J-A07005-19

                                 2019 PA Super 159

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 LORI KLINER KRENZEL                       :
                                           :
                     Appellant             :   No. 2049 EDA 2018

        Appeal from the Judgment of Sentence Entered June 12, 2018
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0000445-2017


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

OPINION BY OLSON, J.:                                  FILED MAY 20, 2019

      Appellant, Lori Kliner Krenzel, appeals from the judgment of sentence

entered on June 12, 2018, following her bench trial conviction for driving

under the influence of alcohol – highest rate (DUI) pursuant to 75 Pa.C.S.A.

§ 3802(c).     On appeal, Appellant challenges the trial court’s denial of her

motion to suppress. For the reasons that follow, we are constrained to vacate

the judgment of sentence, reverse the order denying suppression, and remand

for a new trial.

      The trial court summarized the facts and procedural history of this case

as follows:

      On November 14, 2016, Appellant was pulled over by Officer Kyle
      Maye and Officer [Robert] Gilbert as the result of her erratic
      driving behavior that was called in by another motorist. Officer
      Maye observed Appellant to have glassy and bloodshot eyes, her
      speech was slow and soft, and her movements in the vehicle were
      slow and sluggish. Officer Gilbert discovered two beer bottles in
      the passenger side area of Appellant’s vehicle. Officer Maye
      requested that Appellant exit the vehicle, at which time he

____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07005-19


       detected the odor of alcohol. He then conducted a series of field
       sobriety tests, the results of which indicated that Appellant was
       under the influence of alcohol and/or controlled substances.
       Officer Maye asked if Appellant was willing to submit to a blood
       test. Appellant consented. She was then placed under arrest and
       transported to Chester County Hospital where her blood was
       drawn within the appropriate two-hour limit.

       During the stop, Officer Maye did not draw a weapon. Officer
       Maye did not advise Appellant that she would face enhanced
       penalties if she refused [a blood draw]. In her pre-trial motion to
       suppress, Appellant argued that as the result of a previous arrest
       for DUI in 2013, she understood that refusal of the blood draw
       would subject her to adverse criminal penalties. Appellant’s basis
       for consent was not communicated to Officer Maye; therefore,
       Officer Maye had no knowledge that her consent was based upon
       Appellant’s outdated understanding of Pennsylvania law. Officer
       Maye neither provided Appellant with misleading or false
       information in order to get Appellant to consent nor did he use
       any threat of force or coercion.

       Appellant filed a [m]otion to [s]uppress on May 1, 2017. Following
       a hearing held on March 22, 2018, the [trial] court denied the
       motion by [o]rder dated March 23, 2018. A bench trial was held
       on April 4, 2018. A verdict was delivered on April 18, 2018, finding
       [] Appellant guilty of [DUI] in violation of 75 Pa.C.S.A. § 3802(c).
       Appellant’s sentencing was deferred for consideration of the
       Intermediate Punishment Program (IPP). On June 12, 2018,
       Appellant was sentenced to IPP which included 15 days of
       incarceration, 75 days of electronic home confinement and
       probation, community service[,] and a fine.

Trial Court Opinion, 8/3/2018, at 1-3 (record citations omitted). This timely

appeal resulted.1

       On appeal, Appellant presents the following issue for our review:


____________________________________________


1  Appellant filed a notice of appeal on July 10, 2018. On July 17, 2018, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 3, 2018.

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   1. Did not the [trial] court err in denying Appellant’s motion to
      suppress, under the federal and state constitutions, the test
      results of a warrantless blood draw where Appellant’s alleged
      consent to the blood draw was not voluntary under the totality of
      the circumstances?

Appellant’s Brief at 4.

        In developing her claim, Appellant points out that her blood draw

constituted a police search, that police drew her blood without a warrant, and,

therefore, the blood draw was only valid if her consent were voluntary. Id.

at 9.    Appellant maintains that her consent was not voluntary for several

reasons. First, Appellant posits that she had a previous arrest for DUI in 2013

and, at that time, refusal of a blood test subjected DUI offenders to more

severe criminal penalties. Id. at 11-12. Appellant argues that her consent

for the blood draw at issue here was based on her prior knowledge of

Pennsylvania law and that her “subjective [belief] regarding her ability to

refuse to consent to a search” should be considered as part of the totality of

the circumstances in evaluating the voluntariness of her consent. Id. at 12.

Next, Appellant contends that because she was in police custody at the time

of the requested blood draw, her consent was not voluntary. Id. at 14-16.

Finally, Appellant argues that her consent was involuntary, as the police never

advised her of her right to refuse the blood draw. Id. at 16-19.

        We adhere to the following standards:

        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


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      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 [trial 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) (internal

citation omitted).

      Initially, we set forth fundamental law with regard to warrantless blood

draws and consent as follows:

      In Birchfield [v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160
      (2016)], the Supreme Court of the United States 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). Within one week
      of that decision, [the Pennsylvania Department of Transportation]
      revised the [standard consent form used by police, known as the]
      DL–26 form[,] to remove the warnings mandated by 75 Pa.C.S.A.
      § 3804 that theretofore informed individuals suspected of DUI that
      they would face enhanced criminal penalties if they refused to
      submit to a blood test in order to comply with Birchfield. [The]
      revised form [is] known as Form DL–26B[.]

                                      ***

      This Court subsequently held that [] enhanced criminal penalties
      [imposed] for failure to consent to a blood draw constituted an
      illegal sentence because of Birchfield. See Commonwealth v.
      Giron, 155 A.3d 635, 639 (Pa. Super. 2017).




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      On July 20, 2017, Governor Thomas W. Wolf signed into law Act
      30 of 2017, which amended 75 Pa.C.S.A. § 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.A. § 3804(c). Hence, from July 20, 2017
      onwards the DL–26B form conforms to the revised statutory law.

Commonwealth v. Venable, 200 A.3d 490, 495 (Pa. Super. 2018) (original

brackets omitted).

      With this backdrop in mind, we turn to Appellant’s claim that her consent

was involuntary, and thus, invalid.        In examining whether consent is

voluntary, we note:

      In determining the validity of a given consent, the Commonwealth
      bears the burden of establishing that a consent is the product of
      an essentially free and unconstrained choice—not the result of
      duress or coercion, express or implied, or a will overborne—under
      the totality of the circumstances. The standard for measuring the
      scope of a person's consent is based on an objective evaluation of
      what a reasonable person would have understood by the exchange
      between the officer and the person who gave the consent. Such
      evaluation includes an objective examination of the maturity,
      sophistication and mental or emotional state of the defendant.
      Gauging the scope of a defendant's consent is an inherent and
      necessary part of the process of determining, on the totality of the
      circumstances presented, whether the consent is objectively valid,
      or instead the product of coercion, deceit, or misrepresentation.

      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.

Id. at 497 (citations omitted).



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      First, Appellant argues that the trial court erred by not considering her

previous knowledge of DUI law and her subjective belief regarding her ability

to refuse consent.    This Court has squarely rejected claims arguing that

“awareness of pre-Birchfield enhanced criminal penalties for refusing a blood

draw render[s a] blood draw involuntary[,]” having opined as follows:

      [I]t is not necessary that the police completely review changes in
      the law, from the time of a motorist's previous arrest or
      DUI-related schooling until the motorist's next traffic stop. [An
      appellant’s] ignorance of the most recent Supreme Court
      decisional law did not impose upon the police [] an affirmative
      duty to provide her with an update on criminal procedure prior to
      requesting a blood-draw. Neither our state nor the federal
      constitution compels our police officers to serve as road-side law
      professors.

      Given the foregoing, [an appellant’s] personal failure to realize
      that the Supreme Court's issuance of Birchfield struck down
      § 3804(c)'s enhanced criminal penalties is irrelevant. […Believing]
      that our Commonwealth's enhanced penalties remained in full
      force and effect [… was a m]isconception [] predicated upon a
      fundamentally flawed view of our federalism.

Id. at 496-497 (Pa. Super. 2018), citing Commonwealth v. Johnson, 188

A.3d 486, 491 (Pa. Super. 2018) (finding that Johnson's ignorance of

constitutional law did not render her consent involuntary); Commonwealth

v. Miller, 186 A.3d 448, 452 (Pa. Super. 2018) (“Repeat DUI offenders, owing

to past legal transgressions, are not entitled to a benefit that would be

unavailable to first-time DUI offenders. ... The absurdity of [such an]

argument is self-evident.”). Here, Appellant’s subjective belief about the state

of the law regarding enhanced penalties was irrelevant. We reject Appellant’s

reliance on her subjective, erroneous misunderstanding of constitutional law,


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J-A07005-19



as that did not render her consent involuntary. See Venable, Johnson, and

Miller. As such, the first portion of Appellant’s argument fails.

      Next, Appellant asserts that police conducted the blood draw while she

was in custody and they never informed her of the right to refuse consent

under 75 Pa.C.S.A. § 1547(b)(2). Id. at 14-18. We consider custodial status,

but it is not dispositive.

      Finally, we consider Appellant’s last contention, wherein she asserts that

a police officer’s failure to inform her of the right of refusal precluded a finding

of voluntariness. Section 1547 is relevant to our disposition of this claim and

provides, in pertinent part:

       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:

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J-A07005-19



           (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
                    $2,000; and

           (ii)     if the person refuses to submit to chemical breath
                    testing, upon conviction or plea for violating
                    section 3802(a)(1), the person will be subject to
                    the penalties provided in section 3804(c) (relating
                    to penalties).

75 Pa.C.S.A. § 1547 (emphasis added).

     Our Supreme Court examined Section 1547 in Commonwealth v.

Myers, 164 A.3d 1162 (Pa. 2017), a case wherein the defendant who was

arrested on suspected DUI charges was unconscious in the hospital when a

police officer read him consent forms and then directed hospital personnel to

conduct a blood draw. The Myers Court determined:

     [O]nce a police officer establishes reasonable grounds to suspect
     that a motorist has committed a DUI offense, that motorist “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.” 75
     Pa.C.S.A. § 1547(a). Notwithstanding this provision, Subsection
     1547(b)(1) confers upon all individuals under arrest for DUI an
     explicit statutory right to refuse chemical testing, the invocation
     of which triggers specified consequences. See 75 Pa.C.S.A.
     § 1547(b)(1) (“If any person placed under arrest for DUI is
     requested to submit to chemical testing and refuses to do so, the
     testing shall not be conducted[.]”).

     Under this statutory scheme, a motorist placed under arrest for
     DUI has a critical decision to make. The arrestee may submit to a
     chemical test and provide the police with evidence that may be
     used in a subsequent criminal prosecution, or the arrestee may
     invoke the statutory right to refuse testing, which: (i) results in a
     mandatory driver's license suspension under 75 Pa.C.S.A.
     § 1547(b)(1); (ii) renders the fact of refusal admissible as

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J-A07005-19


      evidence in a subsequent DUI prosecution pursuant to 75
      Pa.C.S.A. § 1547(e); and (iii) authorizes heightened criminal
      penalties under 75 Pa.C.S.A. § 3804(c) if the arrestee later is
      convicted of DUI. In very certain terms, [the Supreme] Court
      has held that, in requesting a chemical test, the police
      officer must inform the arrestee of the consequences of
      refusal and notify the arrestee that there is no right to
      consult with an attorney before making a decision. See
      [Com., Dept. of Transp., Bureau of Traffic Safety v.]
      O'Connell, 555 A.2d [873,] 877–878 (Pa. 1989). “An arrestee
      is entitled to this information so that his choice to take a
      chemical test can be knowing and conscious.” Id. at 878.
      The choice belongs to the arrestee, not the police officer.

Myers, 164 A.3d at 1170–1171 (some case citations, original brackets, and

footnote omitted) (emphasis added). The Myers Court further noted that 75

Pa.C.S.A. § 1547 expressly “states that, ‘[i]t shall be the duty of the police

officer’ to inform the arrestee of the consequences of refusal.” Id. at 1175

n.12, citing 75 Pa.C.S.A. § 1547(b)(2).    Our Supreme Court held that “[t]his

unambiguous statutory command leaves no doubt regarding the obligations

of the police officer requesting the arrestee’s submission to a chemical test.”

Id. (citation omitted).

      Here, the trial court determined:

      In the case at bar, argument at the suppression hearing
      established that Officer May never warned that Appellant would
      be subjected to criminal penalties upon her refusal to submit to a
      blood draw. Appellant was not coerced by the drawing of weapons
      or threats made against her by Officer Maye. There is no dispute
      as to these facts. Officer Maye did not read any part of the
      DL-26 implied consent form to Appellant. He simply asked
      her for consent and she freely gave it. Argument at the
      hearing, however, established that Appellant was informed during
      a prior DUI arrest (prior to the Supreme Court’s decision in
      Birchfield) that her refusal would result in adverse criminal


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J-A07005-19


      penalties. Appellant did not communicate her belief to Officer
      Maye, who could have corrected this erroneous understanding.

      Based upon the totality of the circumstances of the interaction
      between Officer Maye and Appellant on the night in question, the
      [trial] court determined that Appellant’s consent was voluntary,
      knowing and intelligent.       […The trial court’s] standard for
      measuring the scope of a person’s consent is based on an
      objective evaluation of what a reasonable person would have
      understood by the exchange between the officer and the person
      who gave the consent. Objectivity is key and the court must use
      a ‘reasonable person’ standard.     It is a slippery slope when the
      court and law enforcement are required to consider the subjective
      views of each individual defendant, i.e., the thoughts inside their
      head, to determine whether consent is voluntary.            Such a
      proposition requires getting into the mind of the defendant, at the
      time of the arrest and when the individual is impaired, to
      subjectively assess her knowledge and understanding of the law.
      This approach would inevitably give rise to a host of other
      problems.

      Since Appellant was not advised of any adverse criminal
      consequences or increased penalties for failing to submit to a
      blood test, Birchfield does not apply.            Appellant never
      communicated that her consent was based upon her belief that
      criminal penalties could be imposed for her refusal; as a result,
      Officer Maye could not have known. Unless she was given
      misleading or false information by the arresting officer (which she
      was not) or subject to some sort of coercion, Appellant’s consent
      is deemed to be knowing and voluntary. As a result, the trial court
      denied the motion to suppress. This was neither an error of law
      nor an abuse of discretion.

Trial Court Opinion, 8/3/2018, at 5-6 (some emphasis added; some emphasis

in original; record and legal citations omitted).

      Although the trial court correctly rejected Appellant’s subjective

understanding of Pennsylvania law as grounds for invalidating her consent,

we conclude that, in view of Section 1547 and Myers, the trial court erred as

a matter of law in finding Appellant’s consent to a blood draw was voluntary.


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J-A07005-19



In determining whether Appellant’s consent was voluntary, the trial court

considered the various factors as set forth above and concluded that while

Appellant was in custody and not specifically informed of her rights regarding

consent, police did not coerce her and she fully cooperated with police,

answering all questions and complying with field sobriety tests.       However,

there is no dispute that the police asked Appellant to go to the hospital for a

chemical blood test and she complied without receiving a recitation of her

rights under DL-26B or Section 1547 or confirming her consent by signature.

See N.T. 3/20/2018, at 7. Because Officer Maye was statutorily obligated to

inform Appellant of her right to refuse chemical testing and the consequences

arising therefrom and failed to effectuate those precautions, Appellant did not

make a knowing and conscious choice of whether to submit to the blood draw.

The choice belonged to Appellant, not Officer Maye. See Myers. Thus, while

the trial court is correct that the officers did not mislead Appellant, the record

is equally clear that they did not convey the information necessary for her to

make an informed decision.2 As such, we find that the trial court erred as a

matter of law in denying suppression.



____________________________________________


2 To be clear, in this case, no information regarding the consequences of
refusal was conveyed to the suspect. In such circumstances, the rule in Myers
of mandatory warnings should be followed. This is in contrast to a situation
in which given warnings differ from those conveyed during prior DUI
encounters. In those cases, given warnings generally prevail and reliance on
previous police interactions does not weigh against voluntariness. See
Venable, Johnson, and Miller.

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J-A07005-19



     Judgment of sentence vacated. Order denying suppression reversed.

Case remanded for a new trial. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/19




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