D.S. Richardson v. Bureau of Driver Licensing ( 2019 )


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  •             IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    David S. Richardson,                           :
    :
    Appellant       :
    :
    v.                      : No. 681 C.D. 2018
    : Argued: April 9, 2019
    Commonwealth of Pennsylvania,                  :
    Department of Transportation,                  :
    Bureau of Driver Licensing                     :
    BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE MICHAEL H. WOJCIK, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE WOJCIK                                                 FILED: October 28, 2019
    David S. Richardson (Licensee) appeals an order of the Court of
    Common Pleas of Lebanon County (trial court) dismissing his appeal of a one-year
    suspension of his operating privilege imposed by the Department of Transportation,
    Bureau of Driver Licensing (Department) pursuant to Section 1547(b)(1)(i) of the
    Vehicle Code,1 commonly known as the Implied Consent Law, for refusing a blood
    1
    75 Pa. C.S. §1547(b)(1)(i), which states:
    (1) If any person placed under arrest for a violation of [Section 3802
    of the Vehicle Code, 75 Pa. C.S. §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, the department shall
    suspend the operating privilege of the person . . . for a period of 12
    months.
    test. Licensee argues that his license suspension must be set aside because he was
    not warned of the enhanced criminal penalties for refusing a blood test. We affirm.
    On June 7, 2017, the Department notified Licensee that his operating
    privilege was suspended for one year for refusing to submit to a blood test. Licensee
    appealed, asserting that the license suspension was invalid because (1) the police
    officer did not have reasonable grounds to request him to submit to chemical testing
    and (2) the police officer did not comply with his statutory duty under former Section
    1547(b)(2) of the Vehicle Code, former 75 Pa. C.S. §1547(b)(2), to inform Licensee
    that a refusal would subject him to enhanced criminal penalties. Reproduced Record
    (R.R.) at 5.
    The trial court held a hearing on September 26, 2017. The Department
    submitted a packet of documents that was admitted without objection. The parties
    stipulated to the following facts. On May 28, 2017, Licensee was arrested by a
    police officer who had reasonable grounds to suspect that Licensee was driving or
    in physical control of a vehicle while under the influence of alcohol (DUI) in
    violation of Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. Licensee was
    asked to submit to a chemical test of his blood. He refused, and a police officer read
    the implied consent warnings as they appear on form DL-26B.2 R.R. at 14-15.
    Neither party presented oral argument.
    On April 17, 2018, the trial court entered an order dismissing
    Licensee’s appeal and reinstating Licensee’s suspension. R.R. at 19. In doing so,
    the trial court specifically relied on the parties’ stipulation of facts and this Court’s
    decisions in Garlick v. Department of Transportation, Bureau of Driver Licensing,
    2
    Department’s Exhibit 2.
    2
    
    176 A.3d 1030
    (Pa. Cmwlth. 2018), and Negovan v. Department of Transportation,
    Bureau of Driver Licensing, 
    172 A.3d 733
    (Pa. Cmwlth. 2017). R.R. at 19, 32.
    On appeal to this Court,3 Licensee first argues that, because the implied
    consent warnings read to him did not notify him that he would be subjected to
    enhanced criminal penalties if he refused the chemical blood test, the warning failed
    to satisfy the requirements of former Section 1547(b)(2)(ii) of the Vehicle Code,
    former 75 Pa. C.S §1547(b)(2)(ii),4 rendering his suspension invalid. Licensee also
    argues that former Section 1547(b)(2)(ii) is not severable from the Vehicle Code.
    However, on June 23, 2016 the United States Supreme Court rendered its
    decision in Birchfield v. North Dakota, ___ U.S. ___, 
    136 S. Ct. 2160
    (2016),
    holding that the Fourth Amendment to the United States Constitution does not permit
    warrantless blood tests incident to arrests for DUI and that criminal penalties cannot
    3
    Our scope of review is limited to determining whether necessary findings of the trial court
    are supported by substantial evidence and whether the trial court committed an error of law or
    abused its discretion. Martinovic v. Department of Transportation, Bureau of Driver Licensing,
    
    881 A.2d 30
    , 34 n.6 (Pa. Cmwlth. 2005). Our review over questions of law is plenary. Deliman
    v. Department of Transportation, Bureau of Driver Licensing, 
    718 A.2d 388
    , 389 n.1 (Pa. Cmwlth.
    1998).
    4
    At the time of Licensee’s arrest, former Section 1547(b)(2) stated:
    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).
    Former 75 Pa. C.S. §1547(b)(2).
    3
    be imposed upon a motorist who refuses a blood test without a search warrant.
    Subsequently, the Pennsylvania Superior Court held that absent 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 the enhanced penalties
    provided [in the Vehicle Code].” Commonwealth v. Giron, 
    155 A.3d 635
    , 640 (Pa.
    Super. 2017). Thereafter, the Department created two separate DL-26 forms, one
    used for breath tests and the other for blood tests. As reflected on the Department’s
    Exhibit C, the new form for blood tests no longer states that a refusal will subject a
    licensee to enhanced criminal penalties. On July 20, 2017, the General Assembly
    amended Section 1547(b)(2)(ii), which now applies if a person “refuses to submit to
    chemical breath testing.” 75 Pa. C.S. §1547(b)(2)(ii) (emphasis added).
    While the former version of Section 1547 was in effect at the time of
    Licensee’s arrest, Birchfield prohibited its implementation. Nevertheless, Licensee
    argues that because the statute had not been amended at the time of his arrest,
    authorities had to continue applying former Section 1547 in its entirety, including
    the warning regarding enhanced criminal penalties for refusal of chemical testing.
    Licensee’s arguments are identical to those rejected by this Court in
    Garlick. Therein, we held that Birchfield rendered the enhanced criminal penalties
    in former Section 1547(b)(2)(ii) of the Vehicle Code unenforceable and that former
    Section 1547(b)(2)(ii) is severable from the remainder of the statute.
    Simply stated, enhanced criminal penalties were not a
    consequence of Licensee’s refusing the requested blood test.
    Licensee’s argument is, in effect, that because the General
    Assembly did not immediately amend Section 1547(b)(2)(ii),
    [the Department] 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
    4
    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 provision of a statute
    is invalidated for any reason . . . a court must sever it from the
    remaining, valid portion of the statute”).
    
    Garlick, 176 A.3d at 1036
    . Applying our holding in Garlick, we conclude
    that the trial court did not err in denying Licensee’s appeal.
    Accordingly, we affirm.
    MICHAEL H. WOJCIK, Judge
    5
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    David S. Richardson,                 :
    :
    Appellant    :
    :
    v.                 : No. 681 C.D. 2018
    :
    Commonwealth of Pennsylvania,        :
    Department of Transportation,        :
    Bureau of Driver Licensing           :
    ORDER
    AND NOW, this 28th day of October, 2019, the order of the Court of
    Common Pleas of Lebanon County, dated April 17, 2018, is AFFIRMED.
    __________________________________
    MICHAEL H. WOJCIK, Judge
    

Document Info

Docket Number: 681 C.D. 2018

Judges: Wojcik, J.

Filed Date: 10/28/2019

Precedential Status: Non-Precedential

Modified Date: 12/13/2024