J-A07016-18

                               2018 PA Super 111

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 GARY WILLIAM MILLER                     :    No. 779 MDA 2017

                 Appeal from the Order Entered May 1, 2017
               In the Court of Common Pleas of Centre County
            Criminal Division at No(s): CP-14-CR-0000150-2017


BEFORE:    PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

OPINION BY OLSON, J.:                                  FILED MAY 03, 2018

      The Commonwealth of Pennsylvania appeals from the May 1, 2017 order

granting Gary William Miller’s (“Appellee’s”) motion to suppress blood alcohol

concentration (“BAC”) test results, obtained after the reading of the newly-

revised DL-26B form and without a warrant, during the course of a driving

under the influence (“DUI”) investigation. Appellee argues that, because of a

prior DUI arrest in which he received warnings pursuant to the prior DL-26

form, Appellee subjectively believed that the new form threatened enhanced

criminal punishment if he refused to consent to a blood draw. We hold that,

under these circumstances, Appellee’s (incorrect) subjective belief regarding

the law cannot form the basis for the suppression of his BAC results.

Accordingly, we reverse the trial court’s suppression order and remand for

further proceedings consistent with this opinion.




____________________________________
* Former Justice specially assigned to the Superior Court.
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        The factual background of this case is as follows. On June 29, 2016,

Officer Robert Holt responded to a motor vehicle accident.           Officer Holt

suspected that Appellee, a driver of a vehicle involved in the accident, was

intoxicated and requested Appellee perform field sobriety tests.         Appellee

failed those tests and was arrested for suspicion of DUI.

        Officer Holt transported Appellee to the hospital where he read him the

DL-26B form. That form informed Appellee that he would face possible civil

penalties for failing to submit to a blood test; however, the form did not

include a warning regarding enhanced criminal penalties for refusing a blood

test. Thereafter, Appellee consented to the blood draw which showed that he

had a BAC of .223.

        The procedural history of this case is as follows. On February 16, 2017,

the Commonwealth charged Appellee via criminal information with DUI –

general impairment1 and DUI – highest rate.2 On February 23, 2017, Appellee

moved to suppress the blood draw evidence.            The trial court conducted a

suppression hearing on March 28, 2017.            On May 1, 2017, the trial court

granted Appellee’s suppression motion.           The Commonwealth filed a timely

notice of appeal.3 See Pa.R.A.P. 311(d) (providing that the Commonwealth


____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1).

2   75 Pa.C.S.A. § 3802(c).

3The Commonwealth and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.

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may take an appeal as of right from an interlocutory order that substantially

handicaps a prosecution).

       The Commonwealth presents one issue for our review:

       Did the trial court err in granting Appellee’s [m]otion to [s]uppress
       because[,] based on the totality of the circumstances, Appellee
       voluntarily consented to the blood draw because, inter alia, he
       was not told that he would face harsher criminal penalties for
       refusing to submit to a blood test?

Commonwealth’s Brief at 4.

       The Commonwealth’s sole issue challenges the trial court’s suppression

order. We review a trial court’s order suppressing evidence for an abuse of

discretion and our scope of review consists of “only the evidence from the

defendant’s witnesses along with the Commonwealth’s evidence that remains

uncontroverted.”     Commonwealth v. Maguire, 175 A.3d 288, 291 (Pa.

Super. 2017) (citations omitted).

       Contemporaneously with this opinion, we issued Commonwealth v.

Robertson, 1493 MDA 2017 (Pa. Super. May 3, 2018). In Robertson, we

held that defendants are presumed to know case law in addition to statutory

law.   Id. (slip op. at 9-12).      Moreover, in Robertson we rejected the

argument that police have an affirmative duty to inform defendants that they

do not face enhanced criminal penalties if they refuse a blood test. Id. (slip

op. at 12-13).     Hence, we reject the trial court’s rationale for granting

Appellee’s suppression motion.




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      Having determined that the trial court’s rationale was flawed, we turn

to the alternative bases for affirmance advanced by Appellee; i.e. the totality

of the circumstances establish that Appellees did not voluntarily consent to

the blood draw. Under Commonwealth v. Evans, 153 A.3d 323 (Pa. Super.

2016), a trial court must consider the totality of the circumstances when

determining if a defendant’s consent to a blood draw was voluntary. Id. at

328 (citation omitted). As our Supreme Court explained:

      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.

Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,

opinion announcing the judgment of the court) (cleaned up), citing

Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa. 1999).

      First, Appellee relies heavily on Commonwealth v. Myers, 164 A.3d

1162 (Pa. 2017) in support of his contention that his consent was not

voluntary. This argument, however, is based on a misunderstanding of the

facts in Myers.   In Myers, the defendant was unconscious.         Hence, our

Supreme Court held that the defendant was pharmacologically incapable of

consenting to a blood draw. Id. at 1181. Myers does not implicate consent

by individuals who are conscious, like Appellee in this case.     Accordingly,

Appellee’s heavy reliance on Myers is misplaced.


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      Second, Appellee avers that he subjectively believed he would face

increased criminal penalties if he refused a blood draw. Appellee avers that

the last time he was arrested for DUI, prior to the Supreme Court of the United

States’ decision in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), he

was read the DL-26 form. As we explained in Robertson, the DL-26 form

included a warning that failure to submit to a blood draw would subject a

defendant to enhanced criminal penalties. See Robertson, 1493 MDA 2017

(slip op. at 2 n.1). Appellee, therefore, argues that the trial court properly

considered his subjective belief that enhanced criminal consequences attached

to the refusal to consent to a blood draw.

      Appellee’s argument fails in light of our Supreme Court’s decision in

Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000). In Strickler, our

Supreme Court explained that, while a defendant’s subjective belief regarding

his or her ability to refuse to consent to a search may be considered as part

of the totality of the circumstances, it is the police officer’s express warnings

which are most important when evaluating subjective belief. See id. at 901.

In other words, incorrect subjective beliefs that are contradicted by a police

officer’s actual statements to a defendant diminishes the weight a trial court

may place on the defendant’s errant subjective belief.

      Officer Holt explicitly informed Appellee of his right to refuse a blood

test and correctly warned him that refusal could lead to certain civil penalties.

Appellee’s failure to recognize that Officer Holt’s warnings differed from those


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he received in the past, and his reliance on the previous police interaction,

cannot weigh heavily against finding voluntary consent. Instead, an incorrect

subjective belief based on failure to listen to explicit warnings from police

officers is entitled to little, if any, weight when evaluating the totality of the

circumstances surrounding a consent to search.

       We also find instructive a decision in a related field. As noted above,

drivers face potential civil consequences for refusing to consent to a blood

draw when police suspect they are driving under the influence. One of those

civil penalties is driver’s license suspension. If a driver knowingly refuses to

submit to a blood draw, his or her driver’s license is suspended for a specified

period of time.    In this context, our Supreme Court held that a driver’s

subjective belief about the accuracy of implied consent warnings is an

insufficient basis to claim that refusal to submit to a blood test was

involuntary. Nardone v. Commonwealth, Dep't of Transp., Bureau of

Driver Licensing, 130 A.3d 738, 751 (Pa. 2015) (citation omitted). In light

of Birchfield, the Commonwealth Court has held that Nardone is still good

law.   Park v. Commonwealth, Dep't of Transp., Bureau of Driver

Licensing, 178 A.3d 274, 281 (Pa. Cmwlth. 2018) (citation omitted). It would

be inconsistent to allow for an incorrect subjective belief regarding the criminal

consequences of not consenting to a blood draw to be weighed heavily against

a finding of voluntariness while an incorrect subjective belief regarding the

consequences of refusing a blood draw is not dispositive in the civil context.


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Instead, Nardone implies that an incorrect subjective belief regarding the

consequences of not consenting to a blood draw is a minor factor when

considering the totality of the circumstances.

      Repeat DUI offenders, owing to past legal transgressions, are not

entitled to a benefit that would be unavailable to first-time DUI offenders.

Essentially, Appellee argues that repeat DUI offenders should be held to a

lower standard than first-time DUI offenders. The absurdity of the argument

is self-evident.   Individuals that repeatedly endanger the lives of innocent

civilians should be held to a higher standard than those that make a first-time

mistake. Our General Assembly has recognized this fact by providing harsher

penalties for repeat DUI offenders. See 75 Pa.C.S.A. § 3804. We refuse to

provide an incentive for repeat DUI offenders by making it easier for them to

suppress blood draw evidence. Accordingly, we hold that Appellee’s argument

related to his subjective belief of possible increased criminal penalties is

without merit.

      Turning to the Cleckley factors in determining whether Appellee

voluntarily consented to the blood draw, we note the following. First, Appellee

was in custody.       Thus, the first factor weighed against a finding of

voluntariness.     Nevertheless, police did not use coercive tactics nor was

Appellee under duress. Thus, the second factor weighed in favor of finding

voluntariness. Appellee was properly advised of his right to refuse a blood

draw. Hence, the third factor weighed in favor of a finding of voluntariness.


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The fourth factor was either neutral or only slightly weighed against a finding

of   voluntariness   due   to   Appellee’s   subjective   belief   regarding   the

consequences of refusing a blood draw. The fifth factor was neutral because

no evidence was presented regarding whether Appellee was aware that

incriminating evidence would be found in his blood.        Finally, Appellee fully

cooperated with police.     Accordingly, the last factor weighed in favor of

voluntariness.   No reasonable fact-finder could weigh these factors and

determine that Appellee’s consent was involuntary. As such, we decline to

remand this matter for further fact-finding and instead reverse the trial court’s

suppression order and remand for further proceedings consistent with this

opinion.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2018




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