          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rachael D. Boseman,                         :
                            Appellant       :
                                            :
               v.                           :   No. 746 C.D. 2016
                                            :   Argued: February 7, 2017
Commonwealth of Pennsylvania,               :
Department of Transportation,               :
Bureau of Driver Licensing                  :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge


OPINION
BY JUDGE SIMPSON                            FILED: March 17, 2017

               Rachael D. Boseman (Licensee) appeals from an order of the Court of
Common Pleas of Delaware County (trial court)1 that denied her license suspension
appeal and reinstated the Department of Transportation’s (DOT) one-year
suspension of Licensee’s operating privilege under 75 Pa. C.S. §1547(b)(1)(i) for
refusing to submit to a chemical test of blood after being arrested for suspicion of
driving under the influence of alcohol or controlled substance (DUI), a violation of
75 Pa. C.S. §3802. Licensee contends the trial court erred in denying her appeal
where the evidence established that the arresting police officer did not provide
Licensee with a meaningful opportunity to submit to a second request for a
chemical blood test purportedly made at the police station. In addition, Licensee
asserts the U.S. Supreme Court’s holding in Birchfield v. North Dakota, ___ U.S.

      1
          The Honorable Kathrynann W. Durham presided.
___, 136 S. Ct. 2160 (2016), handed down during the pendency of this appeal,
applies here and requires that her license suspension appeal be sustained based on
the police officer’s failure to obtain a warrant to collect a blood sample. For the
reasons that follow, we affirm.


                                   I. Background
                      A. Trial Court’s April 2016 Decision
             In its April 2016 decision denying Licensee’s license suspension
appeal, the trial court found the following facts. In April 2014, Upper Providence
Township Police Officer Patrick Reynolds (Arresting Officer), while conducting a
traffic check using a speed timing device, noticed a black Chevrolet SUV
travelling 75 miles per hour (mph) in a 55 mph zone. Arresting Officer activated
his patrol car’s emergency equipment and began to follow the SUV.              While
following, Arresting Officer observed the SUV veer to the right side of the road
and abruptly stop. The abrupt stop nearly caused the officer to strike the rear of the
SUV. Seeing the driver’s open window, Arresting Officer used his loudspeaker to
advise the driver to pull to the shoulder of the road. The SUV, however, continued
north on Route 1 for about a minute before making a left turn onto Collins Drive,
where it stopped.


             Arresting Officer exited his vehicle and made contact with Licensee,
the SUV’s driver.     Licensee, however, would not look at the officer, acted
aggressively and used profanities when speaking to him. Licensee did provide the
officer with her driver’s license, registration and insurance information. When
Licensee did look at the officer, he noticed her eyes were bloodshot and glassy. In



                                          2
addition, her face was red and she slurred her speech. Arresting Officer also
noticed an odor of alcoholic beverages inside the SUV.


             Arresting Officer also testified that Licensee was rude and
uncooperative during the stop.     Licensee exited the vehicle and attempted to
perform three field sobriety tests, all of which she failed. Licensee also underwent
a preliminary portable breath test (PBT), which indicated the presence of alcohol.


             At that point, Arresting Officer placed Licensee under arrest for
suspicion of DUI. The officer then seated Licensee in the back of his patrol car
and gave her an overview of the warnings concerning refusal of chemical testing in
75 Pa. C.S. §1547(b)(1), commonly referred to as the Implied Consent Law.
Licensee, however, responded that she would not submit to a blood test without
talking to a lawyer.


             Arresting Officer then read Licensee the DL-26 form verbatim. After
the officer read Licensee the DL-26 warnings, she agreed to take a blood test.
However, while driving to the hospital, Licensee changed her mind and told the
officer to go “f” himself and said “I’m not giving blood, something along those
lines.”   Tr. Ct. Hr’g, 3/8/16, Notes of Testimony (N.T.), at 11; R.R. at 16a
(emphasis added). Arresting Officer interpreted that as a refusal.


             Arresting Officer then took Licensee to the Media Borough Police
Department headquarters for processing. Upon arriving, Arresting Officer was




                                         3
greeted by Media Police Officers Gavin and Leicht. Their department required
them to create their own incident report.


             Licensee refused to answer their questions and proceeded to tell the
officers her life story and that she had a “multi-million dollar deal that so happened
to happen that coming Monday ….” N.T. at 12; R.R. at 17a. Licensee also asked
the officers several questions regarding the implied consent warnings, which the
officers tried to answer. The officers then handed Licensee the DL-26 form, which
she read twice and signed. However, Arresting Officer testified that he did not
have any intentions of offering Licensee another opportunity to submit to testing
and that based upon the totality of the circumstances he deemed Licensee’s
conduct a refusal. To that end, Arresting Officer testified that at no time after
Licensee refused to take the blood test while they were in route to the hospital did
she state that she would take the test. See N.T. at 16-17; 30-32; R.R. at 21a-22a;
R.R. at 35a-37a.


             Media Police Officer Eric J. Gavin (Officer Gavin) also testified. He
recalled that upon arrival at the Media Police station, Licensee was very angry,
talked non-stop, and used a lot of expletives and obscene language. See N.T. at
48-49; R.R.at 53a-54a. When talking to Licensee, Officer Gavin noticed a heavy
odor of alcohol on her breath. Officer Gavin further testified Arresting Officer
handed Licensee a DL-26 form, which she signed. Officer Gavin never heard
Licensee agree to take a blood test.




                                            4
             Licensee testified on her own behalf. She recalled the field sobriety
tests, and that Arresting Officer asked her to submit to a blood test, but that he did
not give her any warnings or read a form to her. Licensee further testified that
Arresting Officer told her they were going to the hospital, and that she agreed to go
there. However, Arresting Officer did not tell her why they were going to the
hospital. See N.T. at 63-64; R.R. at 68a-69a.


             Licensee further testified she was confused and upset at the time and
asked Arresting Officer if she had a right to an attorney. Arresting Officer then
stated: “So you’re refusing?” and Licensee replied “refusing what? … I don’t
understand.” See N.T. at 65-67; R.R. at 70a-72a. Arresting Officer then asked her
if she did not want to go the hospital and she said no. Id.


             Licensee further stated that Arresting Officer first gave her the DL-26
form at the Media Police Station and told her to read it. Licensee read and signed
the DL-26 form. Licensee then texted an attorney friend and sought guidance. See
N.T. at 79-80; R.R. at 84a-85a. Licensee then asked the officers to take her to the
hospital. However, the officers responded: “No, it was too late.” See N.T. at 68-
69; R.R. at 73a-74a.


             In disposing of Licensee’s appeal, the trial court noted that once a
police officer provides the implied consent warnings to a motorist, the officer has
done all that is legally required to ensure the motorist is fully advised of the
consequences of failure to submit to chemical testing. All that is required is that
the officer read the warnings to the licensee, and that the licensee be given a



                                          5
meaningful opportunity to comply with the Implied Consent Law. The question of
whether a licensee refuses to submit to a chemical test is a legal one subject to
plenary review on appeal.        Anything substantially less than an unqualified,
unequivocal assent to submit to chemical testing constitutes a refusal. Further, a
licensee’s refusal need not be expressed in words; a licensee’s conduct may
constitute a refusal. Also, questions of witness credibility are for the trial court.
Tr. Ct., Slip Op., 4/20/16, at 9 (citations omitted).


             Ultimately, the trial court rejected Licensee’s argument that Arresting
Officer did not have reasonable grounds to believe Licensee was driving while
under the influence of alcohol. Id. at 10. The trial court further found that
Arresting Officer gave Licensee the implied consent warnings and that Licensee
refused to submit to chemical testing. Id.


                    B. Rule 1925 Opinion in Support of Order
             In a May 2016 opinion in support of its order denying Licensee’s
license suspension appeal, the trial court made the following determinations.


              1. Reasonable Grounds to Request Chemical Testing
             The trial court first determined that Arresting Officer had reasonable
grounds to conclude Licensee was operating a motor vehicle while under the
influence of alcohol. To sustain a suspension of a licensee’s operating privilege
under the Implied Consent Law, DOT must establish the licensee: (1) was arrested
for DUI by a police officer with reasonable grounds to believe the licensee was
operating a vehicle while under the influence of alcohol or a controlled substance;



                                           6
(2) was requested to submit to chemical testing; (3) refused to submit to chemical
testing; and, (4) was warned by the officer that her license will be suspended if she
refused to submit to chemical testing. Walkden v. Dep’t of Transp., Bureau of
Driver Licensing, 103 A.3d 431 (Pa. Cmwlth. 2014).


             Reasonable grounds exist when a person in the positon of a police
officer, viewing the facts and circumstances as they appeared at the time, could
have concluded that the licensee was operating the vehicle under the influence of
alcohol. Id. To find the officer had reasonable grounds to conclude the licensee
was operating the vehicle under the influence, the court must consider the totality
of the circumstances, including such factors as: the location of the vehicle; whether
the engine was running; the odor of alcohol; and, the behavior of the licensee (such
as staggering, swaying, lack of cooperation). Id.


             Here, as discussed above, Arresting Officer observed Licensee driving
at 75 mph in a 55 mph zone. When he followed Licensee, Arresting Officer
observed her veer to the right of the road and abruptly stop. Licensee then refused
Arresting Officer’s loudspeaker request to pull over. Rather, Licensee continued
north for about a minute before stopping.


             When Arresting Officer made contact with Licensee, she behaved
aggressively and used profanities. Her eyes were bloodshot and glassy, and her
face was red. Arresting Officer also noticed an odor of alcohol. Licensee failed
the three sobriety tests, and her PBT was positive for alcohol. Given the totality of
these circumstances, the trial court determined Arresting Officer had reasonable



                                         7
grounds to conclude Licensee was operating her vehicle under the influence of
alcohol. Walkden.


                            2. Consequences of Refusal
             The trial court also determined Arresting Officer properly advised
Licensee of the Implied Consent Law. Once a police officer provides the implied
consent warnings to a motorist, the officer has done all that is legally required to
ensure the motorist is fully advised of the consequences of failure to submit to
chemical testing. Dep’t of Transp., Bureau of Driver Licensing v. Scott, 684 A.2d
539 (Pa. 1996). All that is required is that the officer read the warnings to the
licensee, and that the licensee be given a meaningful opportunity to comply with
the Implied Consent Law. Sitoski v. Dep’t of Transp., Bureau of Driver Licensing,
11 A.3d 12 (Pa. Cmwlth. 2010). Anything substantially less than an unqualified,
unequivocal assent to submit to chemical testing constitutes a refusal. Id. Further,
a licensee’s refusal need not be expressed in words; a licensee’s conduct, such as
remaining silent, may constitute a refusal. Id.


             Notably, questions of witness credibility are for the trial court.
Bomba v. Dep’t of Transp. Bureau of Driver Licensing, 28 A.3d 946 (Pa. Cmwlth.
2011). Here, the trial court credited Arresting Officer’s testimony that he informed
Licensee of the consequences of refusing chemical testing. Upon arrest, Arresting
Officer seated Licensee in the rear of his patrol vehicle and explained the implied
consent warnings. Based upon her need to consult a lawyer, Licensee refused
Arresting Officer’s request for chemical testing. Arresting Officer then read the
DL-26 form to Licensee verbatim. Licensee then agreed to take the test, but



                                          8
changed her mind and again refused the testing before they reached the hospital. A
reading of the DL-26 form sufficiently apprises the driver, either hearing or
reading it, that if she refuses to submit to the chemical test, her operating privileges
will be suspended. Quigley v. Dep’t of Transp., Bureau of Driver Licensing, 965
A.2d 349 (Pa. Cmwlth. 2009). The fact that a particular motorist hearing the
warning may question its interpretation is not a sufficient basis upon which to
argue that the refusal was not knowing and conscious. Id. To that end, our
Supreme Court recognizes that a licensee’s subjective beliefs do not provide a
sufficient justification for refusing to comply with the Implied Consent Law.
Scott.


                  In short, an officer’s sole duty is to inform the motorist of the implied
consent warnings. Martinovic v. Dep’t of Transp., Bureau of Driver Licensing,
881 A.2d 30 (Pa. Cmwlth. 2005). An officer has no duty to make sure the licensee
understands the warnings regarding the inapplicability of her Miranda2 rights
against self-incrimination.


                  Here, the trial court determined Arresting Officer properly informed
Licensee regarding the implied consent warnings. The fact that Licensee asked
questions about her right to speak with an attorney prior to the test does not negate
Arresting Officer’s actions informing Licensee of the implied consent warnings.
Martinovic.         In other words, Licensee’s understanding of the implied consent
warnings is not determinative of whether she was properly informed of those
warnings. Id.

         2
             See Miranda v. Arizona, 384 U.S. 436 (1966).



                                                  9
                                3. Deemed Refusal
             The trial court further determined that Arresting Officer had no reason
to take Licensee to the hospital once she refused to take a blood test. Police
officers are not required to spend time either cajoling an arrestee or waiting for her
to change her mind. Grogg v. Dep’t of Transp., Bureau of Driver Licensing, 79
A.3d 715 (Pa. Cmwlth. 2013). Thus, Arresting Officer had no duty to convince
Licensee to take the test or wait for her to change her mind. Id.


                4. Later Conduct Does Not Vitiate Earlier Refusal
             The trial court credited Arresting Officer’s testimony that he read the
DL-26 form to Licensee in the patrol vehicle, and she agreed to submit to the test.
However, before they arrived at the hospital, Licensee changed her mind and again
refused to take the test.


             Thereafter, Licensee contacted an attorney seeking guidance.
Licensee then asked the officers if she could take the blood test. Arresting Officer
denied her request on the ground it was too late. In determining Licensee’s later
request to take a blood test did not vitiate her earlier refusal, the trial court
recognized that once a licensee refuses chemical testing, the refusal cannot be
vitiated by a later assent. Vora v. Dep’t of Transp., Bureau of Driver Licensing, 79
A.3d 743 (Pa. Cmwlth. 2013).


                       5. Licensee Refused Chemical Testing
             In conclusion, the trial court determined the evidence established that
Licensee refused to undergo chemical testing after being advised of the



                                         10
requirements of the Implied Consent Law. On the way to the hospital after being
read the DL-26 form, Licensee stated she would not submit to the blood test.


                           6. Birchfield v. North Dakota
             In June 2016, following the trial court’s final order in this case, the
U.S Supreme Court handed down its decision in Birchfield. The States of North
Dakota and Minnesota impose criminal penalties on motorists who refuse to
submit to a blood test following an arrest for DUI. In Birchfield, the Court
employed a multi-factor balancing test in weighing the differences between breath
and blood tests; the Court concluded that blood tests are much more intrusive,
under a Fourth Amendment analysis, than breath tests. Ultimately, the Court
reasoned that the well-established search incident to arrest exception to the Fourth
Amendment’s warrant requirement does not permit warrantless blood tests absent
consent or exigent circumstances. “There must be a limit to the consequences to
which motorists may be deemed to have consented by virtue of a decision to drive
on public roads.” Birchfield, ___ U.S. at ___, 136 S. Ct. at 2185. However,
Birchfield does not prohibit warrantless, but less intrusive, requests for breath tests
incident to arrest for DUI. The Court noted that current breath tests are nearly as
reliable as blood tests, thereby lessening the need for the more intrusive blood
tests.


             Most importantly here, the Birchfield Majority recognized the Court’s
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. Petitioners do not question the constitutionality of those



                                          11
laws, and nothing we say here should be read to cast doubt on them.”            Id.
(emphasis added).


                                     II. Issues
            Licensee presents two primary issues. First, Licensee contends the
trial court erred in denying her license suspension appeal where the evidence
established that Arresting Officer did not provide Licensee with a meaningful
opportunity to comply with a second request to submit to the chemical test
purportedly offered at the police station.        Second, Licensee asserts the U.S.
Supreme Court’s holding in Birchfield, decided during the pendency of this appeal,
should be applied to her appeal. Licensee argues Birchfield requires that her
appeal be sustained based on the police officer’s failure to obtain a warrant to
collect a blood sample from her.


                                   III. Discussion
                            A. Implied Consent Law
            Section 1547 of the Vehicle Code relevantly provides (with emphasis
added):

             (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,
            blood or urine 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:

             (1) in violation of section 1543(b)(1.1) (relating to
            driving while operating privilege is suspended or

                                         12
            revoked), 3802 (relating to driving under the influence of
            alcohol or a controlled substance) ….


                                      ****

            (b) Suspension 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, [DOT] shall
            suspend the operating privilege of the person as follows:

             (i) Except as set forth in subparagraph (ii), for a period
            of 12 months.

                                      ****

             (2) It shall be the duty of the police officer to inform the
            person that:

             (i) the person’s operating privilege will be suspended
            upon refusal to submit to chemical testing; and

             (ii) if the person refuses to submit to chemical 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. §1547(a),(b).


                            B. Meaningful Opportunity
                                   1. Argument
            Licensee first contends that she initially agreed to be transported to a
hospital for a blood test after Arresting Officer read her the DL-26 form in the




                                         13
patrol vehicle. However, while in route to the hospital, Arresting Officer diverted
to the Media Police station instead.


             Licensee further asserts that at the police station, Arresting Officer
provided her with an additional opportunity to submit to a blood test. To that end,
Licensee points out Arresting Officer testified that he noted in his incident report
that “Licensee still refused a blood test however.” N.T. at 30-32; R.R. at 35a-37a
(emphasis added).     Licensee contends this notation indicated that the officers
offered her another opportunity to submit to a blood test and that she still refused.
Otherwise, the notation that Licensee still refused a blood test would not have been
necessary.


             Therefore, Licensee argues the trial court misunderstood what
happened in determining Licensee attempted to vitiate her earlier refusal by a later
request that she be permitted to take a blood test. Rather, Licensee asserts, the
police officers vitiated her earlier refusal by renewing or offering a new
opportunity to submit to chemical testing.       To that end, Licensee points out
Arresting Officer testified that it would be within the officer’s discretion to again
offer her an opportunity to take a blood test. N.T at 44; R.R. at 49a.


             In support of her position, Licensee cites Marmo v. Department of
Transportation, 543 A.2d 236 (Pa. Cmwlth. 1988) (abrogation recognized in
Olbrish v. Department of Transportation, Bureau of Driver Licensing, 619 A.2d
397 (Pa. Cmwlth. 1992)), where this Court stated in dicta that where a police
officer gratuitously offers a licensee a second opportunity, after a prior refusal, to



                                         14
take one of the chemical tests in 75 Pa. C.S. §1547(a), the prior refusal is waived.
Licensee recognizes that in Olbrish this Court declined to apply the waiver
language in Marmo.          However, she requests that we reconsider the waiver
language here where the police officers provided her another opportunity to review
the DL-26 warnings. To that end, Licensee observes, in Olbrish we stated in a
footnote that a waiver of the first refusal may occur where there is a refusal and the
police then offers a second test, which the licensee successfully completes. See id.
at 399 n.3.        Although Licensee did not successfully complete the test here, she
argues she was denied a meaningful opportunity to do so.


                                       2. Analysis
              To begin our analysis, we note that is not the province of this Court on
appellate review to make new or different findings of fact. Reinhart v. Dep’t of
Transp., Bureau of Driver Licensing, 954 A.2d 761 (Pa. Cmwlth. 2008). Rather,
we may only review the trial court’s findings to determine if they are supported by
substantial competent evidence. Id. If the trial court’s findings are supported by
the evidence, we are precluded from disturbing them. Id. In addition, we must
view the evidence in a light most favorable to the party that prevailed before the
trial court. Id.


              We also recognize that determinations as to witness credibility and the
weight assigned to the evidence are matters solely within the province of the trial
court as fact-finder. Id. The trial court may accept or reject the testimony of any
witness, either in whole or in part. Id.




                                           15
             Here, the trial court credited Arresting Officer’s testimony and did not
find that Arresting Officer offered Licensee a second opportunity to submit to a
blood test after her initial refusal in the patrol vehicle. As discussed above, after
Licensee failed the sobriety tests and the PBT, Arresting Officer placed Licensee
under arrest for suspicion of DUI and gave her an overview of the implied consent
warnings. Tr. Ct., Slip Op., 4/19/16, F.F. Nos. 17-21; N.T. at 7-9; R.R. at 12a-14a.
Arresting Officer then read the DL-26 form to Licensee verbatim. F.F. No. 22;
N.T. at 10-11; R.R. at 15a-16a. Licensee agreed to take the blood test. F.F. No. 23;
N.T. at 10-11; R.R. at 15a-16a. A few minutes later, however, Licensee changed
her mind and stated she would not submit to a blood test. F.F. No. 24; N.T. at 11,
26-29, 39-40; R.R. at 16a, 31a-35a, 44a-45a. At that point, Arresting Officer
considered Licensee’s actions a refusal. F.F. No. 25; N.T. at 11, 16, 29-30; R.R. at
16a, 21a, 34a-35a.


             Notably, Arresting Officer testified that even at the Media Police
station, Licensee never said she would take the blood test after her refusal in the
patrol vehicle. F.F. No. 30; N.T. at 30-32; R.R. at 35a-37a. Officer Gavin also
testified that he never heard Licensee agree to take a blood test. F.F. No. 42; N.T.
at 59; R.R. at 64a.


             In sum, the trial court found that Arresting Officer read Licensee the
DL-26 form in the back of the patrol vehicle after placing her under arrest for DUI.
After initially consenting to take the blood test, Licensee changed her mind and
refused before they arrived at the hospital. Clearly, Arresting Officer afforded
Licensee a meaningful opportunity to take the blood test. Walkden.



                                         16
             Arresting Officer testified he deemed Licensee’s conduct in the patrol
vehicle as a refusal. Therefore, Arresting Officer also stated that Licensee never
had another opportunity to submit to a blood test after her initial refusal.
Consequently, we reject Licensee’s request to essentially make findings of fact
different from those of the trial court and find that Arresting Officer offered
Licensee another opportunity to take the blood test. Unmistakably, the credible
evidence shows he did not.


                           C. Applicability of Birchfield
                                    1. Argument
             Licensee also contends the U.S. Supreme Court’s holding in
Birchfield, decided during the pendency of this appeal, should be applied to her
appeal. She argues Birchfield requires that her appeal be sustained based on the
police officer’s failure to obtain a warrant to collect a blood sample.


             Licensee points out that the Fourth Amendment to the U.S.
Constitution, and Article I, Section 8 of the Pennsylvania Constitution, guarantee
Pennsylvanians the right to be secure in their persons from unreasonable searches
and seizures. Essentially, Licensee contends that the U.S. Supreme Court’s recent
decision in Birchfield renders Pennsylvania’s Implied Consent Law, 75 Pa. C.S.
§1547(b), facially unconstitutional under the Fourth Amendment.


             Licensee acknowledges that Pennsylvania, unlike North Dakota or
Minnesota, does not have a separate criminal refusal statute. However, Licensee
asserts 75 Pa. C.S. §1547(b), permits the Commonwealth to impose criminal



                                          17
penalties, such as mandatory sentence enhancement and increased fines, on a
person who refuses to undergo a chemical test. These civil and criminal penalties,
set forth in the DL-26 form, apply to individuals arrested for DUI. 75 Pa. C.S.
§1547(b)(2). In light of the enhanced criminal penalties, Licensee asserts that
when a Pennsylvania police officer arrests a motorist for DUI, the officer must
procure a search warrant for a blood test unless exigent circumstances exist.
Birchfield.


              Here, Licensee argues, no such exigent circumstances exist. The rate
at which alcohol metabolizes in the blood is no longer sufficient to provide police
officers with an exigent circumstance. Missouri v. McNeely, ___ U.S. ___, 133
S.Ct. 1552 (2013). Consequently, Licensee contends her refusal to submit to a
chemical test of blood, after being advised of the enhanced criminal penalties,
cannot stand under Birchfield.


              Finally, Licensee acknowledges she did not raise a constitutional issue
before the trial court. However, as noted, the trial court’s opinion pre-dated the
Supreme Court’s decision in Birchfield. Licensee asserts the general rule followed
in Pennsylvania is that the courts apply the law in effect at the time of the appellate
decision. Blackwell v. State Ethics Comm’n, 589 A.2d 1094 (Pa. 1991) (citing
Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983)). “This principle applies with
equal force to both civil and criminal cases.” Blackwell, 589 A.2d at 1099. This
means we observe the principle that a party whose case is pending on direct appeal
is entitled to the changes in the law which occur before final judgment. Id.




                                          18
             In response, DOT contends Birchfield is distinguishable because it is
not a crime to refuse chemical testing under Pennsylvania’s Implied Consent Law.
Further, before the enhanced criminal penalties may be imposed, the licensee or
motorist must be found guilty beyond a reasonable doubt of DUI. Here, Licensee
was not convicted of the DUI charge. In Commonwealth v. Carley, 141 A.3d 1287
(Pa. Super. 2016), the Superior Court, citing Apprendi v. New Jersey, 530 U.S. 466
(2000), recognized that any fact that increases the maximum penalty for DUI,
except a prior conviction, requires proof beyond a reasonable doubt. Anything less
would violate due process. Id.


             However, a license suspension stemming from a refusal to submit to
chemical testing is a separate administrative proceeding. Bashore v. Dep’t of
Transp., Bureau of Driver Licensing, 27 A.3d 272 (Pa. Cmwlth. 2011).
Accordingly, the lawfulness of a Pennsylvania DUI arrest is irrelevant to a
determination of whether the licensee’s operating privileges were properly
suspended under the civil Implied Consent Law. In addition, the U.S. Supreme
Court held in Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357
(1998), that evidence obtained illegally in a search did not have to be excluded in
an administrative proceeding. As such, the U.S. Supreme Court has not extended
the federal exclusionary rule to proceedings other than criminal trials. Id.


                                     2. Analysis
             To begin, we emphasize that a license suspension stemming from a
refusal to submit to chemical testing is a separate administrative proceeding from a




                                         19
criminal DUI proceeding arising out of the same incident. Bashore. It is not a
crime to refuse chemical testing under Pennsylvania’s Implied Consent Law.


            In the present case, the DL-26 form read and signed by Licensee
included the following warnings:

            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 [DUI], you will be
            suspended for up to 18 months. In addition, if you refuse
            to submit to the chemical test, and you are convicted of
            violating Section 3802(a)(1) (relating to impaired
            driving) of the Vehicle Code, then because of your
            refusal, you will be subject to more severe penalties set
            forth in Section 3804(c) (relating to penalties) of the
            Vehicle Code. These are the same penalties that
            would be imposed if you were convicted of driving
            with the highest rate of alcohol, which include a
            minimum of 72 consecutive hours in jail and a
            minimum fine of $1,000, up to a maximum of five years
            in jail and a maximum fine of $10,000.

            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 chemical testing, you will have
            refused the test.

Commonwealth Ex. C-1; R.R. at 113a (emphasis by underline added).


            Clearly, the DL-26 form advised Licensee that if she was convicted of
DUI, she would be subject to enhanced civil and criminal penalties because of her
refusal. The DL-26 form did not advise Licensee that it is a crime to refuse to



                                       20
submit to chemical testing. By its own language, Birchfield does not apply to
implied consent laws that merely impose civil penalties. To that end, the Court
stated: “Petitioners do not question the constitutionality of those laws, and nothing
we say here should be read to cast doubt on them.” Birchfield, ___ U.S. at ___,
136 S.Ct. at 2185 (emphasis added).


             Rather, Birchfield involved three licensees.      Birchfield, the first
licensee, was criminally prosecuted in North Dakota for refusing a warrantless
blood test. The U.S. Supreme Court reversed his conviction, noting that Birchfield
was threatened with an unlawful search, and that the State failed to present any
evidence of exigent circumstances justifying a warrantless request for a blood test.


             Bernard, the second licensee, was criminally prosecuted for refusing a
warrantless breath test in Minnesota. The Birchfield Court upheld that conviction,
noting the Fourth Amendment does not require officers to obtain a warrant prior to
requesting a breath test.


             Beylund, the third licensee, submitted to a blood test, which yielded a
blood alcohol content of 0.250%. As a result, Beylund’s license was suspended for
two years.    On appeal, the North Dakota Supreme Court rejected Beylund’s
argument that his consent was coerced by the officer’s warning that a refusal to
consent to a blood test, itself, would be a crime. The Birchfield Court reversed,
noting the State could not constitutionally compel a blood test given the Fourth
Amendment. As a result, the Supreme Court remanded for a determination in
accord with Schneckloth v. Bustamonte, 412 U.S. 218 (1973), as to whether, under



                                         21
the totality of the circumstances, Beylund voluntarily consented to the blood test or
whether that evidence should be suppressed.


              Unlike Birchfield, the present case involves a civil license suspension
appeal, not a criminal proceeding. To that end, we recognize the parties indicated
at oral argument that Licensee was not convicted of the DUI charge.


              As discussed above, Birchfield addressed the constitutionality of a
State statute that made it a crime to refuse a warrantless blood test after being
arrested for DUI. In short, although Birchfield may have some impact in criminal
DUI proceedings in Pennsylvania where enhanced penalties based on refusal of a
blood test are imposed, such is not the case before us in this civil license
suspension appeal under the Implied Consent Law. Consequently, Licensee’s
Fourth Amendment challenge to the Implied Consent Law fails. Birchfield.


                                      IV. Conclusion
             For the above reasons, we discern no error or abuse of discretion in the
trial court’s order denying Licensee’s license suspension appeal. Accordingly, we
affirm. Therefore, we grant DOT’s request to reinstate its one-year suspension of
Licensee’s operating privilege pursuant to 75 Pa. C.S. §1547(b)(1)(i) within a
reasonable time.3



                                           ROBERT SIMPSON, Judge

       3
         We note the trial court granted Licensee’s unopposed motion for a supersedeas pending
the outcome of her appeal to this Court.



                                             22
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rachael D. Boseman,                    :
                        Appellant      :
                                       :
            v.                         :   No. 746 C.D. 2016
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


                                    ORDER

            AND NOW, this 17th day of March, 2017, for the reasons stated in the
foregoing opinion, the order of the Court of Common Pleas of Delaware County is
AFFIRMED.        Further, the Department of Transportation, Bureau of Driver
Licensing, is hereby directed to REINSTATE the one-year suspension of
Appellant Boseman’s operating privilege within a reasonable time.




                                     ROBERT SIMPSON, Judge
