J-A09002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
              v.                 :
                                 :
                                 :
    LISA ELDEN                   :
                                 :
                 Appellant       :             No. 619 WDA 2017
                                 :

                     Appeal from the Order January 24, 2017
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
                            CP-07-CR-0002103-2016


BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

MEMORANDUM BY BOWES, J.:                                FILED JUNE 27, 2018

       Lisa Elden appeals from the order denying her motion to suppress blood

alcohol content (“BAC”) test results obtained without a warrant during a

driving under the influence (“DUI”) investigation.1 We affirm.

       The parties stipulated to the information set forth in the affidavit of

probable cause, which we summarize as follows. On the evening of August 8,

2016, Appellant was operating a Nissan Armada in Altoona, Pennsylvania,

when she struck another vehicle. Officer Scott Hand of the Altoona Police

Department responded to the accident. He noticed the odor of an intoxicating

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1 Appellant timely moved the trial court to certify the interlocutory suppression
order for our review pursuant to 42 Pa.C.S. § 702(b). The trial court granted
the request, and Appellant timely filed a petition for permission to appeal in
this Court pursuant to Pa.R.A.P. 1311. We granted Appellant’s petition, per
curiam, and this timely appeal of the suppression order followed.
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beverage on Appellant’s person, and that her eyes were bloodshot. Appellant

agreed to perform field sobriety tests, which she failed.          Appellant was

arrested and transported to UPMC Altoona for BAC testing. The officer read

to Appellant the Pennsylvania Department of Transportation DL-26B waiver of

rights form (“the DL-26B form”), as revised in June 2016.2              Appellant

thereafter consented to have her blood drawn and signed the DL-26B form.

Test results indicated a BAC of .194%. See Criminal Complaint, 8/20/16, at

3.




____________________________________________


2Specifically, the DL-26B form that was read to Appellant provided in relevant
part as follows:

       It is my duty as a police officer to inform you of the following:

       1. You are under arrest for driving under the influence of alcohol
          or a controlled substance in violation of Section 3802 of the
          Vehicle Code.

       2. I am requesting that you submit to a chemical test of blood.

       3. If you refuse to submit to a blood test, your operating privileges
          will be suspended for at least 12 months. If you previously
          refused a chemical test or were previously convicted of driving
          under the influence, you will be suspended for up to 18 months.

       4. You have no right to speak to an attorney or anyone else before
          deciding whether to submit to testing. If you request to speak
          with an attorney or anyone else after being provided these
          warnings or you remain silent when asked to submit to a blood
          test, you will have refused the test.

DL-26B Form.


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      Appellant was charged with DUI—highest rate of alcohol. On October

20, 2016, she filed a motion to suppress the BAC test results on the basis

that, because no warrant was obtained to test her blood, her Fourth

Amendment rights were violated pursuant to Birchfield v. North Dakota,

136 S. Ct. 2160 (2016). The trial court conducted a suppression hearing,

after which Appellant filed a brief in support of her suppression motion. On

January 4, 2017, the trial court entered an order denying suppression. This

timely appeal followed.

      On appeal, Appellant raises the following issues for our review:

      1. Whether the new DL-26B form renders consent to blood draw
         voluntary and if it is in violation of Birchfield v. North
         Dakota, and Commonwealth v. Myers[, 164 A.3d 1162 (Pa.
         2017)]?

      2. Whether the new DL-26B form violates the Fourth Amendment
         right of the United States Constitution and Article 1, Section 8
         of the Pennsylvania Constitution[?]

Appellant’s brief at 4.

      Appellant’s issues challenge the trial court’s denial of her motion to

suppress the BAC test results on the ground that her consent was invalid. In

addressing a challenge to the denial of a suppression motion,

      Our standard of review . . . is limited to determining whether the
      factual findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. We are bound by
      the suppression court’s factual findings so long as they are
      supported by the record; our standard of review on questions of
      law is de novo. Where, as here, the defendant is appealing the
      ruling of the suppression court, we may consider only the evidence
      of the Commonwealth and so much of the evidence for the defense


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        as remains uncontradicted. Our scope of review of suppression
        rulings includes only the suppression hearing record . . ..

Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017) (citations

omitted).

        Preliminarily, we review the legal and administrative developments

regarding Pennsylvania’s DUI laws over the past two years. In June of 2016,

the Supreme Court of the United States in Birchfield 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. Birchfield, supra at 2185-86. This Court subsequently held

that the imposition of enhanced criminal penalties for failure to consent to a

blood    test   constituted   an   illegal   sentence   under   Birchfield.   See

Commonwealth v. Giron, 155 A.3d 635, 639 (Pa.Super. 2017).

        Within one week of the Birchfield decision, PennDOT revised the DL-

26 form to remove the warnings mandated by 75 Pa.C.S. § 3804(c), that

informed individuals suspected of DUI that they would face enhanced criminal

penalties if they refused to submit to a blood test. This revised DL-26B form,

which does not include warnings regarding enhanced criminal penalties,

complies with Birchfield.      Despite the creation of the DL-26B form in the

wake of Birchfield, numerous cases pending before trial and appellate courts

involved defendants who were given the warnings contained in the original

DL-26 form that erroneously informed them that they would face enhanced

criminal penalties if they refused to submit to a blood test.           This Court

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ultimately held that the DL-26 form warnings read to defendants prior to

PennDOT’s revision were partially inaccurate.        See Commonwealth v.

Evans, 153 A.3d 323, 331 (Pa.Super. 2016) (“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 [a]ppellant [that

refusal to submit to the test could subject appellant to more severe penalties

set forth in 75 Pa.C.S. § 3804(c)] was partially inaccurate.”). Thus, when

evaluating whether a defendant’s consent to a blood draw was voluntary or

involuntary, trial courts are required to consider the totality of the

circumstances, including whether the defendant was given inaccurate

information regarding the criminal consequences of refusing to submit to a

blood test. Id. (citing Birchfield, supra at 21860.

      On July 20, 2017, Governor Thomas W. Wolf signed into law Act 30 of

2017, which amended 75 Pa.C.S. § 3804 to comport with Birchfield.

Specifically, Act 30 provides for enhanced criminal penalties for individuals

who refuse to submit to blood tests only when police have obtained a search

warrant for the suspect’s blood. See 75 Pa.C.S. § 3804(c). Hence, from July

20, 2017, and thereafter, the DL-26B form conforms to statutory law.

However, for approximately the prior thirteen months, including at the time

of Appellant’s arrest, the DL-26B form warnings were consistent with the law

as interpreted by the Supreme Court of the United States and this Court, but

inconsistent with the unconstitutional provisions of Title 75.


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      With this background, we turn to Appellant’s issues, which we will

address together. Appellant argues that, despite the elimination in the DL-

26B form of any reference to the imposition of criminal penalties for refusing

to consent to a blood test, criminal penalties still attached to such a refusal

under then-existing Pennsylvania law because Appellant was arrested before

subsection 3804(c) was amended to comport with Birchfield. On this basis,

Appellant contends that her consent to the blood test was not voluntary

because she was not advised that criminal penalties would attach under

subsection 3804(c) if she was convicted of DUI after refusing the blood test.

      Appellant's arguments lack merit.    It is well established that when a

statute is deemed unconstitutional, it is ineffective for any purpose and it is

as if it were never enacted. See Commonwealth v. Wolfe, 140 A.3d 651,

66 (Pa. 2016); see also 16 C.J.S. CONSTITUTIONAL LAW § 265 (2016)

(reciting the general rule that an unconstitutional, non-severable statute is

“not a law, has no existence, is a nullity, or has no force or effect or is

inoperative” (footnotes omitted)). Thus, even though subsection 3804(c) had

not yet been amended at the time of Appellant’s arrest, it was nevertheless a

legal nullity pursuant to Birchfield.   See Commonwealth v. Smith, 177

A.3d 915, 921 (Pa.Super. 2017) (“To reiterate, the decision in Birchfield,

which was controlling law at the time of Appellant’s arrest, prohibited states

from imposing criminal penalties upon an individual’s refusal to submit to a

warrantless blood test.”).   Accordingly, the trial court correctly determined


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that the language contained in the revised DL-26B form was a correct

statement of the law in accordance with Birchfield when Officer Hand read it

to Appellant. See Trial Court Opinion, 1/4/17, at 22.

       Notably, Appellant does not contend that her consent was involuntary

for any reason other than that she was not advised of the criminal penalties

of subsection 3804(c) which were deemed unconstitutional by Birchfield.

Based on our review of the record, we agree with the trial court’s

determination that, under the totality of the circumstances, Appellant’s

consent was voluntary. See Trial Court Opinion, 1/4/17, at 24. We therefore

conclude that the trial court did not err in denying Appellant’s motion to

suppress the results of her BAC test.3

       Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2018



____________________________________________


3If, upon remand, Appellant is convicted of DUI, she cannot be sentenced
under the prior version of 75 Pa.C.S. § 3804, and will instead be sentenced
under the amended version of the statute, which complies with Birchfield.

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