsistent with the (unconstitutional) provisions of Title 75.

Commonwealth v. Robertson, 186 A.3d 440, 444-45 (Pa. Super. 2018)

(some citations omitted).

      Appellant contends that this inconsistency between the DL-26B form

and the provisions of our DUI statute that were rendered unconstitutional by

Birchfield, but not statutorily amended until Act 30, required suppression of

his blood draw. Specifically, Appellant posits that

      [i]n its denial of the suppression motion, the suppression court
      stated that the DL-26[B] form “eliminated all mention of
      increased criminal penalties as a result of a refusal” and that the
      form is “in compliance with the mandates of Birchfield, as it
      eliminated any mention of increased criminal penalties.” [Trial
      Court Opinion, 9/5/2017,] at 4. This is exactly the issue. The
      DL-26B form eliminated the language required under the law by
      [subsection] 1547(b)(2) of the Motor Vehicle Code.

Appellant’s Brief at 17.    In other words, Appellant argues that because

Trooper Ivancik did not warn Appellant that he would be subjected to



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subsection 3804(c)’s enhanced criminal penalties, which were rendered

unconstitutional by Birchfield, the blood draw violated Birchfield. We find

this argument unsound.

     We recently rejected Appellant’s flawed argument and held that

PennDOT had the authority to amend the DL-26 form to comport with

Birchfield prior to the enactment of Act 30. Robertson, 186 A.3d at 446.

In doing so, we adopted the following well-reasoned analysis of the

Commonwealth Court.

     It is true, as Licensee argues, that the language contained in
     [subs]ection 1547(b)(2)(ii) was mandatory at the time Trooper
     requested that Licensee submit to a blood test. However, while
     [subs]ection 1547(b)(2)(ii) then commanded that a warning
     about enhanced criminal penalties be given, the purpose behind
     that provision is to make a licensee aware of the consequences
     of a refusal to take the test so that he [or she] can make a
     knowing and conscious choice.

     Following Birchfield, and as the Superior Court concluded
     thereafter, a licensee cannot be criminally punished for refusing
     a police officer’s request to test his blood pursuant to the
     Implied Consent Law. Although, at the time Trooper
     requested that Licensee submit to a blood test,
     [subs]ection 1547(b)(2)(ii) still required a warning that a
     licensee would be subject to enhanced criminal penalties
     under [subs]ection 3804(c) for refusing a test of his
     blood, Licensee could not, as a matter of constitutional
     law, be subject to such penalties. Stated simply, enhanced
     criminal penalties were not a consequence of Licensee’s refusing
     the requested blood test. Licensee’s argument is, in effect, that
     because the General Assembly did not immediately amend
     [subs]ection 1547(b)(2)(ii), [Penn]DOT and the police had to
     continue to apply [subs]ection 1547(b)(2)(ii). However, the
     effect of Birchfield and the Superior Court cases that followed
     was to render the criminal penalties warned of in [subs]ection
     1547(b)(2)(ii) as applied to blood testing unenforceable and to


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      effectively sever that section from the rest of the [Motor] Vehicle
      Code. See 1 Pa. C.S.[] § 1925.

Id. at 445-46, quoting Garlick v. Commonwealth, Dep't of Transp.,

Bureau of Driver Licensing, 176 A.3d 1030, 1036 (Pa. Cmwlth. 2018) (en

banc).

      Moreover, “the presumption that an individual is aware of the law

includes not just statutory compilations but also         judicial decisions.”

Robertson, 186 A.3d at 447.         Therefore, on the day that Birchfield

became law, Appellant should have known that the enhanced penalties

codified in subsection 3804(c) were without legal effect, and that the trooper

was not obligated to notify Appellant of this unconstitutional subsection

because it was no longer applicable.     See Commonwealth v. Johnson,

___ A.3d ___, 2018 WL 2295895, at *3 (Pa. Super. filed May 21, 2018).

Accordingly, we reject Appellant’s argument, and find that Appellant’s blood

draw did not violate Birchfield or subsection 1547(b)(2), but rather

complied entirely with the dictates of Birchfield.

      Having determined that Birchfield does not require suppression of

Appellant’s blood draw, we now consider whether Appellant’s consent was

voluntary. In that regard, our Supreme Court has held as follows.

            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


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     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. Evans, 153 A.3d 323, 328 (Pa. Super. 2016), quoting

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

quotations, and corrections omitted).

     While there is no hard and fast list of factors evincing
     voluntariness, some considerations include: 1) the defendant’s
     custodial status; 2) the use of duress or coercive tactics by law
     enforcement personnel; 3) the defendant’s knowledge of his
     right to refuse to consent; 4) the defendant’s education and
     intelligence; 5) the defendant’s belief that no incriminating
     evidence will be found; and 6) the extent and level of the
     defendant’s cooperation with the law enforcement personnel.

Robertson, 186 A.3d at 447 (citations omitted).

     Appellant claims that his consent was “tainted by the direction and

authority” of the trooper.   Appellant’s Brief at 21.   Specifically, he alleges

that he did not have a choice whether or not to consent to the blood draw

because Trooper Ivancik informed him that “[t]he next step is, I’m

transporting you to the Carlisle Regional Medical Center, that’s where I read

you DL-26, which is designed through PennDOT, which is a consent to draw

blood from you.     After we do that, we go from here straight to the

Cumberland County Prison….” Id. (citation to dashcam footage omitted).



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     The trial court addressed Appellant’s argument when it denied his

motion to suppress.

     [Appellant] wishes to further extend the protections of
     Birchfield, and turn our law enforcement officers into lawyers
     who advise defendants that their refusal to submit to a chemical
     test may increase their probability of success on the underlying
     charge. The law does not require such a step. The DL-26 form
     requests consent, and advises defendants of the legal civil
     penalty, i.e., driver’s license suspension, that will result from the
     refusal to provide that consent. No more is required.

            [Appellant] puts special emphasis on the fact that the
     trooper told him that he would be transporting him to the
     hospital to read him the DL-26[B], which ‘is a consent to draw
     blood from you.’ Apparently, [Appellant] believes that the fact
     that the trooper did not specifically say that the form was an
     option to consent renders the entire result inadmissible;
     however, this is inconsistent with Pennsylvania law. The reading
     of the DL-26[B] form ensures voluntariness of consent, by
     ensuring that an arrestee is informed that consent is not
     required. Specifically, the form, as read to [Appellant], states “I
     am requesting that you submit to a chemical test of [blood]. If
     you refuse to submit to the chemical test…..” [Appellant] was
     clearly informed that the chemical test was a ‘request,’ and that
     he could refuse; however, [Appellant] was cooperative with
     giving his blood, as he was cooperative throughout his entire
     interaction with Trooper Ivancik. There is absolutely no evidence
     that his consent was not knowingly, intelligently[,] and
     voluntarily given.

Trial Court Opinion, 9/5/2017, at 4-5 (unnecessary capitalization omitted).

     We agree with the trial court that Appellant misconstrues Trooper

Ivancik’s statement in an attempt to invalidate an otherwise clearly

voluntary consent.    Moreover, we find the totality of the circumstances

reveal that Appellant’s consent was objectively valid.        As in Johnson,

supra, here Trooper Ivancik “had no obligation to enlighten [Appellant] as


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to the full details of federal constitutional law; [Trooper Ivancik] only needed

to tell [Appellant] the current, legal consequences of refusing to consent to

the blood-draw. [He] did. Thus, [Appellant’s] consent was voluntary.” Id.

at *3-4 (citation omitted).

      Accordingly, the trial court properly denied Appellant’s motion to

suppress, and we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/05/2018




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