J-A16019-16


                                  2016 PA Super 293

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                              Appellee

                       v.

DAVID EUGENE EVANS

                              Appellant                       No. 1196 WDA 2015


              Appeal from the Judgment of Sentence July 14, 2015
                In the Court of Common Pleas of Greene County
              Criminal Division at No(s): CP-30-CR-0000387-2013


BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.

OPINION BY OLSON, J.:                                   FILED DECEMBER 20, 2016

        Appellant, David Eugene Evans, appeals from the judgment of

sentence entered on July 14, 2015.              We vacate Appellant’s judgment of

sentence,     vacate    the    suppression     order,   and    remand   the   case   for

proceedings consistent with this opinion.

        Appellant was arrested on May 19, 2012 and the Commonwealth later

charged him with a variety of crimes, including driving under the influence of

alcohol (“DUI”), highest rate of alcohol, third offense, and DUI general

impairment, third offense.1

        On January 9, 2014, Appellant filed a motion to suppress the blood

that was taken from him at the hospital and the results of the blood alcohol
____________________________________________


1
    75 Pa.C.S.A. § 3802(c) and (a)(1), respectively.




*Retired Senior Judge assigned to the Superior Court.
J-A16019-16



test.   Within Appellant’s suppression motion, Appellant claimed that, after

his arrest, the police transported him to the hospital and requested that he

submit to a blood alcohol test.         According to Appellant, he “believed” that

the police provided him with the “implied consent” warnings required by 75

Pa.C.S.A. § 15472 and, in doing so, “informed [Appellant] that if he refused

to give blood, he subjected himself to enhanced criminal penalties[] and a

suspension of his driver’s license.”3 Appellant’s Motion to Suppress, 1/9/14,

at 1.    Appellant declared that, “[a]fter being informed of [the warnings,

Appellant] gave hospital personnel a sample of his blood and subsequent


____________________________________________


2
  75 Pa.C.S.A. § 1547(b)(2) sets forth the implied consent warnings.          The
subsection declares:

         It shall be the duty of the police officer to inform the person
         that:

              (i) the person's operating privilege will be suspended
              upon refusal to submit to chemical testing; and

              (ii) if the person refuses to submit to chemical testing,
              upon conviction or plea for violating section 3802(a)(1)
              [(concerning DUI, general impairment)], the person will
              be subject to the penalties provided in section 3804(c)
              (relating to penalties).

75 Pa.C.S.A. § 1547(b)(2).
3
 During the suppression hearing, Lieutenant John Beckus of the Cumberland
Township Police Department testified that the police, in fact, provided
Appellant with the implied consent warnings set forth in 75 Pa.C.S.A.
§ 1547(b)(2). See N.T. Suppression Hearing, 5/20/14, at 22-23.




                                           -2-
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testing revealed a blood alcohol content above the legal limit.”         Id.   The

police did not obtain a warrant prior to taking Appellant’s blood. Id. at 3.

         Within the suppression motion, Appellant claimed that the police

coerced his consent by “inform[ing him] that if he [did] not submit to

extraction and subsequent testing of his blood, he [would] face[] stiffer

criminal penalties.”      Id.    Therefore, Appellant claimed, his consent was

involuntary and, since the police did not have a warrant, the taking of his

blood constituted an unreasonable search in violation of both the Fourth

Amendment to the United States Constitution and Article I, Section 8 of the

Pennsylvania Constitution.        Id.    Appellant claimed that the results of the

blood test must be suppressed as the product of the unreasonable search.

Id.

        On May 20, 2014, the trial court held a hearing on Appellant’s

suppression motion and, during the hearing, the Commonwealth presented

the testimony of Lieutenant John Beckus, of the Cumberland Township Police

Department.4 As Lieutenant Beckus testified, he was present on the night of

May 19, 2012 when his fellow-officer, Officer Green,5 arrested Appellant for

DUI. N.T. Suppression Hearing, 5/20/14, at 19. Lieutenant Beckus testified


____________________________________________


4
 At the time of Appellant’s arrest, Lieutenant Beckus was a patrolman in the
Cumberland Township Police Department. N.T. Suppression, 5/20/14, at 13.
5
    The certified record does not contain Officer Green’s first name.




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that, after Officer Green arrested Appellant, Officer Green placed Appellant

in the back of the patrol car and “advised [Appellant] that he was going to

take him to submit to a chemical test of blood.”              Id. at 21 and 28.

Lieutenant Beckus testified that Appellant “[j]ust kind of shook his head and

said okay.” Id. at 21.

        As Lieutenant Beckus testified, when they arrived at the hospital, the

officers took Appellant to the laboratory and Officer Green advised Appellant

of both the implied consent warnings set forth in 75 Pa.C.S.A. § 1547(b)(2)

and the O’Connell warnings.6 Specifically, Lieutenant Beckus testified that

Officer Green told Appellant:
____________________________________________


6
    We have explained:

          The O'Connell warnings were first announced in
          Commonwealth,      Department      of   Transportation,
          Bureau of Traffic Safety v. O’Connell, 555 A.2d 873
          (1989). In a later opinion, our Supreme Court explained
          both the O'Connell warnings and the reasoning behind the
          warnings:

              in order to guarantee that a motorist makes a knowing
              and conscious decision on whether to submit to testing
              or refuse and accept the consequence of losing his
              driving privileges, the police must advise the motorist
              that in making this decision, he does not have the right
              to speak with counsel, or anyone else, before submitting
              to chemical testing, and further, if the motorist exercises
              his right to remain silent as a basis for refusing to
              submit to testing, it will be considered a refusal and he
              will suffer the loss of his driving privileges[. T]he duty of
              the officer to provide the O'Connell warnings as
              described herein is triggered by the officer's request that
              the motorist submit to chemical sobriety testing,
(Footnote Continued Next Page)


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         Please be advised that you are under arrest for driving
         under the influence of alcohol or controlled substance, in
         violation of § 3802 of the vehicle code.

         [Number two]: I request that you submit to a chemical test
         of . . . the blood. . . .

         [Number three]: It is my duty as a police officer to inform
         you that if you refuse to submit to a chemical test, your
         operating privilege will be suspended for at least 12 months
         and up to 18 months. If you have prior refusals or have
         been previously sentenced to driving under the influence, in
         addition, if you refuse to submit to chemical test and you
         are convicted or plead to violating § 3802(a)(1)[,] related to
         impaired driving under the vehicle code, because of your
         refusal, you will be subject to more severe penalties set
         forth in § 3804(c)[,] relating to penalties, the same as if
         you were – if you would be convicted at the highest rate of
         alcohol, which can include a minimum of 72 consecutive
         hours in jail and a minimum fine of $1,000, to a maximum
         of [five] years in jail and a maximum fine of $10,000.

         It is also my duty as a police officer to inform you that you
         have no right to speak with an attorney or anyone else
         before deciding whether to submit to testing, and any
         request to speak with an attorney or anyone else after
         being provided these warnings, remaining silent when asked
         to submit to chemical testing will constitute a refusal
         resulting in a suspension of your operating privilege and
         other enhanced criminal sanctions if you are convicted of
         violating § 3802(a) of the vehicle code.

                       _______________________
(Footnote Continued)

             whether or not the motorist has first been advised of his
             Miranda rights.

         Commonwealth, Dep’t of Transp., Bureau of Driver
         Licensing v. Scott, 684 A.2d 539, 545 (Pa. 1996).

Commonwealth v. Barr, 79 A.3d 668, 670 n.4 (Pa. Super. 2013).




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N.T. Suppression Hearing, 5/20/14, at 22-23, 24, and 26 (internal

quotations and some internal capitalization omitted).

       Lieutenant Beckus testified that, after Appellant was informed of the

above, Appellant agreed to submit to the requested blood draw. Id. at 24.

The phlebotomist then drew Appellant’s blood and, following testing, it was

revealed that Appellant’s blood alcohol content was 0.18%. Id. at 25.

       Appellant also testified during the suppression hearing. According to

Appellant, although he could not recall much of what occurred on the night

of May 19, 2012, he testified that, following his arrest, he “asked [the police

officer] if [he] was going to jail and [the police officer] was like no, not if you

go take this [blood] test.” Id. at 63.

       The trial court denied Appellant’s motion to suppress on August 4,

2014, reasoning that Appellant “consented to [the] blood draw after being

read his [implied consent w]arnings by the arresting officer.”7        Trial Court

Order, 8/4/14, at 1; Trial Court Opinion, 10/2/15, at 3.              Following a

stipulated bench trial, the trial court found Appellant guilty of DUI, highest

rate of alcohol, third offense and DUI, general impairment, third offense.8,      9


____________________________________________


7
  The trial court also concluded that the warrantless blood draw was not
justified by exigent circumstances. Trial Court Order, 7/31/14, at 1.
8
   During the stipulated bench trial, Appellant and the Commonwealth
stipulated to the fact that Appellant “imbibed a sufficient amount of alcohol
such that the alcohol concentration in his blood was .180 percent . . . within
two hours after [Appellant] had driven.” N.T. Trial, 12/15/14, at 15.




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On June 23, 2015, the trial court sentenced Appellant to serve a term of 12

to 60 months in jail for his DUI, highest rate of alcohol, third offense

conviction and, on July 14, 2015, the trial court amended the sentencing

order to reflect the fine for Appellant’s summary conviction. Appellant filed a

timely notice of appeal and Appellant now raises the following claim to this

Court:10

           Whether the trial court erred in failing to suppress evidence
           of Appellant’s blood alcohol content where his blood was
           taken without a warrant and in the absence of knowing and
           voluntary consent by Appellant?
                       _______________________
(Footnote Continued)
9
  The trial court also found Appellant guilty of the summary offense of
disregarding a traffic lane. 75 Pa.C.S.A. § 3309(1).
10
   The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).      Appellant complied and, within his Rule 1925(b)
statement, Appellant raised the following claim:

           [The trial court] erred in not granting [Appellant’s] motion
           to suppress the results of testing on blood taken from him
           after his arrest for [DUI], where given the warnings the
           police gave [Appellant] prior to his decision to give a sample
           of his blood and all the factors present at the time that
           [Appellant] rendered his decision to give blood, his decision
           was not voluntarily made. [Missouri v. McNeely, ___ U.S.
           ___, 133 S.Ct. 1552 (2013)] makes it clear that the entry
           into the veins of a suspect in custody following an arrest for
           [DUI] is a search protected by the Fourth Amendment for
           which a warrant is required or a recognized exception to the
           requirement that a search warrant be obtained. Voluntary
           consent is a recognized exception. Implied consent is not.

Appellant’s Rule 1925(b) Statement, 8/20/15, at 1.




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Appellant’s Brief at 4.

      “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.”    Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.

Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an

appeal from the denial of a motion to suppress, our Supreme Court has

declared:

           Our standard of review in addressing a challenge to a trial
           court’s denial of a suppression motion is whether the factual
           findings are supported by the record and whether the legal
           conclusions drawn from those facts are correct. When
           reviewing [such a ruling by the] suppression court, we must
           consider only the evidence of the prosecution and so much
           of the evidence of the defense as remains uncontradicted
           when read in the context of the record. . . . Where the
           record supports the findings of the suppression court, we
           are bound by those facts and may reverse only if the legal
           conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (internal

citations omitted). “Moreover, appellate 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); see also In re L.J., 79 A.3d 1073, 1083-1087

(Pa. 2013).

      Appellant claims that the trial court erred when it denied his motion to

suppress the results of his blood alcohol test.     According to Appellant, his



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J-A16019-16



consent to submit to the blood test was involuntary, as it was coerced by

Pennsylvania’s enhanced criminal penalties upon DUI suspects who refuse a

requested blood test and are then convicted of DUI, general impairment.

Appellant’s Brief at 9 and 20. Appellant claims that, since his consent was

involuntary and since the police did not obtain a warrant to draw his blood,

the search was unreasonable under both the Fourth Amendment to the

United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution.11 Id. at 34.

       “The Fourth Amendment to the [United States] Constitution and Article

I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.”             Commonwealth v. McAdoo, 46

A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is

deemed to be unreasonable and therefore constitutionally impermissible,

unless an established exception applies.”          Commonwealth v. Strickler,
____________________________________________


11
   Citing to our opinion in Commonwealth v. Spease, 911 A.2d 952 (Pa.
Super. 2006), the Commonwealth claims that Appellant lacks standing to
challenge “the threat of enhanced penalty.” Commonwealth’s Brief at 19.
The Commonwealth is incorrect, given that Spease was concerned with a
defendant who consented to a blood test and then claimed that her “5 th
Amendment right to remain silent [was] violated because [she was required
to] verbalize [] her assent to a chemical test” – whereas, in the case at bar,
Appellant claims that the warrantless search of his person violated his
Fourth Amendment right to be free from unreasonable searches and
seizures. Moreover, Appellant undoubtedly has standing to claim that his
consent to have blood drawn from his own body for purposes of chemical
testing for alcohol was involuntary, where it was coerced by the threat of
criminal penalty.




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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 (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.

       The trial court held that the warrantless blood draw was justified solely

because Appellant consented to the search.12,         13
                                                            See Trial Court Opinion,
____________________________________________


12
   The trial court explicitly held that the exigent circumstances exception was
inapplicable to this case. Trial Court Order, 7/31/14, at 1. On appeal, the
Commonwealth has not claimed that the search was justified under the
exigent circumstances exception. Commonwealth’s Brief at 1-21; see also
Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552, 1556 and 1568
(2013) (holding that the natural metabolization of alcohol in the bloodstream
does not present a per se exigency and that, “consistent with Fourth
Amendment principles, [] exigency in [drunk-driving cases] must be
determined case by case based on the totality of the circumstances”).




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J-A16019-16



10/2/15, at 1-4. Therefore, the reasonableness of the search in the case at

bar hinges upon whether Appellant’s consent was voluntary.

      The Pennsylvania Supreme Court has held:

         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,

quotations, and corrections omitted).

      On June 23, 2016, the United States Supreme Court decided

Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016). As is

pertinent to the case at bar, in that case, the police arrested Steve Michael


                       _______________________
(Footnote Continued)
13
   We note that the warrantless blood draw was not justified as a search
incident to arrest. Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct.
2160, 2185 (2016) (“we conclude that a breath test, but not a blood test,
may be administered as a search incident to a lawful arrest for drunk
driving”).




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Beylund (hereinafter “Beylund”) for DUI,14 while Beylund was driving in

North Dakota. At the time of his arrest, North Dakota’s “implied consent”

law read, in relevant part, as follows:

         1. Any individual who operates a motor vehicle on a
         highway or on public or private areas to which the public
         has a right of access for vehicular use in this state is
         deemed to have given consent, and shall consent, subject
         to the provisions of this chapter, to a chemical test, or tests,
         of the blood, breath, or urine for the purpose of determining
         the alcohol concentration or presence of other drugs, or
         combination thereof, in the individual's blood, breath, or
         urine. . . .

         2. The test or tests must be administered at the direction of
         a law enforcement officer only after placing the individual . .
         . under arrest and informing that individual that the
         individual is or will be charged with the offense of [DUI]. . .
         .

         3. a. The law enforcement officer shall inform the individual
         charged that North Dakota law requires the individual to
         take the test to determine whether the individual is under
         the influence of alcohol or drugs; that refusal to take the
         test directed by the law enforcement officer is a crime
         punishable in the same manner as driving under the
         influence; and that refusal of the individual to submit to the
         test directed by the law enforcement officer may result in a
         revocation for a minimum of one hundred eighty days and
         up to three years of the individual's driving privileges. . . .

NDCC § 39-20-01.




____________________________________________


14
   The Supreme Court in Birchfield consolidated three separate cases, one
of which was petitioner Beylund’s case.




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      Therefore, under North Dakota law, the refusal to take a requested

blood test constituted a crime in and of itself. See id. (“refusal to take the

test directed by the law enforcement officer is a crime punishable in the

same manner as driving under the influence”). The sentences for a refusal

“range[d] from a mandatory fine of $500 (for first-time offenders) to fines of

at least $2,000 and imprisonment of at least one year and one day (for

serial offenders).” Birchfield, 136 S.Ct. at 2170.

      After Beylund’s arrest, the officer informed him of North Dakota’s

implied consent advisory and that “test refusal in these circumstances is

itself a crime.” Id. at 2172. Beylund then agreed to the requested blood

draw and testing “revealed a blood alcohol concentration of 0.250%, more

than three times the legal limit.” Id.

      Before the state courts, Beylund argued that “his consent to the blood

test was coerced by the officer’s warning that refusing to consent would

itself be a crime.” Id. The state courts rejected Beylund’s argument, with

the North Dakota Supreme Court reasoning that Beylund’s consent was not

coerced because “the State could permissibly compel both blood and breath

tests.”   Id. at 2186. The United States Supreme Court granted Beylund’s

petition for writ of certiorari.

      The Supreme Court explained:

          [Prior Supreme Court] 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 a request for a blood alcohol
          test sample].        Petitioners do not question the

                                    - 13 -
J-A16019-16


        constitutionality of those laws, and nothing we say here
        should be read to cast doubt on them.

        It is another matter, however, 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. There
        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. . . . [W]e conclude that motorists
        cannot be deemed to have consented to submit to a blood
        test on pain of committing a criminal offense.

Id. at 2185-2186.

      The United States Supreme Court then held that the North Dakota

Supreme Court erred in concluding that Beylund’s consent was voluntary, as

the state court’s conclusion rested “on the erroneous assumption that the

State could permissibly compel [] blood . . . tests” by “impos[ing] criminal

penalties on the refusal to submit to such a test.” Id. at 2185 and 2186.

The Supreme Court vacated Beylund’s judgment of sentence and remanded

the case to the state courts, so that the courts could “reevaluate Beylund’s

consent . . . [, based on] the totality of all the circumstances . . . [and]

given the partial inaccuracy of the officer’s advisory.” Id. For the reasons

that follow, we conclude that Birchfield requires a similar result here.

      As noted, Pennsylvania has an implied consent statute, which

provides:

        (a) General rule.--Any person who drives, operates or is in
        actual physical control of the movement of a vehicle in this
        Commonwealth shall be deemed to have given consent to
        one or more chemical tests of breath or blood for the
        purpose of determining the alcoholic content of blood or the
        presence of a controlled substance if a police officer has
        reasonable grounds to believe the person to have been

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J-A16019-16


        driving, operating or in actual physical control of the
        movement of a vehicle:

            (1) in violation of section . . . 3802 (relating to driving
            under influence of alcohol or controlled substance) . . .

                                        ...

        (b) Suspension for refusal.--

            (1) If any person placed under arrest for a violation of
            section 3802 is requested to submit to chemical testing
            and refuses to do so, the testing shall not be conducted
            but upon notice by the police officer, the department
            shall suspend the operating privilege of the person [for a
            period of either 12 or 18 months]. . . .

            (2) It shall be the duty of the police officer to inform the
            person that:

               (i) the person's operating privilege will be suspended
               upon refusal to submit to chemical testing; and

               (ii) if the person refuses to submit to chemical
               testing, upon conviction or plea for violating section
               3802(a)(1) [(concerning DUI, general impairment)],
               the person will be subject to the penalties provided
               in section 3804(c) (relating to penalties).

75 Pa.C.S.A. § 1547.

      Pennsylvania law also prescribes a three-tiered DUI statutory scheme,

which penalizes and punishes drivers with higher blood alcohol levels more

severely than drivers with relatively lower blood alcohol levels. Specifically,

75 Pa.C.S.A. § 3802 sets forth the three tiers of illegal impairment in the

following manner:      Section 3802(a), subtitled “[g]eneral impairment,”

prohibits an individual from driving a vehicle “after imbibing a sufficient

amount of alcohol such that the individual is rendered incapable of safely


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J-A16019-16



driving . . . the vehicle” and from driving a vehicle with a blood or breath

alcohol concentration (hereinafter “BAC”) of at least 0.08% but less than

0.10%; Section 3802(b), subtitled “[h]igh rate of alcohol,” prohibits an

individual from driving a vehicle with a BAC of at least 0.10% but less than

0.16%; and, Section 3802(c), subtitled “[h]ighest rate of alcohol,” prohibits

an individual from driving a vehicle with a BAC that is 0.16% or higher. 75

Pa.C.S.A. § 3802.

      75 Pa.C.S.A. § 3804 sets forth the penalties for individuals who violate

Section 3802(a), (b), and (c) – the penalties are lowest for individuals who

violate Section 3802(a) and are the greatest for individuals who violate

Section 3802(c). However, Section 3804 also sets forth the punishment for

individuals who refuse a blood or breath test and who are then convicted of

DUI, general impairment:    the section punishes individuals who refuse the

test (and are convicted of Section 3801(a)(1), DUI, general impairment) at

the same level as those who are convicted of Section 3802(c), which is DUI,

highest rate of alcohol.

      Finally, with respect to an individual who refuses a blood or breath test

and who is then convicted of Section 3802(a)(1) (DUI, general impairment),

75 Pa.C.S.A. § 3803 also grades the conviction at the same level as an

individual who violates Section 3802(c), which is DUI, highest rate of

alcohol.   For individuals such as Appellant, who have “one or more prior

offenses,” 75 Pa.C.S.A. § 3803(b)(4) grades a conviction for DUI, highest

rate of alcohol and DUI, general impairment (when coupled with a refusal to

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J-A16019-16



submit to a blood or breath test) as a misdemeanor of the first degree. 75

Pa.C.S.A. § 3803(b)(4).      This is a higher grade of offense than “[a]n

individual who violates section 3802(a)[, DUI, general impairment] and has

more than one prior offense” – which Section 3803(a)(2) grades as a

second-degree misdemeanor. 75 Pa.C.S.A. § 3803(a)(2).

         Thus, even though Pennsylvania’s implied consent law does not make

the refusal to submit to a blood test a crime in and of itself, the law

undoubtedly “impose[s] criminal penalties on the refusal to submit to such a

test.”    Birchfield, 136 S.Ct. at 2185-2186.    To be sure, Section 3804(c)

provides that an “individual who violates section 3802(a)(1)[, DUI, general

impairment] and refused testing of blood” is punished more severely than an

individual who commits the stand-alone DUI, general impairment offense

under Section 3802(a)(1) – and to the same extent as an individual who

violates Section 3802(c), relating to DUI, highest rate of alcohol.        75

Pa.C.S.A. § 3804(c). As such, Birchfield controls the case at bar.

         In this case, Appellant consented to the warrantless blood draw after

the police informed him: “if you refuse to submit to chemical test and you

are convicted or plead to violating § 3802(a)(1)[,] related to impaired

driving under the vehicle code, because of your refusal, you will be subject

to more severe penalties set forth in § 3804(c)[,] relating to penalties, the

same as if you were – if you would be convicted at the highest rate of

alcohol.” N.T. Suppression Hearing, 5/20/14, at 23. As such, Appellant only

consented to the warrantless blood draw after being informed, by the police,

                                     - 17 -
J-A16019-16



that refusal to submit to the test could result in enhanced criminal penalties.

Since Birchfield held that a state may not “impose criminal penalties on the

refusal to submit to [a warrantless blood] test,” the police officer’s advisory

to Appellant was partially inaccurate. Therefore, we must vacate Appellant’s

judgment of sentence, vacate the suppression court’s order, and remand the

case to the trial court to “reevaluate [Appellant’s] consent . . . [, based on]

the totality of all the circumstances . . . [and] given the partial inaccuracy of

the officer’s advisory.” Birchfield, 136 S.Ct. at 2186.

      Judgment of sentence vacated.        Suppression order vacated.       Case

remanded for proceedings consistent with this opinion.               Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2016




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