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


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  •            IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    John Tomasic                                :
    :
    v.                     : No. 1189 C.D. 2017
    : Submitted: February 2, 2018
    Commonwealth of Pennsylvania,               :
    Department of Transportation,               :
    Bureau of Driver Licensing,                 :
    :
    Appellant      :
    BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
    HONORABLE MICHAEL H. WOJCIK, Judge
    HONORABLE DAN PELLEGRINI, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE WOJCIK                                                    FILED: June 19, 2018
    The Department of Transportation, Bureau of Driver Licensing (DOT)
    appeals the order of the Westmoreland County Court of Common Pleas (trial court)
    sustaining the appeal of John Tomasic (Licensee) from a one-year suspension of his
    operating privilege imposed by DOT pursuant to the former Section 1547 of the
    Vehicle Code, 75 Pa. C.S. §1547 (Implied Consent Law).1 We reverse and reinstate
    the suspension.
    1
    Section 1547 of the Vehicle Code is commonly referred to as the Implied Consent Law
    and was amended by the Act of July 20, 2017, P.L. 333, following the instant suspension, but
    imposes the same suspension based upon the same conduct. Section 1547(b)(1)(i) states, in
    relevant part:
    (1) If any person placed under arrest for a violation of section 3802
    [relating to driving under the influence of alcohol or a controlled
    substance (DUI)] is requested to submit to chemical testing and
    On August 23, 2016, DOT informed Licensee that his operating
    privilege was suspended for one year based on his failure to submit to a chemical
    test of his blood on August 11, 2016. Licensee appealed the suspension to the trial
    court pursuant to Section 1550(a) of the Vehicle Code, 75 Pa. C.S. §1550(a), and a
    hearing was held.2
    At the hearing, Officer Jason Fidazzo of the Greensburg City Police
    testified as follows. On August 11, 2016, Officer Fidazzo stopped a motor vehicle
    operated by Licensee. Officer Fidazzo detected a strong odor of alcohol emanating
    from the vehicle and observed that Licensee’s eyes were glassy, his speech was
    slurred, and his hands were shaky. Upon questioning, Licensee admitted to drinking
    one beer that evening. Based on Licensee’s appearance, Officer Fidazzo asked
    Licensee to perform field sobriety tests. Licensee failed to perform any field sobriety
    tests. Consequently, Officer Fidazzo placed Licensee under arrest for DUI. Officer
    Fidazzo then asked Licensee to submit to a chemical test of his blood and, following
    Licensee’s refusal, Officer Fidazzo read Form DL-26B3 to Licensee outlining the
    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:
    (i) Except as set forth in subparagraph (ii) [(setting forth the
    circumstances leading to an 18-month suspension)], for a period of
    12 months.
    75 Pa. C.S. §1547(b)(1)(i).
    2
    Section 1550(a) provides that “[a]ny person . . . whose operating privilege has been . . .
    suspended . . . by [DOT] shall have the right to appeal to the court vested with jurisdiction of such
    appeals . . . .” 75 Pa. C.S. §1550(a).
    3
    Form DL-26B read to Licensee states, in relevant part:
    2
    consequences for his refusal to consent to the chemical test. Licensee signed the
    Form DL-26B and again refused to submit to the chemical test.4
    Licensee did not present any evidence at the hearing, and it is
    undisputed that Officer Fidazzo did not warn Licensee that he would be subject to
    enhanced criminal penalties if he refused a chemical test of his blood, as then
    ostensibly required by the former Section 1547(b)(2)(ii) of the Vehicle Code, 75 Pa.
    C.S. §1547(b)(2)(ii).5        Rather, Licensee argued that DOT’s suspension of his
    It is my duty as a police officer to inform you of the following:
    1. You are under arrest for [DUI] 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 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.
    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 a blood test, you will have
    refused the test.
    Reproduced Record (R.R.) at 36a.
    4
    DOT had the initial burden of demonstrating that Licensee’s operating privilege should
    be suspended under Section 1547 by showing that he: (1) was arrested for DUI by a police officer
    who had reasonable grounds to believe that he was operating or was in actual physical control of
    the movement of the vehicle while under the influence of alcohol in violation of Section 3802; (2)
    was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that his refusal
    might result in a license suspension. Kollar v. Department of Transportation, Bureau of Driver
    Licensing, 
    7 A.3d 336
    , 339 (Pa. Cmwlth. 2010).
    5
    The former Section 1547(b)(2)(ii) provided as follows:
    3
    operating privilege was invalid because Officer Fidazzo did not advise Licensee that
    his refusal would subject him to enhanced criminal penalties in violation of the
    former Section 1547(b)(2)(ii).
    However, eight months before Licensee was stopped, in Birchfield v.
    North Dakota, 579 U.S. __, 
    136 S. Ct. 2160
     (2016), the United States Supreme Court
    held: 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.
    Four months after Licensee’s arrest, the Pennsylvania 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
    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).
    4
    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. §§1547(b)(2)(ii), 3804(c), so as to
    eliminate enhanced criminal penalties for refusing to submit to a chemical blood test
    and the warning associated therewith. Sections 3 and 4 of the Act of July 20, 2017,
    P.L. 333. See Garlick v. Department of Transportation, Bureau of Driver Licensing,
    
    176 A.3d 1030
    , 1032-33 (Pa. Cmwlth. 2018).
    Ultimately, the trial court adopted Licensee’s position that the omission
    from Form DL-26B that he would have formerly been subject to enhanced criminal
    penalties violates the former Section 1547(b)(2)(ii) of the Vehicle Code such that
    DOT did not meet its burden of proof supporting the suspension of his operating
    privilege.6 As a result, the trial court sustained Licensee’s appeal.
    6
    The trial court explained its rationale as follows:
    The arguments and briefs of counsel raise the question of
    whether or not [Licensee’s] refusal to submit to a blood test was
    knowing and conscious based upon the statutorily required advice
    by Officer Fidazzo[.] The officer testified that he had informed
    [Licensee] of the sanctions for refusal according to a revised DL-26
    Form as it was altered by [DOT]. That advice did not comply with
    the mandatory advice provided for at 75 Pa. C.S. §1547(b)(2), which
    states, “the person shall be subject to the penalties provided in
    Section 3804(c).” Testimony revealed that the DL-26 Form used
    and read by Officer Fidazzo had been altered from the statutory
    language required.
    Since Section 1547 of the [Vehicle] Code is the statutory
    basis for the concept of DEEMED CONSENT and is a matter of
    legislation and since the statutory language must be strictly applied,
    the failure to state the imposed sanctions verbatim as required by the
    legislature cannot be altered without amendment to that enabling
    5
    On appeal,7 DOT argues that the trial court erred in sustaining
    Licensee’s appeal because the Implied Consent warnings that Officer Fidazzo
    provided to Licensee were adequate to support the suspension of his operating
    privilege under the Implied Consent Law. We agree.
    The argument that Licensee raised below and that the trial court adopted
    is the same as was raised in Garlick, 176 A.3d at 1035. For the reasons set forth in
    Garlick, id. at 1036, we conclude that DOT met its burden of proving that Licensee
    was specifically warned about the consequences of refusing a chemical blood test,
    that is, the suspension of his license.8                See Martinovic v. Department of
    legislation. The officer’s legislative duty is not changed by the
    interpretation of cases requiring the same [See Birchfield] or other
    case law. Only an appropriate invalidation of the statute by the
    courts as being unconstitutional could remove or alter its
    requirements.
    R.R. at 57a-58a (emphasis in original).
    7
    Our review is limited to determining whether the trial court committed an error of law,
    whether the trial court abused its discretion, or whether the findings of fact are supported by
    substantial evidence. Reinhart v. Department of Transportation, Bureau of Driver Licensing, 
    954 A.2d 761
    , 765 n.3 (Pa. Cmwlth. 2008).
    8
    As we explained in Garlick:
    Licensee’s argument is, in effect, that because the General
    Assembly did not immediately amend Section 1547(b)(2)(ii), DOT
    and the police had to continue to apply Section 1547(b)(2)(ii).
    However, the effect of Birchfield and the Superior Court cases that
    followed 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 (“[t]he provisions of every statute shall be severable” with
    certain exceptions not applicable here); Commonwealth v. Batts, 
    163 A.3d 410
    , 441 (Pa. 2017) (emphasis added) (stating that “[i]f a
    6
    Transportation, 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 permissible consequence of such a refusal. Even though the General
    Assembly did not immediately amend the former Section 1547(b)(2)(ii) following
    Birchfield, the effect of Birchfield was to render the criminal penalties warned of in
    the former 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, the trial court erred in sustaining Licensee’s appeal.
    Accordingly, the trial court’s order is reversed and the one-year
    suspension of Licensee’s operating privilege is reinstated.
    MICHAEL H. WOJCIK, Judge
    provision of a statute is invalidated for any reason . . . a court must
    sever it from the remaining, valid portion of the statute”).
    176 A.3d at 1036.
    7
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    John Tomasic                        :
    :
    v.                 : No. 1189 C.D. 2017
    :
    Commonwealth of Pennsylvania,       :
    Department of Transportation,       :
    Bureau of Driver Licensing,         :
    :
    Appellant    :
    ORDER
    AND NOW, this 19th day of June, 2018, the order of the Westmoreland
    County Court of Common Pleas dated August 9, 2017, is REVERSED, and the one-
    year suspension of John Tomasic’s operating privilege is REINSTATED.
    __________________________________
    MICHAEL H. WOJCIK, Judge