             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jennifer Lynn Garland,                            :
                  Appellant                       :
                                                  :
                v.                                :    No. 733 C.D. 2017
                                                  :    SUBMITTED: January 5, 2018
Commonwealth of Pennsylvania,                     :
Department of Transportation,                     :
Bureau of Driver Licensing                        :


BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                            FILED: February 26, 2018


                Jennifer Lynn Garland (Licensee) appeals from an order of the Court
of Common Pleas of Dauphin County (trial court) denying her statutory appeal and
reinstating the one-year suspension of her operating privilege imposed by the
Department of Transportation, Bureau of Driver Licensing (Department) for
refusing to submit to chemical testing pursuant to Section 1547(b)(1)(i) of the
Vehicle Code (Code), as amended, 75 Pa. C.S. § 1547(b)(1)(i), commonly referred
to as the Implied Consent Law.1 On appeal, Licensee argues that we should reverse

   1
       Section 1547(b)(1)(i) proides, in pertinent part, as follows:
                        (1) If any person placed under arrest for violation of section
                3802 [relating to driving under influence of alcohol or controlled
                substance (DUI)] is requested to submit to chemical testing and
                refuses to do so, the testing shall not be conducted but upon notice
her suspension because the trooper by virtue of his use of the Department’s new DL-
26B form did not warn her in accordance with Section 1547(b)(2)(ii) of the Code,
75 Pa. C.S. § 1547(b)(2)(ii), that her refusal to submit to a blood test would subject
her to enhanced criminal penalties under Section 3804(c) of the Code, 75 Pa. C.S. §
3804(c). In addition, she maintains that by using the new DL-26B form before the
General Assembly amended the Code regarding enhanced criminal penalties in
accordance with Birchfield v. North Dakota, 136 S. Ct. 2160 (2016),2 the Department
usurped the role of the legislature such that her suspension should not stand.3 This
Court, however, has already rejected arguments that the Department and the police
had to continue to apply Section 1547(b)(2)(ii) until the General Assembly amended
it.   Accordingly, we affirm in accordance with Garlick v. Department of
Transportation, Bureau of Driver Licensing, ___ A.3d ___ (Pa. Cmwlth., No. 48
C.D. 2017, filed January 3, 2018) (en banc), another case in which the twelve-month
penalty provision found in Section 1547(b)(2)(i) was at issue.
               Following Birchfield but before the General Assembly’s July 2017
amendment of the Code, the following events occurred.                     While on patrol in


                by the police officer, the department 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
       The Department redrafted its old DL-26 form in response to Birchfield, wherein the Supreme
Court held that an individual’s Fourth Amendment right to be free from unreasonable searches and
seizures is implicated when he is subject to criminal penalties for refusing to submit to a
warrantless request for a blood test following a DUI arrest. Accordingly, a state may not impose
criminal penalties on a motorist for refusing a blood test requested under an implied consent law.
     3
       In July 2017, the General Assembly amended Sections 1547(b)(2)(ii) and 3804(c) of the
Code to clarify that enhanced criminal penalties could be imposed only for refusing to submit to
“chemical breath testing,” not blood testing. Sections 3 and 4 of the Act of July 20, 2017, P.L.
333. Section 3804(c) now provides that a licensee’s punishment may be enhanced for refusing
testing of his blood “pursuant to a valid search warrant.” 75 Pa. C.S. § 3804(c).


                                                2
September 2016, Pennsylvania State Trooper Zulick observed Licensee at 12:13
a.m. at her disabled vehicle and placed her under arrest for driving under the
influence of alcohol or a controlled substance. Upon arrival at the central booking
center, he requested that she submit to a chemical test of her blood and read her the
new DL-26B form, thereby warning her that the Department would administratively
suspend her driver’s license for at least twelve months for refusing to submit to a
blood test. He did not advise her, however, that she would be subject to enhanced
criminal penalties upon refusal. Licensee refused and, consequently, the Department
issued the notice of suspension at issue. Licensee appealed to the trial court, which
held a hearing at which only Trooper Zulick testified. At the hearing, counsel for
Licensee stipulated to the first element necessary for suspension4 and the trooper
credibly testified regarding the remaining elements.5                       Counsel for Licensee,
however, made an argument regarding the trooper’s use of the DL-26B form and his
omission of the no-longer enforceable enhanced criminal penalty language. The trial
court rejected Licensee’s argument and upheld the suspension. Her timely appeal
followed.

       4
           (January 26, 2017, Hearing, Notes of Testimony (N.T.) at 11; Reproduced Record (R.R.) at
5d.)
     In order to sustain a suspension of a licensee’s operating privilege under Section 1547, the
       5

Department must establish four criteria:
                   1) licensee was arrested for [DUI] . . . by a police officer who had
                   reasonable grounds to believe that he was operating or in actual
                   physical control of the movement of the vehicle while under the
                   influence;
                   2) licensee was requested to submit to chemical testing;
                   3) licensee refused to submit to chemical testing; and
                   4) licensee was specifically warned that refusal would result in the
                   suspension of his operating privilege.
Kollar v. Dep’t of Transp., Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010).


                                                    3
             As noted, this Court, en banc, has already rejected Licensee’s position.
Specifically, we stated: “Licensee’s argument that his license must be reinstated
because he was not warned that he would be subject to no longer constitutionally
permissible enhanced criminal penalties for refusing blood testing is unpersuasive.”
Garlick, ___ A.3d at ___, slip op. at 13. Further, characterizing the argument as one
that we could not countenance, we stated: “To put it simply, Licensee’s argument
encourages officers to violate licensees’ Fourth Amendment rights thereby
jeopardizing their criminal prosecutions in order to comply with Section
1547(b)(2)(ii) even though the criminal penalty in the warning is no longer
enforceable and, therefore, no longer a consequence of refusing a blood test.” Id.
             Moreover, as the trial court aptly observed: “[Licensee’s] appeal has
nothing to do with the enhanced-penalties provision of Section 1547, nor does it
have to do with the warning associated with the enhanced penalties that was
previously contained in the old DL-26 form.” (May 17, 2017, Opinion of Trial Court
at 8-9.) To that end, it determined that the Commonwealth parties did everything
required by Section 1547. Specifically, Trooper Zulick recited language from the
DL-26B form warning Licensee of a minimum twelve-month license suspension for
refusing to submit to chemical testing of her blood and, in response to the report of
her refusal, the Department advised her that it was suspending her license for that
time period. (Id. at 9.)

             Accordingly, we affirm.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge



                                         4
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jennifer Lynn Garland,               :
                  Appellant          :
                                     :
           v.                        :   No. 733 C.D. 2017
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing           :


                                ORDER


           AND NOW, this 26th day of February, 2018, the order of the Court of
Common Pleas of Dauphin County is hereby AFFIRMED.



                                   _____________________________________
                                   BONNIE BRIGANCE LEADBETTER,
                                   Senior Judge
