J.J. Spellman v. PennDOT, Bureau of Driver Licensing ( 2018 )


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  •             IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Jesse James Spellman,                         :
    Appellant         :
    :
    v.                       :   No. 124 C.D. 2017
    :   Argued: November 15, 2017
    Commonwealth of Pennsylvania,                 :
    Department of Transportation,                 :
    Bureau of Driver Licensing                    :
    BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
    HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE ROBERT SIMPSON, Judge
    HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE MICHAEL H. WOJCIK, Judge
    HONORABLE JOSEPH M. COSGROVE, Judge1
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE COHN JUBELIRER                              FILED: January 3, 2018
    Jesse James Spellman (Licensee) appeals from the January 11, 2017 Order of
    the Court of Common Pleas of Erie County (common pleas) denying his appeal from
    an 18-month suspension of his operating privilege imposed by the Commonwealth
    of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT),
    under Section 1547(b)(1)(ii) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(ii),
    1
    This decision was reached before the conclusion of Judge Cosgrove’s service with this
    Court on December 31, 2017.
    commonly referred to as the Implied Consent Law.2 On appeal, Licensee argues that
    because the officer who stopped Licensee did not warn him that he would be subject
    to enhanced criminal penalties if he refused a chemical test of his blood, as then
    ostensibly required by Section 1547(b)(2)(ii) of the Vehicle Code, 75 Pa. C.S. §
    1547(b)(2)(ii), DOT should not have suspended his operating privilege.3 For the
    reasons set forth in Garlick v. Department of Transportation, Bureau of Driver
    2
    Section 1547(b)(1)(ii) reads, in pertinent part, as follows:
    (1) If any person placed under arrest for a violation of section 3802 [relating to
    driving under influence of alcohol or 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, the department shall suspend
    the operating privilege of the person as follows:
    ...
    (ii) for a period of 18 months if any of the following apply:
    (A) The person’s operating privileges have previously been suspended under
    this subsection.
    (B) The person has, prior to the refusal under this paragraph, been sentenced
    for:
    (I)    an offense under section 3802;
    (II) an offense under former section 3731
    (III) an offense equivalent to an offense under subclause (I) or (II); or
    (IV) a combination of the offenses set forth in this clause.
    75 Pa. C.S. § 1547(b)(1)(ii).
    3
    Former Section 1547(b)(2)(ii) provided as follows:
    It shall be the duty of the police officer to inform the person that: . . . (ii) if the
    person refuses to submit to chemical testing, upon conviction or plea for violating
    section 3802(a)(1) [of the Vehicle Code], the person will be subject to the penalties
    provided in section 3804(c) [of the Vehicle Code] (relating to penalties).
    Former 75 Pa. C.S. § 1547(b)(2)(ii).
    2
    Licensing, __ A.3d __, (Pa. Cmwlth., No. 48 C.D. 2017, filed Jan. 3, 2018) (en banc),
    slip op. at 10-11,13, we affirm.4
    The following facts are not in dispute. DOT informed Licensee that his
    operating privilege was suspended for 18 months as a result of his failure to submit
    to a chemical test of his blood on August 2, 2016. Licensee appealed to common
    pleas pursuant to Section 1550(a) of the Vehicle Code, 75 Pa. C.S. § 1550(a), and a
    hearing was held.5
    At the hearing, the parties stipulated to the following: DOT met its burden of
    establishing that the police officer who arrested Licensee had reasonable grounds to
    believe he was driving a motor vehicle under the influence of alcohol (DUI); that the
    officer requested Licensee to submit to a chemical test of his blood; he refused to do
    so; and the officer warned Licensee about the consequences of refusing. In warning
    4
    We have set forth the legal background leading up to and following Licensee’s arrest in
    the companion appeal, Garlick, __ A.3d at __, slip op. at 2-5, which we summarize here. Shortly
    before Licensee was stopped, the United States Supreme Court held in Birchfield v. North Dakota,
    
    136 S. Ct. 2160
    , 2184-85 (2016), the following: the search-incident-to-arrest exception to the
    warrant requirement does not justify a warrantless search of a motorist’s blood; implied consent
    under an implied consent law does not justify the warrantless search of a motorist’s blood; and a
    state may not impose criminal penalties on a motorist for refusing a blood test requested under an
    implied consent law. After Licensee’s arrest, the Superior Court held, based on Birchfield, that it
    is “partially inaccurate” to warn a licensee that he may be subject to enhanced criminal penalties
    if he refuses a blood test requested under the Implied Consent Law. Commonwealth v. Evans, 
    153 A.3d 323
    , 331 (Pa. Super. 2016). Therefore, the results of such a blood test must be suppressed,
    and an enhanced sentence based on a licensee’s refusal to submit to such a blood test must be
    vacated. Commonwealth v. Giron, 
    155 A.3d 635
    , 640 (Pa. Super. 2017). In short, “in the absence
    of a warrant or exigent circumstances justifying a search, a defendant who refuses to provide a
    blood sample when requested by police is not subject to . . . enhanced [criminal] penalties.” 
    Id. In July
    2017, the General Assembly amended Sections 1547(b)(2)(ii) and 3804(c) of the Vehicle
    Code, 75 Pa. C.S. § 3804(c), so as to eliminate enhanced criminal penalties for refusing to submit
    to a blood test and the warning associated therewith. Section 4 of Act of July 20, 2017, P.L. 333.
    5
    Section 1550(a) provides that “[a]ny person . . . whose operating privilege has been . . .
    suspended . . . by the department shall have the right to appeal to the court vested with jurisdiction
    of such appeals . . . .” 75 Pa. C.S. § 1550(a).
    3
    Licensee about the consequences of refusing a test of his blood, the officer read from
    DOT Form DL-26, which was marked “USE THIS FORM FOR BLOOD ONLY.”
    (Reproduced Record (R.R.) at 18a, 43a.) Form DL-26 read as follows:
    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 chemical 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 chemical testing, you will have
    refused the test.
    (R.R. at 43a.) The parties agreed that the Form DL-26 read to Licensee did not
    contain a warning that Licensee would be subject to enhanced criminal penalties if
    he refused to submit to a test of his blood, even though, at that time, the language of
    Section 1547(b)(2)(ii) ostensibly still required it. (R.R. at 18a.)
    Counsel for DOT explained during the hearing that following the decision of
    the United States Supreme Court in Birchfield v. North Dakota, 
    136 S. Ct. 2160
    (2016), the Pennsylvania District Attorneys Association and a number of county
    district attorneys requested that DOT remove the enhanced criminal penalty warning
    from Form DL-26 when requesting a blood test out of concern that, if given, the
    warning would jeopardize potential DUI convictions. DOT agreed to remove the
    warning.
    4
    Licensee argued that notwithstanding the decision in Birchfield, the General
    Assembly had not amended Section 1547(b)(2)(ii) and, therefore, the enhanced
    criminal penalty warning for refusing a blood test still had to be given to a licensee.
    Since Licensee was not given that warning, his license could not be suspended.
    Common pleas denied Licensee’s appeal and reinstated his 18-month
    suspension, concluding that DOT met its burden of proof and, Licensee, in
    opposition, failed to prove that he was incapable of making a knowing and conscious
    refusal.   (Common Pleas Order, Jan. 11, 2017.)          In its opinion pursuant to
    Pennsylvania Rule of Appellate Procedure 1925, Pa. R.A.P. 1925, common pleas
    concluded that in light of Birchfield and subsequent Pennsylvania law applying
    Birchfield, the Form DL-26 read to Licensee was accurate. (Common Pleas Op. at
    9, Mar. 6, 2017). Common pleas recounted that following Birchfield, the Superior
    Court held that, “in the absence of a warrant or exigent circumstances,” a licensee
    could not be subject to enhanced criminal penalties for refusing a blood test. (Id. at
    8 (quoting Commonwealth v. Giron, 
    155 A.3d 635
    , 640 (Pa. Super. 2017).)
    Therefore, common pleas concluded, a police officer cannot warn a licensee about
    the potential of an enhanced criminal penalty for refusing a blood test because to do
    so would be “unduly coercive and deceivingly inaccurate.” (Id. at 9.) The officer
    here, common pleas held, performed his duty by limiting his warning to Licensee
    that Licensee’s refusal to submit to a blood test would result in a suspension of
    Licensee’s operating privilege, and that was what DOT imposed when Licensee
    refused. (Id. at 9-10.)
    5
    On appeal,6 Licensee argues that, at the time the Form DL-26 was read to him,
    it did not conform with the mandate contained in Section 1547(b)(2)(ii) in that he
    was not informed that his refusal would subject him to enhanced criminal penalties
    and, therefore, his operating privilege should not have been suspended. Licensee
    further argues that Birchfield has no bearing on civil license suspension proceedings,
    and Pennsylvania law has distinguished between civil license suspension
    proceedings and criminal proceedings, indicating that the latter does not affect the
    former.
    This Court addressed these same issues in the companion case of Garlick, __
    A.3d at __, slip op. at 8-9. For the reasons set forth in Garlick, __ A.3d at __, slip
    op. at 10-11, 13, we conclude that DOT met its burden of proving that Licensee was
    specifically warned about the consequences of refusing a blood test, which is the
    suspension of his license, and, to the extent Licensee argues otherwise, he did not
    prove that his refusal was not knowing and conscious. See Martinovic v. Dep’t of
    Transp., Bureau of Driver Licensing, 
    881 A.2d 30
    , 34 (Pa. Cmwlth. 2005) (noting
    that in order for DOT to meet its prima facie burden establishing its entitlement to
    suspend a licensee’s operating privilege, DOT must show, inter alia, that the
    licensee was “specifically warned” about the consequences of refusing a chemical
    test). Post-Birchfield, enhanced criminal penalties for refusing a blood test requested
    under the Implied Consent Law are no longer constitutionally permissible and, thus,
    not a consequence of such a refusal. Even though the General Assembly did not
    immediately amend Section 1547(b)(2)(ii) following Birchfield, the effect of
    6
    Our standard of review is limited to determining whether common pleas committed an
    error of law, whether common pleas abused its discretion, or whether the findings of fact 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).
    6
    Birchfield was to render the 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 (“The provisions of every statute shall be severable” with
    certain exceptions not applicable here). Therefore, common pleas properly denied
    Licensee’s appeal.
    Accordingly, the January 11, 2017 Order of common pleas is affirmed.
    _____________________________________
    RENÉE COHN JUBELIRER, Judge
    Judge Cosgrove concurs in result only.
    7
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Jesse James Spellman,                  :
    Appellant      :
    :
    v.                    :   No. 124 C.D. 2017
    :
    Commonwealth of Pennsylvania,          :
    Department of Transportation,          :
    Bureau of Driver Licensing             :
    ORDER
    NOW, January 3, 2018, the Order of the Court of Common Pleas of Erie
    County, dated January 11, 2017, is AFFIRMED.
    _____________________________________
    RENÉE COHN JUBELIRER, Judge
    

Document Info

Docket Number: 124 C.D. 2017

Judges: Cohn Jubelirer, J.

Filed Date: 1/3/2018

Precedential Status: Precedential

Modified Date: 1/3/2018