              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeremy Bonanno                          :
                                        :   No. 1798 C.D. 2016
            v.                          :
                                        :   Submitted: April 7, 2017
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                  Appellant             :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                FILED: September 14, 2017


            The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (Department of Transportation) appeals from the October
6, 2016 order by the Court of Common Pleas of Beaver County (trial court)
sustaining the statutory appeal of Jeremy Bonanno (Bonanno) from a one-year
suspension of his operating privilege imposed by the Department of Transportation.


                       Background and Procedural History
            On the evening of December 10, 2015, Bonanno crashed his vehicle into
a telephone pole.    Officer Charles Galzarano, of the Midland Borough Police
Department, responded to the motor vehicle accident. Bonanno informed Officer
Galzarano that he had wrecked his car into the telephone pole, but that he was not
injured. After smelling alcohol on Bonanno’s breath, Officer Galzarano requested
that Bonanno perform field sobriety tests. Upon failing three field sobriety tests,
including a nine-step walk and turn, a one-legged stand, and finger dexterity,
Bonanno admitted to Officer Galzarano that he had consumed a “couple of drinks.”
(Reproduced Record “R.R.” at 29a-31a.)
            Officer Galzarano subsequently arrested Bonanno under suspicion of
driving under the influence of alcohol (DUI).     Officer Galzarano requested that
Bonanno submit to a chemical blood test, and Bonanno refused. Officer Galzarano
then brought Bonanno to the Midland Police Station. Officer Galzarano then read the
standard Pennsylvania DL-26 Chemical Test Warning Form to Bonanno, which
included a request to submit to a blood test, and then provided the form to Bonanno.
However, Bonanno refused to sign the form. Officer Galzarano read the form again
and requested that Bonanno submit to a chemical blood test. Bonanno again refused.
(R.R. at 31a-37a.)
            Approximately ten-to-fifteen minutes after Bonanno was brought to the
Midland Police Station, his wife arrived to pick him up and Bonanno was released.
Bonanno’s wife then went back into the police station and informed Officer
Galzarano that Bonanno would submit to a blood test, but Officer Galzarano
informed her that Bonanno had already refused it. (R.R. at 37a-43a.)
            On January 13, 2016, the Department of Transportation suspended
Bonanno’s driving privileges for a period of twelve months, effective February 17,
2016. His driving privileges were suspended due to Bonanno’s violation of 75
Pa.C.S. §1547 of the Pennsylvania Vehicle Code (Vehicle Code), Chemical Test
Refusal. (R.R. at 8a-10a.)




                                         2
             On January 25, 2016, Bonanno appealed the suspension, alleging that it
violated Section 1547 of the Vehicle Code and sought a judicial stay pursuant to
Section 1550 of the Vehicle Code. (R.R. at 8a-10a.)
             On June 23, 2016, the trial court held a hearing, at which Officer
Galzarano and Bonanno both testified as witnesses. (R.R. at 23a-28a.) Officer
Galzarano testified that,

             I will say I explained the consequences to him. To be
             honest with you, I’m not going to, I’m not going to say I
             totally feel that he understood, to be honest with you. I
             feel like with his state of mind with being intoxicated and
             then just being involved in an accident, I do believe that
             even me explaining to him multiple times he probably
             didn’t understand at that point.
(R.R. at 35a.) Bonanno testified that he did not fully understand the Section 1547
warnings and that his wife went back to the station to tell Officer Galzarano that
Bonanno would submit to the blood test but was informed that it was too late. (R.R.
at 42a-43a.) The trial court ordered that Bonanno “may file a Memorandum of Law
in support of his position” no later than July 1, 2016, and that the Department of
Transportation “may file a reply Memorandum within seven (7) days of the receipt of
the Memorandum of [Bonanno].” (R.R. at 65a.)
             On June 26, 2016, Bonanno filed a memorandum in support of statutory
appeal, arguing that he did not fully understand his rights, and that once he
understood, he “communicated his desire to submit to the chemical testing.” (R.R. at
66a-73a.) Bonanno further argued that his confusion was analogous to MacDonald v.
Department of Transportation, Bureau of Traffic Safety, 708 A.2d 154, 155-56 (Pa.
Cmwlth. 1998), where this Court held that attempting to sign a form that was then
taken away demonstrated a willingness to submit to a blood test and that MacDonald
was legitimately confused about her rights regarding chemical testing.

                                          3
             On July 5, 2016, the Department of Transportation filed a memorandum
in support of a one-year license suspension for refusing to submit to a chemical test
of blood. (R.R. at 84a-92a.) The Department of Transportation argued that there was
no medical evidence that he was unable to take the test or that any “injury contributed
to him not understanding the Officer” or any other condition “that would prevent him
from understanding what the officer was reading to him.” (R.R. at 88a.) The
Department of Transportation further argued that, according to this Court’s decision
in McKenna v. Department of Transportation, Bureau of Driver Licensing, 72 A.3d
294 (Pa. Cmwlth. 2013), police officers have no duty to ensure that a licensee
understands the consequences of refusing a chemical test, only that an officer must
convey to the licensee the consequences of refusing to submit to a chemical test. The
Department of Transportation argued that being under the influence of alcohol is not
a defense to making a knowing and conscious refusal. Additionally, the Department
of Transportation argued that the facts here are distinguishable from MacDonald
because Bonanno never indicated that he was confused about the warnings. The
Department of Transportation further argued that the law required Bonanno to
consent, not Bonanno’s wife, and that Bonanno himself never consented to the blood
test. (R.R. at 87a-90a.)
             On July 25, 2016, the Department of Transportation filed a
memorandum on why Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195
L.Ed.2d 560 (2016), issued in June 2016 during the pendency of the trial court
proceeding, has no impact on civil license suspension. Birchfield addressed the
legality of blood tests in traffic stops, finding that motorists may not be criminally
punished for refusing to submit to a blood test based on legally implied consent to
submit to them. Birchfield, ___ U.S. ___, 136 S.Ct. at 2185. The Department of



                                          4
Transportation argued that Birchfield is not applicable here because the Pennsylvania
Supreme Court has held that an operating privilege suspension for a chemical test
refusal is permissible and that Pennsylvania’s implied consent law is different than
the statutes at issue in Birchfield. (R.R. at 78a-83a.)
             On July 27, 2016, Bonanno filed an amended memorandum in support of
statutory appeal conceding that Birchfield is not applicable and that the court “should
not rely upon it in granting [Bonanno’s] appeal of the suspension of his operator’s
license privilege.” (R.R. at 93a-96a.)
             On October 6, 2016, the trial court held that the Department of
Transportation met its burden under section 1547 of the Vehicle Code and that
Bonanno’s arguments do not rebut that burden. (Trial court op. at 7). However, the
Trial Court found that Birchfield was controlling here, despite both Bonanno and the
Department of Transportation contending otherwise. (Trial court op. at 8-11.) The
trial court found that,

             the escalation of an offense from one that carries no
             possibility of a jail sentence and a fine of $300.00 to one
             that allows a maximum of five years in jail and a maximum
             $10,000.00 fine, due Petitioner’s refusal to submit to a
             blood test, is precisely what the Birchfield Court held was
             unlawful.
Id. The trial court also noted that both the Birchfield decision and the Department of
Transportation’s revised DL-26B form were both issued during June 2016 and that
the revised DL-26B form eliminated “any language referring to the enhanced
criminal penalties previously referenced.” Id. The Trial Court issued an order
sustaining Bonanno’s appeal. Id. at 12.




                                            5
               On October 27, 2016, the Department of Transportation appealed to this
Court.1


                                           Discussion
               On appeal, the Department of Transportation argues that there was no
merit to Bonanno’s argument that he did not understand his rights and that the trial
court erred in sua sponte raising Birchfield and, alternatively, that even if Birchfield
was properly raised, it “explicitly approved a State’s use of civil sanctions.” (Brief
for Appellant, at 11.)


                              Section 1547 of the Vehicle Code
               The Department of Transportation argues that the trial court correctly
held that there was no merit to Bonanno’s argument that he did not understand his
rights. More specifically, the Department of Transportation argues that it met its
prima facie burden of proof under Section 1547 of the Vehicle Code and that
MacDonald does not apply here because the licensee in MacDonald attempted to sign
the consent form prior to the officer taking it away. (Brief for Appellant, at 12.)
               Section 1547 of the Vehicle Code addresses one-year suspensions of
operating privileges, stating that, the Department of Transportation must prove that
the party (1) was arrested by a police officer who had reasonable grounds to believe
that he was operating or was in actual physical control of the movement of a vehicle
while he was committing an offense under 75 Pa.C.S. §3802; (2) was asked to submit

       1
        Our scope of review is limited to determining whether the trial court committed an error of
law, whether the trial court abused its discretion, or whether the findings of facts are supported by
competent evidence. Department of Transportation, Bureau of Traffic Safety v. O’Connell, 555
A.2d 873, 875 (Pa. 1989).



                                                 6
to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal
would result in the suspension of his operating or driving privilege and would result
in his being subject to the penalties set forth in 75 Pa.C.S. §3804(c) if he were later
convicted of violating 75 Pa.C.S. §3802(a)(1).           Martinovic v. Department of
Transportation, Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005).
             Here, as the trial court correctly found, Officer Galzarano arrested
Bonanno after Bonanno wrecked his automobile into a telephone pole, failed three
field sobriety tests, and admitted to having a couple of alcoholic drinks prior to
operating a vehicle. (R.R. at 29a-31a.).
             Following Bonanno’s arrest, Officer Galzarano asked him three times to
submit to a chemical test, and Bonanno refused each time. (R.R. at 31a-37a.) It was
only after Bonanno left the Midland Police Station with his wife that his wife
returned and said that Bonanno would submit to a chemical test. (R.R. at 37a-43a.)
Though Bonanno argued at trial that his wife’s request was sufficient, the trial court
correctly held that Bonanno refused to submit to a chemical test as a result of his
prior refusals and because his wife’s request was not clear. King v. Pennsylvania
Department of Transportation, Bureau of Driver Licensing, 828 A.2d 1, 4 (Pa.
Cmwlth. 2002) (“The law is well settled that anything less than a licensee’s
unqualified, unequivocal assent to submit to chemical testing constitutes a refusal.…
[A] refusal to take the test is not vitiated by a subsequent request to take the test, even
if this subsequent request was made within a few minutes of the refusal.”).
             Further, the trial court correctly found that Bonanno was warned that his
refusal to submit to chemical testing could result in the suspension of his operating
privileges. Although Bonanno argued at trial that he was confused,

             [a]n officer’s sole duty is to inform motorists of the
             implied consent warnings; once they have done so, they

                                            7
             have satisfied their obligation. Additionally, and not
             without significance in this case, officers have no duty to
             make sure that licensees understand the O’Connell
             warnings or the consequences of refusing a chemical test.
Martinovic, 881 A.2d at 35.
             At trial, Bonanno argued that he was confused, citing MacDonald, 708
A.2d at 154-56. In MacDonald, the licensee was arrested under suspicion of a DUI
and was presented with a form with chemical test refusal warnings. The licensee
asked several questions regarding her rights and attempted to sign the form, but the
officer took it away. Id. This Court held that, “it is not a refusal . . . when a licensee
delays a decision because of confusion as to his or her rights and then assents to
submit to a chemical test when those rights are made clear.” Id.
             As the trial court correctly held, this case is distinguishable from
MacDonald because here Bonanno neither delayed nor asked questions regarding his
rights, but instead, he explicitly refused to submit to a chemical test. Therefore, the
trial court correctly found that the Department of Transportation met its burden to
support a one-year suspension of operating privileges under 75 Pa.C.S. §1547.


                               Application of Birchfield
             The Department of Transportation next contends that the trial court erred
in sua sponte raising Birchfield and rendering the decision based solely on the issue
that the court raised. More specifically, the Department of Transportation argues that
the trial court’s scope of review was limited to the “issues raised by the parties
themselves” and that here neither the Department of Transportation nor Bonanno
raised the effect of Birchfield on appeal. (Brief for Appellant, at 19-20.) Further, the
Department of Transportation notes that Bonanno explicitly stated that Birchfield did
not apply to his appeal. (R.R. at 94a.)


                                            8
             A trial court errs when it introduces theories not raised by the parties.
Hrivnak v. Perrone, 372 A.2d 730, 730-34 (Pa. 1977) (The trial judge erred by sua
sponte providing “the jury with a ground for recovery which was neither solicited nor
urged by the moving party, and which was in fact steadfastly resisted by the moving
party throughout the entire proceeding”); see also Snider v. Thornburgh, 436 A.2d
593, 601 n. 8 (Pa. 1981) (A court must confine its consideration to the issues
presented by the parties); Department of Transportation, Bureau of Driver Licensing
v. Harrington, 784 A.2d 871, 874 (Pa. Cmwlth. 2001) (A trial court commits
reversible error when it raises an issue sua sponte and then decides a case based on
that issue); Department of Transportation, Bureau of Traffic Safety v. Reott, 424 A.2d
991, 992 (Pa. Cmwlth. 1981) (“A trial court errs when it rules on an issue not
presented to it, because an issue not raised is deemed waived”).
             Here, neither the Department of Transportation nor Bonanno raised the
applicability of Birchfield. Further, Bonanno explicitly denied any applicability of
Birchfield to his appeal, stating that, “Plaintiff concedes that, as applied to the instant
case, Birchfield vs. North Dakota,[___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560
(2016)], is not applicable, and that this Honorable Court should not rely upon it in
granting Plaintiff’s appeal of the suspension of his operator’s license privilege.”
(R.R. at 94a.) Given that neither party raised the applicability of Birchfield and that
Bonanno explicitly rejected Birchfield, we find that the trial court erred in deciding
this case on the basis of the holding in Birchfield.
             However, even if the trial court was proper in raising Birchfield, this
Court recently held that, “Birchfield does not apply to implied consent laws that
merely impose civil penalties.” Boseman v. Department of Transportation, Bureau of
Driver Licensing, 157 A.3d 10, 21 (Pa. Cmwlth.), appeal denied, ___ A.3d ___ (Pa.,



                                            9
No. 210 MAL 2017, filed August 22, 2017).              In Boseman, a licensee had her
operating privileges suspended under 75 Pa. C.S. § 1547(b)(1)(i) for refusing to
submit to a chemical test after being arrested on suspicion of a DUI. Id. at 12. This
Court reasoned that Birchfield, by its own language, limited its holding to criminal
prosecutions for refusing a warrantless blood test following an arrest for a DUI by
stating that “[p]etitioners do not question the constitutionality of those [civil] laws,
and nothing we say here should be read to cast doubt on them.” Id. at 21 (quoting
Birchfield, ___ U.S. ___, 136 S.Ct. at 2185). This Court held that Birchfield did not
apply to civil suspensions of operating privileges and granted the Department of
Transportation’s request to re-instate Boseman’s one-year suspension. Id. at 21-22.
Therefore, as in Boseman, the trial court here improperly applied Birchfield to a civil
suspension of operating privileges.2
             Accordingly, the order of the trial court is reversed. The Department of
Transportation is directed to re-instate the one-year suspension of Bonanno’s
operating privilege.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge




      2
        But see Gray v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of
Driver Licensing, (Pa. Cmwlth., Nos. 1759 and 1760 C.D. 2016, filed June 9, 2017), 2017 WL
2536439 (McCullough, J., concurring) (noting disagreement with application Birchfield).




                                             10
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeremy Bonanno                           :
                                         :    No. 1798 C.D. 2016
             v.                          :
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Driver Licensing,              :
                  Appellant              :


                                      ORDER


             AND NOW, this 14th day of September, 2017, the order of the Court
of Common Pleas of Beaver County Pennsylvania, dated October 6, 2016, is
hereby reversed. The Department of Transportation, Bureau of Driver Licensing,
is hereby directed to reinstate the one-year suspension of the operating privilege of
Jeremy Bonanno.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeremy Bonanno                           :
                                         :
            v.                           :
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Driver Licensing,              :   No. 1798 C.D. 2016
                  Appellant              :   Submitted: April 7, 2017


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                            FILED: September 14, 2017

            The Majority's focus on the minor factual differences between this
case and those in MacDonald v. Department of Transportation, Bureau of Driver
Licensing, 708 A.2d 154 (Pa. Cmwlth. 1998) is misplaced.           Our underlying
reasoning behind MacDonald is equally as applicable here: confusion surrounding
the request to submit to a blood test does not constitute refusal. By the arresting
officer's own testimony, he was unsure as to whether Jeremy Bonanno (Licensee)
understood the warning that refusal would result in suspension of operating
privileges: “I feel like with his state of mind with being intoxicated and then just
being involved in an accident, I do believe that even me explaining to him
multiple times he probably didn’t understand at that point.”            (Reproduced
Record (R.R.) at 35a.; see also Majority, slip op. at 3 (emphasis added).)
Whatever the cause of Licensee’s confusion, whether intoxication, or “just being
involved in an accident,” or both, it is clear that even the arresting officer was
unsure of what was being conveyed to Licensee when the request for submission
was made. (R.R. at 35a.) Under these circumstances, it cannot be said with any
certainty that the officer adequately informed Licensee as required by law.
Coupled with Licensee's ultimate consent to submit, as conveyed by his wife to the
officer, the trial court's decision should be upheld. As such, I must dissent.




                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge




                                       JMC-2
