J-S24024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellant              :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 JOSHUA EDWARD STOUDT                     :   No. 1985 MDA 2017


           Appeal from the Order Entered, November 28, 2017,
              in the Court of Common Pleas of Berks County,
           Criminal Division at No(s): CP-06-CR-0001703-2017.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED JUNE 28, 2018

     The Commonwealth appeals from the order granting Joshua Stoudt’s

motion to suppress the test results of a warrantless blood draw. We reverse.

     The facts of this case as stipulated by the Commonwealth and adopted

by Stoudt are as follows:

        On December 27, 2016 at 7:25 p.m., Trooper Vincent Lopez
        responded to the area of a motor vehicle accident in
        Ruscombmanor Township, Berks County. When the trooper
        arrived at the scene, he observed a vehicle parked on the
        front lawn of a home close to the front porch stoop. Stoudt
        was the driver of the vehicle. Upon speaking to Stoudt,
        Trooper Lopez noticed a faint odor of alcohol on his breath.
        An empty prescription pill bottle was on the floor at his feet.
        The trooper spoke to the eyewitness who followed Stoudt,
        and suspecting that Stoudt was impaired, he conducted field
        sobriety testing. In all three tests, Stoudt displayed signs
        of impairment.     Upon questioning, Stoudt admitted to
        having a few drinks, but he denied consuming prescription
        medication or other drugs. Stoudt explained that the empty
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         pill bottle was used to          transport   over-the-counter
         medication when needed.

         Trooper Lopez arrested Stoudt for suspicion of DUI and
         transported him to St. Joseph’s Hospital for blood testing.
         Trooper Lopez read Stoudt the DL-26B form verbatim,
         Stoudt signed it and he submitted to blood testing. The
         trooper did not threaten, force, or coerce Stoudt into signing
         the form, and there was no mention of jail time or additional
         penalties. This testing was negative for blood alcohol
         content, but revealed the presence of amphetamine,
         methamphetamine, Clonazepam and its metabolite.

Commonwealth’s Brief at 6. (citations omitted).

      Stoudt filed a pretrial motion, seeking to suppress the warrantless blood

draw based on the decision in Birchfield v. North Dakota, 579 U.S. __, 136

S. Ct. 2160 (2016), and a writ of habeas corpus. A suppression hearing was

held September 8, 2017, where the suppression court granted Stoudt’s motion

with respect to the blood test results.

      The Commonwealth raises the following two issues on appeal:

         1. Did the trial court err in suppressing evidence pursuant
         to Birchfeld v. North Dakota, where the DL-26B Form was
         modified to remove the objectionable language regarding
         the enhanced penalties for a blood testing refusal, rendering
         the consent to the blood draw voluntary?

         2. Did the trial court err in suppressing the evidence
         pursuant to Birchfield v. North Dakota, where the totality
         of the circumstances indicates that the consent to the blood
         draw was voluntary?

Commonwealth Brief at 4.

      We begin our analysis by stating our Court's well-settled standard of

review for a suppression ruling. Our review is limited to determining whether

the record supports the findings of fact of the suppression court and whether

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the legal conclusions drawn from those findings are correct. Commonwealth

v. Mistler, 912 A.2d 1265, 1268 (Pa. 2006). We are bound by the factual

findings of the suppression court, which are supported by the record, but we

are not bound by the suppression court's legal rulings, which we review de

novo. Commonwealth v. Snyder, 963 A.2d 396, 400 (Pa. 2009).

     Our scope of review is limited to the evidence presented at the

suppression hearing. Commonwealth v. Ennels, 167 A.3d 716 (Pa. Super.

2017). Because Stoudt prevailed on the issue before the suppression court,

we are limited to considering Stoudt’s evidence and so much of the

Commonwealth’s evidence, only to the extent that it does not contradict the

context of the record as a whole. Id. at 718-19.

     Both the Fourth Amendment of the United States Constitution to the

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

Constitution   prohibit   unreasonable    searches   and   seizures.    “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. Evans, 153 A.3d 323, (Pa.

2016) (citations omitted). If an officer performs a blood-draw search without

a warrant, it is “unreasonable and therefore constitutionally impermissibile,

unless an established exception applies.        Exceptions to the warrant

requirement include the consent exception.     For the consent exception to

apply, the consent must be voluntary.” Id.




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      In granting Stoudt’s motion, the trial court concluded that Stoudt did

not voluntarily consent to the blood-draw, because at the time Stoudt

underwent the blood-draw, the Motor Vehicle Sections had not yet been

amended to cure the constitutional defects.     The trial court reasoned that

“while [Stoudt] was not informed of the enhanced criminal penalties when

Trooper Vincente Lopez read the DL-26B to him, a citizen is presumed to know

the laws of this Commonwealth.” In essence, the trial court reasoned that

Stoudt was presumed to know of § 3804 as it appeared in the Vehicle Code at

the time of his arrest. Consequently, he would have weighed the criminal

sanctions provided by that law in deciding whether to consent to the blood-

draw, thereby rendering his consent involuntary. We disagree.

      The issues in this case stem from the United States Supreme Court’s

decision in Birchfield. In that case, the defendant was arrested for a DUI.

Prior to a warrantless blood-draw, the arresting officer informed the defendant

that refusing the blood-draw had criminal consequences.           Upon being

informed of the criminal sanctions, the defendant consented to the blood-

draw. Id. at 2172. The defendant 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 Supreme Court of the United States agreed, holding that

motorists could not be deemed to have consented to submit to a blood test

on pain of committing a criminal offense. Id. at 2185-86.

      The critical inquiry following Birchfield is whether the officer conveyed

the threat of enhanced criminal penalties at the time of the arrest when

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seeking a warrantless blood-draw. Since the decision of Birchfield, this Court

has decided several cases consistent with this inquiry. See Commonwealth

v. Ennels, 167 A.3d 716, 724 (Pa. Super. 2017) (holding that “police may not

threaten enhanced punishment for refusing a blood test in order to obtain

consent; whether that enhanced criminal punishment is … ultimately imposed

is irrelevant to the question of whether the consent was valid.”);

Commonwealth v. Smith, 177 A.3d 915 (Pa. Super. 2017) (holding that

denial of suppression was proper when the arresting officer never told the

defendant that he would be subjected to greater criminal penalties if he

refused the blood-draw).

     Our most recent decision in Commonwealth v. Johnson, No. 1198

MDA 2017, 2018 Pa. Super. LEXIS 528 * (Pa. Super. May 21, 2018), is similar

to Stoudt’s case. In Johnson, the defendant was arrested for a DUI. Id. at

*1. The defendant had existing knowledge that § 3804 provided for increased

penalties upon refusal to consent to a blood-draw. Id. at *2. The officer,

however, used a DL-26 form that did not contain any reference to enhanced

penalties for refusing to consent to the blood-draw.     Id. Additionally, the

officer never told the defendant that she would be subject to enhanced

criminal penalties. Id. There, because § 3804 was not yet amended, the trial

court in Johnson, believed the driver should have been notified of a change

in the law prior to giving her consent.     We reversed and held that the

defendant’s   consent   to   the   blood-draw   was   voluntary   under   these

circumstances, and that the defendant’s ignorance of Birchfield, which

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rendered the threat of enhanced penalties illegal, including those on the books

at § 3804 was irrelevant. Id. at *8.

      As in Johnson, the arresting officer in Stoudt’s case never told Stoudt

that he would be subject to enhanced criminal penalties if he refused to

consent to a blood-draw.     Also, the DL-26B form used in Stoudt’s case

accorded with Birchfield, because it did not threaten additional criminal

sanctions for refusal. The coerced consent by the police in Birchfield was not

present in Stoudt’s case.

      The trial court overlooked the maxim that the Constitution of the United

States is the supreme Law of the Land.       U.S. Const. Art. VI, Cl. 2.   The

constitutional pronouncements of the United States Supreme Court have

immediate and national consequence. On the day Birchfield was announced,

it became the new law of the land. And, because Stoudt was presumed to

know the law, it was constructively imputed that he was aware that §

3804(c)’s additional criminal sanctions were without force or effect of law.

      The fact that the Vehicle Code had not yet been amended prior to

Stoudt’s arrest was irrelevant. The Supreme Court’s constitutional decision in

Birchfield became the reigning law, which Stoudt was presumed to know.

Johnson, supra. Because the arresting officer did not convey any threat of

enhanced criminal penalties during Stoudt’s arrest, and the DL-26B did not

threaten criminal sanctions for refusing to submit to a blood-draw, Stoudt’s

consent was voluntary. The court was incorrect in concluding otherwise.




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      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2018




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