          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jessica Givens,                              :
                     Appellant               :
                                             :
             v.                              : No. 1203 C.D. 2017
                                             : SUBMITTED: February 2, 2018
Commonwealth of Pennsylvania,                :
Department of Transportation,                :
Bureau of Driver Licensing                   :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE CEISLER                                   FILED: March 6, 2018

      Jessica Givens (Licensee) appeals from the August 3, 2017 Order of the Court
of Common Pleas of Dauphin County (Trial Court) dismissing Licensee’s appeal
from a one-year suspension of her operating privilege imposed by the
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing (DOT), under Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. §
1547(b)(1)(i).1 On appeal, Licensee argues that because the police officer who

      1
         Section 1547 of the Vehicle Code is commonly known as the Implied Consent Law.
Section 1547(b)(1)(i) of the Implied Consent Law states:

      If any person placed under arrest for a violation of section 3802 [of the Vehicle
      Code (relating to driving under the influence of alcohol or a controlled substance)]
      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, [DOT] shall suspend the
      operating privilege of the person . . . for a period of 12 months.
arrested Licensee did not warn her that she would be subject to enhanced criminal
penalties if she refused a chemical test of her blood, as required by former Section
1547(b)(2)(ii) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(2)(ii),2 DOT should not
have suspended her operating privilege. We affirm.
       On January 11, 2017, DOT notified Licensee that her operating privilege was
suspended for one year due to her failure to submit to a blood test on December 24,
2016. Licensee appealed to the Trial Court.
       The Trial Court held a hearing on March 28, 2017. At the hearing, the parties
stipulated to the following facts. On December 24, 2016, Trooper Ricardo Carrera
had reasonable grounds to suspect that Licensee had operated or had actual physical
control of a vehicle in violation of Section 3802 of the Vehicle Code.3 N.T., 3/28/17,
at 3-4. Trooper Carrera asked Licensee to provide a sample of her blood, but she
refused. Id. at 5-6. Trooper Carrera then read to Licensee the warnings contained
in DOT’s Implied Consent Form DL-26B (Form DL-26B), which stated:



75 Pa. C.S. § 1547(b)(1)(i).

       2
          At the time of Licensee’s arrest, Section 1547(b)(2)(ii) of the Implied Consent Law
required a police officer to inform a licensee that “if the [licensee] refuses to submit to chemical
testing, upon conviction or plea for violating section 3802(a)(1) [of the Vehicle Code], [he or she]
will be subject to the penalties provided in section 3804(c) (relating to penalties).” Former 75 Pa.
C.S. § 1547(b)(2)(ii) (emphasis added).

        Section 1547(b)(2)(ii) now requires an officer to inform a licensee that “if the [licensee]
refuses to submit to chemical breath testing, upon conviction or plea for violating section
3802(a)(1), [he or she] will be subject to the penalties provided in section 3804(c) (relating to
penalties).” 75 Pa. C.S. § 1547(b)(2)(ii) (eff. July 20, 2017) (emphasis added).

       3
         75 Pa. C.S. § 3802 (providing that “an individual may not drive, operate or be in actual
physical control of the movement of a vehicle” while under influence of alcohol or controlled
substance).


                                                 2
       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 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, you will be suspended for up to 18 months.
       4. You have no right to speak with 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.

Id. at 4-6; Ex. C-1, Item No. 2.4
       DOT created Form DL-26B in response to the United States Supreme Court’s
decision in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), which held that state
laws imposing criminal penalties on motorists for refusing to submit to a blood test
are unconstitutional.5 Form DL-26B eliminated the prior form’s warning pertaining
to enhanced criminal penalties for refusal to submit to a blood test. See Trial Ct.
Op., 8/3/17, at 3-4.




       4
         Although Licensee did not sign Form DL-26B, she does not dispute that Trooper Carrera
read the form to her verbatim. N.T., 3/28/17, at 3-4.

       5
         In Birchfield, the Supreme Court concluded that “motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal offense.” 136 S. Ct. at 2186.
The Supreme Court clarified, however, that its “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.” Id. at 2185 (emphasis added); accord Boseman v. Dep’t of
Transp., Bureau of Driver Licensing, 157 A.3d 10, 21-22 (Pa. Cmwlth.), app. denied, 170 A.3d
996 (Pa. 2017) (holding that Birchfield does not apply to civil license suspensions).


                                                3
       On August 3, 2017, the Trial Court dismissed Licensee’s appeal and reinstated
the suspension of her operating privilege. Licensee timely appealed to this Court.6
       On appeal, Licensee asserts that Trooper Carrera’s failure to warn her of the
possibility of enhanced criminal penalties for refusing a blood test violated former
Section 1547(b)(2)(ii) of the Implied Consent Law and, therefore, DOT failed to
satisfy its burden of proof. Licensee contends that until the General Assembly
amended Section 1547(b)(2)(ii) in July 2017, Trooper Carrera was required to give
Licensee the enhanced-penalty warning, even after Birchfield.
       To suspend a licensee’s operating privilege for refusing to submit to chemical
testing, DOT must prove that:

       (1) Licensee was arrested for violating Section 3802 of the Vehicle
       Code by a police officer who had “reasonable grounds to believe” that
       Licensee was operating or was in actual physical control of the
       movement of a vehicle while in violation of Section 3802 (i.e., while
       driving under the influence); (2) Licensee was asked to submit to a
       chemical test; (3) Licensee refused to do so; and (4) Licensee was
       specifically warned that a refusal would result in the suspension of his
       operating privileges and would result in enhanced penalties if he was
       later convicted of violating Section 3802(a)(1).

Martinovic v. Dep’t of Transp., Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa.
Cmwlth. 2005). Once DOT satisfies its burden of proof, the burden then shifts to
the licensee to prove that he or she was incapable of making a knowing and
conscious refusal. Hinkel v. Dep’t of Transp., Bureau of Driver Licensing, 715 A.2d
556, 558 (Pa. Cmwlth. 1998).



       6
         Our scope of review is limited to determining whether the Trial Court committed an error
of law or abused its discretion and whether the Trial Court’s factual findings are supported by
substantial evidence. Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 954 A.2d 761,
765 n.3 (Pa. Cmwlth. 2008).
                                               4
      Here, the parties stipulated that: Trooper Carrera had reasonable grounds to
arrest Licensee for driving under the influence; Trooper Carrera asked Licensee to
submit to a blood test; Licensee refused; and Trooper Carrera read to Licensee the
implied consent warnings in Form DL-26B verbatim.              N.T., 3/28/17, at 3-6.
Moreover, Licensee does not allege that she was incapable of making a knowing and
conscious refusal. Thus, the only issue before this Court is whether DOT’s omission
of the enhanced-penalty warning from Form DL-26B violated former Section
1547(b)(2)(ii) of the Implied Consent Law.
      Our Court recently addressed this same issue in Garlick v. Dep’t of Transp.,
Bureau of Driver Licensing, 176 A.3d 1030 (Pa. Cmwlth. 2018) (en banc). In
Garlick, as in this case, the licensee argued that Form DL-26B failed to conform
with the requirements of Section 1547(b)(2)(ii) because it did not include a warning
that his refusal to submit to a blood test would subject him to enhanced criminal
penalties. 176 A.3d at 1035. We noted that “the language contained in [former]
Section 1547(b)(2)(ii) was mandatory at the time [the officer] requested that
Licensee submit to a blood test.” Id. at 1036. After Birchfield, however, enhanced
criminal penalties for refusing a blood test are no longer constitutionally permissible.
Consequently, at the time of his arrest, “Licensee could not, as a matter of
constitutional law, be subject to such penalties. Stated simply, enhanced criminal
penalties were not a consequence of Licensee’s refusing the requested blood test.”
Id.
      In rejecting the licensee’s claim that the implied consent warnings in Form
DL-26B were legally insufficient, we explained:

      Licensee’s argument is, in effect, that because the General Assembly
      did not immediately amend Section 1547(b)(2)(ii), DOT and the police
      had to continue to apply Section 1547(b)(2)(ii). However, the effect of
      Birchfield and the Superior Court cases that followed was to render the
                                           5
      criminal penalties warned of in Section 1547(b)(2)(ii) as applied to
      blood testing unenforceable and to effectively sever that section from
      the rest of the Vehicle Code. See Section 1925 of the Statutory
      Construction Act of 1972, 1 Pa. C.S. § 1925 (“[t]he provisions of every
      statute shall be severable” with certain exceptions not applicable here);
      Commonwealth v. Batts, 163 A.3d 410, 441 (Pa. 2017) (emphasis
      added) (stating that “[i]f a provision of a statute is invalidated for any
      reason . . . a court must sever it from the remaining, valid portion of
      the statute”).

Id. Therefore, we held that the officer’s failure to warn the licensee that his refusal
to submit to a blood test would subject him to enhanced criminal penalties, as
required by Section 1547(b)(2)(ii) at the time of the arrest, did not mandate reversal
of his suspension. Id. at 1037-38; see also Negovan v. Dep’t of Transp., Bureau of
Driver Licensing, 172 A.3d 733, 738 (Pa. Cmwlth. 2017) (upholding license
suspension where police officer intentionally omitted enhanced-penalty warning
when he read implied consent warnings to licensee who was arrested six days after
Birchfield decision).
      For the reasons set forth in Garlick, we conclude that DOT satisfied its burden
of proving that Licensee was accurately warned of the only constitutionally
permissible consequence of refusing a blood test at the time of her arrest: the
suspension of her operating privilege.
      Next, Licensee asserts that Section 1547(b)(2)(ii) of the Implied Consent Law
is not severable from the remainder of the statute and, thus, DOT’s omission of the
enhanced-penalty warning from Form DL-26B contravened the statute’s legislative
purpose. As discussed above, however, this Court rejected a similar claim in Garlick
and concluded that DOT’s omission of the warning post-Birchfield was consistent
with the statute’s legislative intent.   See 176 A.3d at 1036 (recognizing that
legislative purpose of Section 1547(b)(2) is to inform licensee of consequences of
refusal to submit to chemical test “so that he [or she] can make a knowing and
                                          6
conscious choice”) (quotation omitted); see also Nardone v. Dep’t of Transp.,
Bureau of Driver Licensing, 130 A.3d 738, 747 (Pa. 2015) (stating that Implied
Consent Law also “serves the important purpose of notifying the driving community
that motorists noncompliant with the proper administration of our chemical testing
laws will be removed from our roadways swiftly through the civil penalty of license
suspension”). Accordingly, we conclude that the Trial Court properly dismissed
Licensee’s appeal and reinstated the suspension of her operating privilege.
      Order affirmed.



                                      _________________________________
                                      ELLEN CEISLER, Judge




                                         7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jessica Givens,                      :
                  Appellant          :
                                     :
            v.                       : No. 1203 C.D. 2017
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing           :



                                  ORDER

      AND NOW, this 6th day of March, 2018, the Order of the Court of Common

Pleas of Dauphin County, dated August 3, 2017, is hereby affirmed.



                                     __________________________________
                                     ELLEN CEISLER, Judge
