J-A11003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LESLIE JOSEPH FREDERICK JR.                :
                                               :
                       Appellant               :   No. 771 MDA 2019

          Appeal from the Judgment of Sentence Entered April 22, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0004510-2018


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

MEMORANDUM BY PANELLA, P.J.:                   FILED: JUNE 8, 2020

        Appellant, Leslie J. Frederick, Jr., appeals from his judgment of sentence

entered by the Court of Common Pleas of Dauphin County for driving under

the influence of alcohol (“DUI”), 75 Pa.C.S.A. § 3802(c). In his sole issue in

this appeal, Appellant maintains the trial court erred by denying his motion to

suppress his blood test results as those results were, according to Appellant,

obtained in violation of Birchfield v. North Dakota, --- U.S.---, 136 S.Ct.

2160, 195 L.Ed.2d 560 (2016). We disagree with Appellant that the trial court

erred by denying his motion to suppress, and affirm his judgment of sentence.




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      This Court’s standard of review regarding the denial of a suppression

motion, such as Appellant’s, is well-established and has been summarized as

follows:

      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. 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 [suppression
      court’s] conclusions of law [ ] are subject to our plenary review.

      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. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (citation

omitted).

      The Commonwealth and Appellant stipulated to a skeletal set of facts at

the hearing regarding Appellant’s motion to suppress. The parties stipulated

that Appellant was arrested on June 9, 2018 for suspicion of DUI. Appellant

was then read warnings from the Pennsylvania Department of Transportation’s

DL-26B “Chemical Test Warnings and Report of Refusal to Submit to a Blood

Test as Authorized by Section 1547 of the Vehicle Code” form, which had been




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updated in January of 2018 (“DL-26B consent form”).1 Those warnings

informed Appellant that if he refused to consent to a blood test, his driver’s

license would be suspended and he would have to pay a fee of up to $2000 to

restore the license. Appellant consented to the blood draw to test his blood to

determine its blood alcohol concentration.

        Following the suppression hearing, the trial court directed the parties to

file a post-hearing brief regarding Appellant’s claim that his blood test results

should be suppressed on the basis that his consent had been unlawfully

coerced by the DL-26B consent form’s warnings pursuant to Birchfield. The

court subsequently denied Appellant’s motion to suppress on February 8,

2019.

        The matter proceeded to a non-jury trial. The trial court found Appellant

guilty of, inter alia, DUI and sentenced him to 12 months of intermediate

punishment. Appellant filed this timely notice of appeal, challenging the trial

court’s conclusion that his consent to draw his blood had not been involuntarily

given.

        “It is black letter law that a criminal defendant can only validly consent

to a search and seizure when that consent is given voluntarily and knowingly

as contemplated by the Fourth Amendment to the United States Constitution


____________________________________________


1This is the standard consent form police use when they seek the consent of
a driver suspected of DUI to submit to a warrantless blood test. See
Commonwealth v. Krenzel, 209 A.3d 1024, 1028 (Pa. Super. 2019).


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and Article I, Section 8 of the Pennsylvania Constitution.” Commonwealth v.

Geary, 209 A.3d 439, 442 (Pa. Super. 2019). The administration of a blood

test performed by an agent of, or at the direction of, the government,

constitutes a search under both Constitutions. See Commonwealth v.

Evans, 153 A.3d 323, 328 (Pa. Super. 2016). “A search conducted without a

warrant is deemed to be unreasonable and therefore constitutionally

impermissible, unless an established exception applies.” Commonwealth v.

Strickler, 757 A.2d 884, 888 (Pa. 2000). “One such exception is consent,

voluntarily given.” Id.

      In Birchfield, the United States Supreme Court “refined the notion of

consent in the context of intoxicated driving.” Geary, 209 A.3d at 442. One

of the petitioners in Birchfield claimed that his consent to a blood test

following his arrest for DUI had been coerced by the officer’s warning that a

refusal to submit to the blood test constituted a crime itself under North

Dakota law. The Supreme Court agreed, concluding that “motorists cannot be

deemed to have consented to submit to a blood test on pain of committing a

criminal offense.” Birchfield, 136 S.Ct. at 2186. As such, the Court 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). See id. at 2185-2186; Commonwealth v.

Robertson, 186 A.3d 440, 444 (Pa. Super. 2018), appeal denied, 195 A.3d

852 (Pa. 2018). If a defendant’s explicit consent is found to have been


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influenced by an improper criminal penalty for refusal, the court must assess

the voluntariness of the consent under the totality of the circumstances. See

Birchfield, 136 S.Ct. at 2186.

      The Birchfield Court’s holding, however, was limited to a prohibition

against imposing additional criminal penalties for refusing a warrantless blood

test. The Court explicitly announced that its holding did not apply to the

imposition of civil penalties and evidentiary consequences upon motorists who

refused a blood test. To that end, the Court stated:

      It is well established that a search is reasonable when the subject
      consents, and that sometimes consent to a search need not be
      express but may be fairly inferred from context. Our 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. Petitioners do
      not question the constitutionality of those laws, and nothing we
      say here should be read to cast doubt on them.

Birchfield, 136 S.Ct. at 2185 (internal citations omitted).

      Following Birchfield, Pennsylvania Governor Thomas Wolf signed into

law Act 30 of 2017, Act of July 20, 2017, P.L. 333, No. 30 (“Act 30”), which

amended Pennsylvania’s Vehicle Code to comport with Birchfield. See

Robertson, 186 A.3d at 445. Specifically, Act 30 provided for enhanced

criminal penalties for individuals who refuse to submit to a blood test only

when a warrant has been obtained for the individual’s blood. See id.

      Act 30 also amended 75 Pa.C.S.A. § 1547 (“Section 1547”) of the

Vehicle Code, commonly referred to as Pennsylvania’s Implied Consent Law.

Relevant to the instant case, Act 30 revised the heading of subsection (b) of

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Section 1547 from “Suspension for refusal” to “Civil Penalties for refusal.” Act

30 then added provisions to subsection (b), so that in addition to having their

driver’s license suspended for a refusal to consent to a blood test, motorists

would face certain fees if they sought to restore their operating privilege

following that suspension.2 In relevant part, Section 1547 now reads:

      (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 driving,
              operating or in actual physical control of the movement of a
              vehicle in violation of section [...] 3802 (relating to driving
              under influence of alcohol or controlled substance) [.]

      (b) Civil Penalties 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[.]

                                          ***

       (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 the person will be
            subject to a restoration fee of up to $2000[.]

                                          ***

____________________________________________


2 These particular amendments were to take effect in six months from the
July 20, 2017 enactment date of Act 30, or on January 20, 2018.


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      (b.2) Restoration Fees.--

        (1) A person whose operating privilege has been suspended in
           accordance with subsection (b) […] shall:

            (i) Except as provided in subparagraph (ii) or (iii), pay a
            restoration fee of $500.

            (ii) If the department has previously suspended the person’s
            operating privilege under this section on one occasion, pay a
            restoration fee of $1,000.

            (iii) If the department has previously suspended the person’s
            operating privilege under this section on two or more
            occasions, pay a restoration fee of $2000.


75 Pa. C.S.A. §1547 (emphasis in original).

       In turn, the Pennsylvania Department of Transportation amended the

DL-26 consent form to comply with Birchfield3 and again to comply with Act

30. See Robertson, 186 A.3d at 444-445. Thus, the updated form, renamed

the DL-26B consent form and dated January 2018, was the one read to

Appellant. Paragraph three of that form now warns a motorist suspected of

DUI that:

       If you refuse to submit to the blood 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, your operating privilege will be suspended for up to 18
       months. If your operating privilege is suspended for refusing

____________________________________________


3 Within one week of Birchfield, the Department of Transportation revised
the DL-26 consent form to remove the warnings to a driver suspected of DUI
that they would face enhanced criminal penalties if they refused to submit to
the warrantless blood test. See Robertson, 186 A.3d at 444. This revision to
the form is not at issue in this case.


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      chemical testing, you will have to pay a restoration fee of up to
      $2000 in order to have your operating privilege restored.

DL-26B(1-18) Form, Defendant’s Motion to Suppress Evidence, Exhibit A.

      Appellant claims this paragraph violated his rights under Birchfield. In

rejecting Appellant’s claim below, the trial court stated:

      At no point in time was [Appellant] advised he may be subject to
      enhanced criminal sanctions upon refusal of blood testing.
      Instead, [Appellant] was informed of the civil and administrative
      repercussions that would be imposed for failure to consent to
      blood testing pursuant to the amended DL-26[B consent] form.
      These civil and administrative repercussions, suspension of license
      and [up to] a $2000 restoration fee, were included within the third
      paragraph of the amended DL-26[B consent] form.

Trial Court Order, 2/8/2019, at 1 (footnote omitted).

      Because the DL-26B consent form only informed Appellant of the civil

and administrative penalties he faced should he refuse to consent to a blood

test, the trial court found that it did not violate Birchfield’s directive

prohibiting states from imposing criminal penalties upon a motorist’s refusal

to submit to a warrantless blood test. The trial court emphasized that

Birchfield explicitly allowed states to impose civil penalties, such as the

license suspension and restoration fee, for a refusal to submit to a warrantless

blood test.

      Appellant does not challenge the trial court’s conclusion that the

mandatory suspension of his license upon the refusal to submit to a

warrantless blood test is a civil penalty for purposes of Birchfield. To be sure,

that conclusion is entirely consistent with the case law from the courts of this


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Commonwealth. See, e.g., Commonwealth v. Smith, 177 A.3d 915, 921-

922 (Pa. Super. 2017) (finding that DL-26B consent form’s warning that a

motorist’s license would be suspended upon refusal to submit to a blood test

was not criminal in nature and therefore did not run afoul of Birchfield);

Factor v. Cmwlth., Dept. of Transp, 199 A.3d 492, 500-501 (Pa. Cmwlth.

2018) (holding that a license suspension under Section 1547 is a civil penalty

and not a criminal punishment for purposes of Birchfield).

      Rather,   Appellant   focuses   solely   on   attacking   the   trial   court’s

determination that the restoration fee is a civil, rather than a criminal, penalty.

Appellant recognizes that the restoration fee is a discretionary one, only

coming into play should a driver choose to seek restoration of his license

following its suspension. Nonetheless, Appellant makes several arguments in

support of his assertion that the fee, while not mandatory, is actually criminal

in nature because the amount of the fee makes it “punishment veiled in an

administrative fee.” Appellant’s Brief at 10. We are not persuaded by any of

Appellant’s arguments.

      At the outset, we note that Act 30’s amendments to Section 1547 plainly

signal that the Pennsylvania General Assembly intended the restoration fee to

be civil in nature. Prior to the enactment of Act 30, subsection (b) of Section

1547 was entitled “Suspension for refusal” and mandated that the Department

of Transportation suspend the license of a driver upon refusal to submit to a

chemical test. See Boseman v. Cmwlth., Dept. of Transp., 157 A.3d 10,


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17-21 (Pa. Cmwlth. 2017) (outlining pre-Act 30 version of Section 1547 and

holding that a license suspension is a civil penalty).

      Act 30 replaced the word “Suspension” in subsection (b)’s heading with

“Civil penalties”, so that the heading reads “Civil penalties for refusal.” See

Act of July 20, 2017, P.L. 333, No. 30, § 3. The Act then added provisions to

subsection (b) regarding the restoration fee, and the specific amount of such

a fee, that a driver would be subject to in order to restore a license suspended

for refusing chemical testing. See id.; 75 Pa.C.S.A. § 1547 (b.2). Act 30 also

added language to subsection (b) requiring a police officer to inform a driver

suspected of DUI that in addition to having his license suspended for refusing

to submit to chemical testing, the driver would face a restoration fee of up to

$2000. See Act of July 20, 2017, P.L. 333, No. 30, § 3; 75 Pa.C.S.A. § 1547

(b)(2)(i).

      Given this construct and plain language of the statute, it is clear that

the General Assembly intended for the restoration fee to be one of the “civil

penalties for refusal.” See Commonwealth v. Muniz, 164 A.3d 1189, 1209

(Pa. 2017) (stating that courts must consider a statute’s text and its structure

when determining legislative intent); A.S. v. Pennsylvania State Police,

143 A.3d 896, 903 (Pa. 2016) (stating that a “statute’s plain language

generally provides the best indication of legislative intent”).

      Notwithstanding this plain language, Appellant argues that the General

Assembly actually intended the restoration fee to be punitive. He contends


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that this intent to punish is reflected by the fact that, although there is no

evidence that the administrative costs associated with restoring a suspended

license differ because of the reason behind the suspension, the General

Assembly nonetheless made the restoration fee for a license suspended

pursuant to Section 1547 significantly higher than the restoration fees for

licenses suspended as a result of other Vehicle Code violations. This claim

fails.

         In making this argument, Appellant does not acknowledge what the

courts of this Commonwealth have consistently identified as the intent behind

Section 1547. Our Supreme Court has made clear that Section 1547 was

enacted to address the hazard of intoxicated drivers on the road. See

Nardone v. Cmwlth., Dept. of Transp., 130 A.3d 738, 747 (Pa. 2015).

Likewise, the Commonwealth Court has stated unequivocally that the “General

Assembly intended [Section 1547] as a civil penalty to protect Pennsylvanians

by removing drunk drivers from the road.” Factor, 199 A.3d at 500. The

Factor Court explained:

         The objective of [Section 1547] is to protect the public by
         providing an effective means of denying intoxicated motorists the
         privilege of using the highways of this Commonwealth. A further
         purpose of [Section 1547] is to facilitate the acquisition of
         chemical analyses and to permit their utilization in legal
         proceedings. The mischief sought to be remedied by [Section
         1547] is the number of fatalities and injuries which occur every
         day on our roads as a result of drivers operating vehicles under
         the influence of alcohol and/or drugs. The objective of preserving
         the life and death of this Commonwealth’s motorists is most
         important, and the statute should be liberally construed to effect
         its objective and promote justice.

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Id., quoting Occibone v. Cmwlth., Dep’t of Transp., 645 A.2d 327, 330-

331 (Pa. Cmwlth. 1994), affirmed, 669 A.2d 326 (Pa. 1995).

      Appellant does not address these objectives, much less demonstrate

how the General Assembly deviated from them by imposing a heightened fee

for restoring one’s license after it has been suspended for refusing chemical

testing. Indeed, the fact that the fee is not a trivial one only facilitates Section

1547’s non-punitive objectives of acquiring chemical testing and keeping

drunk drivers off the road. Given these objectives, we cannot agree with

Appellant’s assertion that the General Assembly intended for the restoration

fee to be a form of punishment rather than the non-punitive civil penalty it

specifically categorized it as.

      Appellant also essentially argues that even if the restoration fee was not

intended to punish, it is punitive in effect. When considering such a claim, we

are mindful that “only the clearest proof that a law is punitive in effect may

overcome a legislative categorization to the contrary.” Commonwealth v.

Mullins, 905 A.2d 1009, 1017 (Pa. Super. 2006) (citation omitted). In support

of his claim here, Appellant asserts that the “up to $2000” fee is “unaffordable”

for some Pennsylvanians and is therefore punitive because it effectively

constitutes a “lifelong” ban on their “right and need” to drive. Appellant’s Brief

at 10-11. This claim also fails.

      In   the   first   place,   we   reject    Appellant’s   argument   that   this

Commonwealth views driving as a right. “Our courts have established that

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driving is a privilege, not a fundamental right.” Commonwealth v. Bell, 167

A.3d 744, 747 (Pa. Super. 2017), affirmed, 211 A.3d 761 (Pa. 2019), cert.

denied, 140 S.Ct. 934 (U.S. Jan.21, 2020); see also Renfroe v. Cmwlth.,

Dep’t of Transp., 179 A.3d 644, 648 (Pa. Cmwlth. 2018) (stating that it is

well-settled that driving in Pennsylvania is a privilege and not a right).

       In spite of this precedent, Appellant argues that our Supreme Court’s

decision in Shoul v. Cmwlth., Dept. of Transp., 173 A.3d 669 (Pa. 2017),

“moved away from this pattern” and recognized “a citizen’s right and need to

drive a motor vehicle.” Appellant’s Brief at 10. Contrary to Appellant’s

assertions, Shoul did not hold that the commercial driver’s license at issue in

that case was a fundamental right and in fact, Justice Wecht’s concurrence

explicitly pointed out that the majority “reaffirm[ed] that a commercial driver’s

license   is   a   privilege   and    not      a   fundamental   right.”   Id.   at   688

(concurrence)(emphasis added).4




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4 To the extent Appellant attempts to rely on Shoul to support his argument
that the restoration fee constitutes a criminal sanction, we note that the
circumstances in Shoul were materially different from those in the instant
case. In Shoul, the appellee argued that the lifetime disqualification from
holding a commercial driver’s license based on his conviction for drug crimes
while using a motor vehicle violated his substantive due process rights and
constituted cruel and unusual punishment. See id. at 674. Appellant makes
no such claims regarding the restoration fee for the temporary suspension of
his non-commercial driver’s license in the instant case.



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       Our Supreme Court has repeatedly stated that to obtain the benefit of

the privilege of driving, a driver must abide by the laws of this Commonwealth

related to that privilege. See, e.g., Alexander v. Cmwlth., Dept. of

Transp., 880 A.2d 552, 561 (Pa. 2005) . Those laws include Section 1547,

which clearly sets out the civil penalties - the suspension of one’s driving

privilege and a set fee to restore that privilege - for a driver’s refusal to submit

to a blood test when he is suspected of DUI. The fact that a person may not

have the ability to pay such a fee to restore his driving privilege simply does

not, contrary to Appellant’s assertion, convert that fee into a criminal sanction.

As the Commonwealth states in its appellate brief:

       That the civil penalty imposed by [Section 1547] would be a
       substantial burden on [some], and that [their] inability to operate
       a motor vehicle until such a time as [they] can pay the [restoration
       fee] would be disruptive to [their] life, is not determinative where
       the penalty is clearly civil in nature.

Commonwealth’s Brief at 9. Appellant has simply failed to provide proof, much

less the “clearest proof,” that the restoration fee legislatively categorized as a

civil penalty constitutes criminal punishment in its effect. Mullins, 905 A.2d

at 1017.5

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5Appellant also cites to Commonwealth v. Wall, 867 A.2d 578 (Pa. Super.
2005), to support his contention that the restoration fee amounts to criminal
punishment. In Wall, the appellant argued that the $200 assessment imposed
on defendants convicted of DUI with a blood alcohol concentration higher than
a certain percentage constituted increased punishment for purposes of
determining whether an ex post facto violation had occurred. This Court
agreed, holding that because the assessment imposed as part of the



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       Based on all of the above, we agree with the trial court that the

restoration fee is civil rather than criminal in nature. We therefore also agree

with the trial court that the DL-26B consent form warning Appellant of the civil

penalties he faced should he refuse to submit to a blood test, including the

restoration fee, complied with the dictates of Birchfield. As this was the sole

basis on which Appellant challenged the validity of his consent to the blood

test, the trial court properly denied Appellant’s motion to suppress the results

of that test.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/08/2020




____________________________________________


appellant’s sentence was a direct consequence of his guilty plea to the DUI
charge, it constituted increased punishment. In stark contrast to the
assessment in Wall, the restoration fee at issue here is imposed following a
license suspension pursuant to Section 1547, which is a separate civil
proceeding from a criminal DUI proceeding arising from the same incident.
See Boseman, 157 A.3d at 20.


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