J-S03018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHELLE GONZALEZ                          :
                                               :
                       Appellant               :   No. 1919 EDA 2017

               Appeal from the Judgment of Sentence May 12, 2017
              In the Court of Common Pleas of Northampton County
               Criminal Division at No(s): CP-48-CR-0003216-2016


BEFORE:      BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                                 FILED JUNE 21, 2018

        Michelle Gonzalez appeals from the judgment of sentence entered after

the trial court found her guilty of driving under the influence of alcohol (“DUI”).

Gonzalez argues evidence of her blood alcohol content (“BAC”) derived from

a blood sample should have been suppressed, as she believes she could not

have consented to the blood draw pursuant to Birchfield v. North Dakota,

136 S.Ct. 2160 (2016). After careful review, we affirm.

        When we review the denial of a suppression motion, “we must consider

only the evidence of the prosecution and so much of the evidence of the

defense as remains uncontradicted when read in the context of the record as

a whole.” Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007).


____________________________________________


   Former Justice specially assigned to the Superior Court.
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We are not bound by the suppression court’s legal conclusions and review the

suppression court’s application of the law to the facts de novo. See

Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015).

      In contrast, we defer to the suppression court’s findings of fact as it is

in the bailiwick of the suppression court to assess the credibility of witnesses

and the weight to be given to their testimony. See id. “It is within the

suppression court’s sole province as factfinder to pass on the credibility of

witnesses and the weight to be given to their testimony. The suppression court

is free to believe all, some or none of the evidence presented at the

suppression hearing.” Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.

Super. 2003) (citations omitted).

      Here, the essential facts are undisputed. Gonzalez was stopped and

arrested on suspicion of DUI. After being read a version of the DL-26 form

that was updated after Birchfield, Gonzalez consented to a blood draw. The

DL-26 form did not include any warning about criminal penalties associated

with refusing to consent to a blood draw. Gonzalez testified she consented to

the blood draw because she “was told that if I refused that my license would

be suspended for a year.” N.T., Suppression Hearing, 1/9/17, at 32.

      As it pertains to this case, the Birchfield Court found 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. In so finding, the Court

vacated the conviction of one of the petitioners who had consented to a blood


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draw after being informed by police that he must comply with the blood test,

or else face criminal penalties.

      At the time of this incident involving Appellant, refusal to submit to a

blood draw, paired with a later conviction for or plea to drunk driving under

any section of 75 Pa.C.S.A. § 3802, mandated higher penalties for the

defendant. See 75 Pa.C.S.A. § 3804. Penalties. In Commonwealth v.

Evans, 153 A.3d 323 (Pa. Super. 2016), this Court addressed the application

of § 3804 in the wake of Birchfield. In that case, the arresting officer warned

Evans, who was suspected of driving under the influence, that he would face

higher penalties for refusing a blood draw. Evans thereafter consented to a

blood draw, and was charged with driving under the influence. Evans later

challenged that consent as involuntary, and filed a motion to suppress. His

motion was denied, and he appealed his drunk driving conviction to this Court.

      Based on the Birchfield decision, the Evans panel concluded § 3804’s

enhanced penalties were unconstitutional. Thus, the officer’s warnings were

inaccurate, possibly affecting the voluntariness of his consent. Therefore, the

Court vacated the judgment of sentence and the suppression court’s order,

and remanded the case to the trial court for reevaluation of Evans’s consent.

See 153 A.3d at 331.

      Gonzalez acknowledges that Evans is factually distinguishable from this

case. Gonzalez concedes the updated DL-26 form did not provide an

inaccurate warning. Rather, she argues her consent was not knowing and


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voluntary, as the updated form “now provides [d]efendants less information.”

Appellant’s Brief, at 13.

       [T]he [d]efendant was not made aware of the criminal
       consequences of the decision to consent or refuse at a time when
       no court had said that the penalties associated with refusal of a
       blood draw were unenforceable. Obviously had the [d]efendant
       refused to provide the blood sample, he could have only been
       convicted under the general impairment section of the [DUI laws]
       and would have been subject to six months probation and no
       license suspension.

Id.

       This Court has recently held that the updated DL-26 form complies with

the mandates of Birchfield. See Commonwealth v. Robertson, ___ A.3d

___, ___, 2018 WL 2057000, at *6 (Pa. Super., filed May 3, 2018). The

suppression court therefore properly analyzed whether, under the totality of

the circumstances, Gonzalez’s consent was voluntary. See id.1

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/18




____________________________________________


1Gonzalez does not challenge the reasonableness of the suppression court’s
analysis of the totality of the circumstances.

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