Com. v. Weaver, B. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRIAN EDWIN WEAVER, : No. 1605 WDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, October 4, 2017,
in the Court of Common Pleas of Mercer County
Criminal Division at No. CP-43-CR-0001954-2016
BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 12, 2018
Brian Edwin Weaver appeals from the October 4, 2017 aggregate
judgment of sentence of 90 days to 1 year of imprisonment, followed by
4 years’ probation, imposed after he was found guilty in a bench trial of
driving under the influence of alcohol or a controlled substance (“DUI”),
DUI – highest rate of alcohol, driving on the right side of the roadway, and
careless driving.1 After careful review, we affirm.
The trial court summarized the relevant facts of this case as follows:
On September 12, 2016, Trooper Ronald E. Scott of
Pennsylvania State Police - Mercer Barracks was in a
stationary position in a marked patrol car near the
Draw Bar in Otter Creek Township, Mercer County,
Pennsylvania. At approximately 1:30 a.m.,
Trooper Scott observed [appellant] leaving the
Draw Bar, began to follow him and activated a
1 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3301(a) and 3714(a), respectively.
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Mobile Video Recorder (MVR). Trooper Scott
observed [appellant] weaving within his lane,
crossing the centerline once, and the fog line twice.
[Appellant] then turned on to a different road, and
Trooper Scott observed [appellant] travel a
substantial portion of the road while straddling the
middle of the road or driving on the left hand side.
Due to this, the Trooper pulled [appellant] over.
[Appellant] was placed under arrest for a DUI and
was read the revised DL-26 Form dated June 2016.
[Appellant] was in handcuffs and not free to leave
when he was asked to submit to the blood draw.
[Appellant] consented to a blood draw at UPMC
Hospital in Greenville, Pennsylvania, which yielded a
result of .211.
Trial court Rule 1925(a) opinion, 12/29/17 at 1-2.2
Appellant was subsequently charged with DUI and related offenses.
On April 26, 2017, appellant filed an omnibus pre-trial motion to suppress
the evidence obtained from the traffic stop and warrantless blood test. (See
“Omnibus Pre-Trial Motion,” 4/26/17 at ¶¶ 4-10.) On June 7, 2017, the trial
court conducted an evidentiary hearing on appellant’s suppression motion.
Following the hearing, the trial court entered an opinion and order denying
appellant’s suppression motion on June 19, 2017. Appellant waived his right
to a jury trial and proceeded to a bench trial on July 11, 2017. Appellant
was found guilty of the aforementioned offenses following a one-day bench
trial.
2 We note that neither the trial court’s Rule 1925(a) opinion nor its opinion
in support of the June 19, 2017 order denying appellant’s suppression
motion contain pagination; for the ease of our discussion, we have assigned
each page a corresponding number.
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As noted, on October 4, 2017, the trial court sentenced appellant to an
aggregate term of 90 days to 1 year of imprisonment, followed by 4 years’
probation. This timely appeal followed. Thereafter, appellant complied with
the trial court’s order directing him to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On
December 29, 2017, the trial court filed its Rule 1925(a) opinion.
Appellant raises the following issues for our review:
[1.] Did the Commonwealth meet its burden of
proof that [appellant], while under arrest,
consented to the warrantless blood draw?
[2.] Does the newly revised DL-26 Form correct the
DUI statutory sentencing scheme to conform
with Birchfield[3]?
[3.] Was there probable cause to stop [appellant’s]
vehicle after leaving the bar parking lot and
arrest him for [DUI] in his driveway?
Appellant’s brief at 6. For the ease of our discussion, we have elected to
address appellant’s claims in a different order than presented in his appellate
brief.
Appellant first argues that the trial court abused its discretion in
denying his suppression motion because Trooper Scott lacked the requisite
probable cause to stop his vehicle. (Appellant’s brief at 16-18.) We
disagree.
3Birchfield v. North Dakota, U.S. , 136 S.Ct. 2160, 195 L.Ed.2d
560 (2016).
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“The issue of what quantum of cause a police officer must possess in
order to conduct a vehicle stop based on a possible violation of the Motor
Vehicle Code [(“MVC”)] is a question of law, over which our scope of review
is plenary and our standard of review is de novo.” Commonwealth v.
Bush, 166 A.3d 1278, 1281 (Pa.Super. 2017) (citation omitted), appeal
denied, 176 A.3d 855 (Pa. 2017). “[A]ppellate courts are limited to
reviewing only the evidence presented at the suppression hearing when
examining a ruling on a pre-trial motion to suppress.” Commonwealth v.
Stilo, 138 A.3d 33, 35-36 (Pa.Super. 2016) (citation omitted). This court
has held that,
[an appellate court’s] standard of review in
addressing a challenge to the denial of a suppression
motion is limited to determining whether the
suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because the
Commonwealth prevailed before the suppression
court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the
suppression court’s factual findings are supported by
the record, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015), appeal
denied, 135 A.3d 584 (Pa. 2016) (citation omitted; brackets in original).
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The level of suspicion that a police officer must possess before
initiating a traffic stop is codified in 75 Pa.C.S.A. § 6308(b), which provides
as follows:
(b) Authority of police officer.--Whenever a
police officer is engaged in a systematic
program of checking vehicles or drivers or has
reasonable suspicion that a violation of this
title is occurring or has occurred, he may stop
a vehicle, upon request or signal, for the
purpose of checking the vehicle’s registration,
proof of financial responsibility, vehicle
identification number or engine number or the
driver’s license, or to secure such other
information as the officer may reasonably
believe to be necessary to enforce the
provisions of this title.
75 Pa.C.S.A. § 6308(b).
This court has long recognized that “mere reasonable suspicion will not
justify a vehicle stop when the driver’s detention cannot serve an
investigatory purpose relevant to the suspected violation.” Commonwealth
v. Feczko, 10 A.3d 1285, 1291 (Pa.Super. 2010) (en banc) (citation
omitted), appeal denied, 25 A.3d 327 (Pa. 2011). Rather, police officers
are required to possess probable cause to stop a vehicle based on observed
violation of the MVC or otherwise non-investigable offense. Id.; see also
Commonwealth v. Harris, 176 A.3d 1009, 1019 (Pa.Super. 2017) (stating,
“Pennsylvania law makes clear that a police officer has probable cause to
stop a motor vehicle if the officer observes a traffic code violation, even if it
is a minor offense.” (citation omitted)).
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Probable cause is made out when the facts and
circumstances which are within the knowledge of the
officer at the time of the arrest, and of which he has
reasonably trustworthy information, are sufficient to
warrant a man of reasonable caution in the belief
that the suspect has committed or is committing a
crime. The question we ask is not whether the
officer’s belief was correct or more likely true than
false. Rather, we require only a probability, and not
a prima facie showing, of criminal activity. In
determining whether probable cause exists, we apply
a totality of the circumstances test.
Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal
quotation marks and citations omitted). Where an individual’s vehicle is
stopped for a suspected violation of Section 3301,4 as is the case here, a
police officer must possess probable cause because such a stop does not
4 75 Pa.C.S.A. § 3301, Driving on right side of roadway, provides in
relevant part as follows:
(a) General rule.--Upon all roadways of sufficient
width, a vehicle shall be driven upon the right
half of the roadway except as follows:
....
(2) When an obstruction exists making
it necessary to drive to the left of
the center of the roadway,
provided the driver yields the right-
of-way to all vehicles traveling in
the proper direction upon the
unobstructed portion of the
roadway within such distance as to
constitute a hazard.
Id. § 3301(a).
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serve any investigatory purpose. See Commonwealth v. Enick, 70 A.3d
843, 846 (Pa.Super. 2013), appeal denied, 85 A.3d 482 (Pa. 2014).
Instantly, the trial court found that Trooper Scott’s testimony at the
suppression hearing established that he possessed the requisite probable
cause to stop appellant’s vehicle for a suspected violation of
Section 3301(a). (See trial court Rule 1925(a) opinion, 12/29/17 at 4.)
Specifically, Trooper Scott testified that in the early morning hours of
September 12, 2016, he was on stationary patrol when he observed
appellant’s vehicle pull out of the parking lot of the Draw Bar and begin to
travel eastbound on State Route 358. (Notes of testimony, 6/17/17 at 4.)
Trooper Scott testified that he began to follow appellant’s vehicle and
observed it cross the double yellow line once and the white fog line twice.
(Id. at 5.) Trooper Scott further noted that after appellant’s vehicle made a
right turn on Hughey Road, he observed it straddle the middle of the
roadway and/or drive completely on the left-hand side for approximately
one-half mile. (Id.) Based on these observations, Trooper Scott initiated a
traffic stop of appellant’s vehicle. (Id. at 6.) The record further reflects that
this incident was memorialized in a three-minute video taken from an MVR
in Trooper Scott’s patrol car, which was introduced into evidence at the
suppression hearing and viewed by the trial court. (See notes of testimony,
6/7/17 at 6-7; trial court opinion and order, 6/19/17 at 3.)
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Appellant contends that Trooper Scott lacked the requisite probable
cause to stop his vehicle for a suspected violation of Section 3301(a)
because the Commonwealth did not establish that Hughey Road was of
“sufficient width.” (Appellant’s brief at 17.) In support of this contention,
appellant cites Commonwealth v. Grover, 42 Pa. D. & C.2d 767 (Quar.
Sess. 1967), wherein the Court of Quarter Sessions of Chester County
quashed an information charging the defendant with failing to drive on the
right side of the roadway on the basis it failed to specify “that the road was
of sufficient width or was a two-way street . . . .” Id. at 768.
Appellant’s contention is without merit. Unlike in Grover, the criminal
information in the instant matter clearly states that, “[appellant] failed to
drive his vehicle upon the right half of a roadway of sufficient width.”
(Information, 3/3/17 at count 2; certified record at no. 5.) Moreover, the
testimony presented at the suppression hearing belies appellant’s claim.
Trooper Scott testified that although Hughey Road is essentially a narrow
“country road” and not marked by lines, it is comprised of two-lanes with
traffic traveling north and south. (Notes of testimony, 6/7/17 at 5-6, 11.)
Additionally, appellant testified that he drives on Hughey Road “[a]t least
daily” and acknowledged that he was driving on the left-hand side of the
road rather than the right-hand side on the evening in question to avoid
bumps and potholes. (Id. at 15, 17.) Based on the foregoing, it is clear
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that Hughey Road was of a “sufficient width” that appellant was required to
drive his vehicle on the right-hand side, pursuant to Section 3301(a).
Appellant also argues that Trooper Scott lacked the requisite probable
cause to stop his vehicle because “it [wa]s not improper for him to drive on
or in the opposing lane of travel if such travel can be made in safety and is
done to avoid obstructions in the roadway” like bumps and potholes.
(Appellant’s brief at 17-18; see also notes of testimony, 6/7/17 at 17.)
Appellant’s reliance on Enick, which he alleges stands for the proposition
that a momentary traffic violation may be insufficient to establish probable
cause for a traffic stop, to support his argument, is inapposite.
Enick involved a police officer who initiated a traffic stop of Enick’s
vehicle after observing her travelling with “half of the vehicle cross[ing] the
double yellow lines into oncoming traffic for 2–3 seconds.” Enick, 70 A.3d
at 844. Enick filed a suppression motion arguing that the vehicle stop was
unlawful, and the trial court denied her motion and convicted her of DUI.
Id. at 845. On appeal, Enick argued that, “a single breach in the
centerline—a momentary and minor deviation from the norm—is insufficient
to create probable cause in support of the vehicle stop.” Id. at 846 (internal
quotation marks and citation omitted). In concluding that the police officer
had probable cause to stop Enick for violating Section 3301(a) of the MVC,
the Enick court held that “the record plainly indicates that Enick violated”
that section. Id. at 847. The Enick court reasoned that:
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half of Enick’s vehicle crossed over the double yellow
centerline into an oncoming lane of traffic and
remained there for three seconds. . . . Enick’s
driving plainly posed a safety hazard, with half of her
vehicle protruding into an oncoming lane as [the
officer’s] vehicle approached from the opposite
direction.
Id. at 848.
Similarly, like in Enick, appellant’s violation of Section 3301(a) in the
instant matter was not a momentary or minor violation. Rather,
Trooper Scott observed appellant’s vehicle traveling in both the center
and/or on the left-hand side of Hughey Road for a distance of one-half mile,
creating a clear safety hazard. Accordingly, we conclude the trial court
properly determined that Trooper Scott possessed the requisite probable
cause to stop appellant’s vehicle for a violation of Section 3301(a). Based
on the foregoing, the trial court did not err in denying appellant’s omnibus
pre-trial motion to suppress the evidence seized as a result of the traffic
stop.
Having concluded Trooper Scott possessed probable cause to stop
appellant’s vehicle, we now turn to appellant’s remaining claims of error.
Specifically, appellant contends that the trial court abused its discretion in
denying his motion to suppress the results of his blood test because the
Commonwealth failed to “meet its burden of proof that [he], while under
arrest, consented to the warrantless blood draw[.]” (Appellant’s brief at 12.)
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As noted, following appellant’s arrest for DUI on the evening in
question, Trooper Scott read appellant a revised DL-26 form concerning the
chemical test of his blood. (Notes of testimony, 6/7/17 at 7-8.) The revised
DL–26 form, “Chemical Testing Warnings and Report of Refusal to Submit to
a Blood Test as Authorized Section 1547 . . . [,]” or DL-26B, is known as an
implied consent form and informs the arrestee of the penalties to which they
could be subjected if they refuse to consent to a blood draw following a DUI
arrest. See PennDot v. Weaver, 912 A.2d 259, 261 (Pa. 2006). DL-26B
includes the following language:
It is my duty as a police officer to inform you of the
following:
You are under arrest for driving under the influence
of alcohol or a controlled substance in violation of
Section 3802 of the Vehicle Code.
I’m requesting that you submit to a chemical test of
blood.
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 driving under the
influence you will be suspended for up to 18 months.
You have no right to speak to an attorney or anyone
else before you decide whether to submit to testing.
If you request to speak with an attorney or anyone
else after being provided these warnings, or if you
remain silent when asked to submit to a blood test,
you will have refused the test.
DL-26B form, 9/12/16 (numeration omitted); Commonwealth’s Exhibit 2.
Appellant signed the DL–26B and consented to the blood draw. (Id.)
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Appellant maintains that his consent to the warrantless blood draw
was invalid because the DL-26B read to him by Trooper Scott contravened
the United States Supreme Court’s decision in Birchfield and was
misleading and deceitful. (Appellant’s brief at 14-16.) For the following
reasons, we disagree.
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal
quotation marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009).
“A search conducted without a warrant is deemed to
be unreasonable and therefore constitutionally
impermissible, unless an established exception
applies.” Commonwealth v. Strickler, 757 A.2d
884, 888 (Pa. 2000). “Exceptions to the warrant
requirement include the consent exception, the plain
view exception, the inventory search exception, the
exigent circumstances exception, the automobile
exception . . . , the stop and frisk exception, and the
search incident to arrest exception.”
Commonwealth v. Dunnavant, 63 A.3d 1252,
1257 n.3 (Pa.Super. 2013).
The “administration of a blood test . . . performed by
an agent of, or at the direction of the government”
constitutes a search under both the United States
and Pennsylvania Constitutions. Commonwealth v.
Kohl, 615 A.2d 308, 315 (Pa. 1992); Schmerber v.
California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16
L.Ed.2d 908 (1966). Since the blood test in the case
at bar was performed without a warrant, the search
is presumptively unreasonable “and therefore
constitutionally impermissible, unless an established
exception applies.” Strickler, 757 A.2d at 888.
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Commonwealth v. Evans, 153 A.3d 323, 327-328 (Pa.Super. 2016). “One
such exception is consent, voluntarily given.” Strickler, 757 A.2d at 888-
889 (citation omitted). Under the Fourth Amendment, where an encounter
between law enforcement is lawful, voluntariness of consent to a search
becomes the exclusive focus. See id.
Here, our review of the record before us establishes that appellant
voluntarily consented to the chemical test of his blood and that
Trooper Scott’s recitation of the DL-26B was not misrepresentative or
deceitful nor did it impact appellant’s consent in any way. In reaching this
conclusion, we find our recent decision in Commonwealth v. Smith, 177
A.3d 915 (Pa.Super. 2017), to be particularly instructive. Therein, a panel
of this court discussed the admissibility of a blood test result when consent
was obtained using the revised DL–26 form, post-Birchfield. As in the
instant matter, appellant was stopped for suspicion of DUI, arrested, and
consented to a blood test following the arresting trooper’s recitation of the
revised DL–26 form. Smith, 177 A.3d at 917. The appellant sought to have
the results of the blood draw suppressed, alleging that the warrantless
seizure of her blood ran afoul of Birchfield and the Pennsylvania and United
States Constitutions. Id. at 918.
On appeal, the appellant raised virtually identical claims to those
raised by appellant in the instant matter, and the Smith court provided the
following analysis in addressing those claims:
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In Birchfield, the [United States Supreme] Court
reviewed a consolidated case in which one of the
petitioners, Steve Michael Beylund, was arrested for
DUI and informed that the refusal to submit to blood
testing constituted a crime itself under North Dakota
law. Thereafter, petitioner Beylund argued that his
consent had been coerced by the officer’s warning.
Relevant to the instant case, the United States
Supreme Court held that a state may not “insist
upon an intrusive blood test, but also . . . impose
criminal penalties upon the refusal to submit to such
a test.” Birchfield, 136 S.Ct. at 2185. Moreover,
the High Court emphasized that “motorists cannot be
deemed to have consented to a blood test upon pain
of committing a criminal offense.” Id. at 2186. As
petitioner Beylund had consented to a blood test only
after police had erroneously informed him that he
could be criminally penalized if he refused to do so,
the Birchfield Court remanded for the trial court to
“reevaluate Beylund’s consent given the partial
inaccuracy of the officer’s advisory.” Id.
Nevertheless, the Birchfield Court emphasized that
its holding did not apply to the imposition of civil
penalties and evidentiary consequences upon
motorists suspected of DUI who refused blood
testing upon their arrest:
It is well established that a search is
reasonable when the subject consents,
and that sometimes consent to a search
need not be express but may be fairly
inferred from context. Our 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 laws, and nothing we say here
should be read to cast doubt on
them.
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Birchfield, 136 S.Ct. at 2185 (emphasis added)
(citations omitted).
Thereafter, this Court decided [Evans], in which the
appellant had similarly argued that his consent to
blood testing after his arrest for DUI was coerced as
he only consented after the police warned him that
his refusal to submit to blood testing would result in
harsher penalties upon conviction. Although the
Evans court recognized that Pennsylvania’s implied
consent law did not make refusal to submit to a
blood test a crime, the panel emphasized that the
law “undoubtedly impose[s] criminal penalties on the
refusal to submit to a test.” Evans, 153 A.3d at 331
(quoting Birchfield, 136 S.Ct. at 2185-[21]86).
This Court pointed out to the DUI penalty provisions
set forth in 75 Pa.C.S.A. § 3804:
Section 3804(c) provides that an
“individual who violates section
3802(a)(1)[, DUI, general impairment]
and refused testing of blood” is punished
more severely than an individual who
commits the stand-alone DUI, general
impairment offense under Section
3802(a)(1)—and to the same extent as
an individual who violates Section
3802(c), relating to DUI, highest rate of
alcohol. 75 Pa.C.S.A. § 3804(c). As
such, Birchfield controls the case at
bar.
Id.
Since the appellant in Evans had argued that he
agreed to submit to blood testing only after being
informed that harsher penalties would apply if he
refused, this Court held that the officer’s advisory to
Evans was “partially inaccurate” as Birchfield
prohibits states from imposing criminal penalties for
the refusal to submit to blood testing. Evans, 153
A.3d at 331. As a result, this Court vacated the
appellant’s sentence and the suppression order and
remanded with instructions for the trial court to
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reevaluate the voluntariness of appellant's consent in
light of this inaccurate warning and the totality of the
circumstances.
The instant case is factually distinguishable from
Birchfield and Evans. To reiterate, the decision in
Birchfield, which was controlling law at the time of
Appellant’s arrest, prohibited states from imposing
criminal penalties upon an individual’s refusal to
submit to a warrantless blood test. Birchfield, 136
S.Ct. at 2185. The trial court in this case found
Birchfield was inapplicable since Appellant was
never advised that she would be subject to enhanced
criminal sanctions upon refusal of blood testing. Our
review of the record confirms this finding; both
parties agree that Trooper Hogue only informed
Appellant that her driver’s license would be
suspended if she refused blood testing. Appellant
signed a DL–26 form acknowledging that she was
advised of this particular consequence. This form
does not contain any reference to enhanced criminal
penalties. See Commonwealth’s Exhibit 1, DL–26
form. Thereafter, Appellant agreed to submit to
blood testing, which revealed a blood alcohol level of
0.274. We cannot conclude that the trial court erred
in denying Appellant’s suppression motion that
vaguely cited to Birchfield.
Commonwealth v. Smith, 177 A.3d 915, 920-922 (Pa.Super. 2017)
(internal citations and emphasis in original; some citations amended;
footnote omitted); see also Commonwealth v. Miller, 2018 WL 2057002(Pa.Super. 2018).
Upon review, we find that the rationale set forth in Smith is sound and
compels a similar result in this case. Here, Trooper Scott read appellant the
revised version of the DL-26 form, DL-26B, and properly informed him that
he was subject to the civil penalty of license suspension if he refused to
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consent. Appellant was not informed that he would be subject to additional
imprisonment or any other sort of criminal enhancement.
Appellant would have this court conclude that his consent to the blood
draw was based on “misrepresentation and deceit” and that the DL-26B was
“tantamount to coercion.” (Appellant’s brief at 16.) According to appellant,
because the General Assembly had not yet amended the statutory provisions
that allowed for enhanced criminal penalties for failure to refuse a blood test
at the time the DL-26B was read to him, and because he had been
previously convicted of DUI and was aware of the enhanced criminal
penalties, he “submitted to the warrantless blood test only on the pain of
potentially enhanced criminal penalties.” (Id.)5 Appellant’s claims are
meritless.
As recognized by the trial court, the DL–26B utilized by Trooper Scott
in this matter correctly reflected the law in accordance with Birchfield and
its Pennsylvania progeny and was a correct statement of the law when read
to appellant. (See trial court Rule 1925(a) opinion, 12/29/17 at 3-4.)
Namely, the DL-26B did not warn appellant of any enhanced criminal
5 We note that on July 20, 2017, the General Assembly amended
75 Pa.C.S.A. §§ 1547(b)(2)(ii) and 3804(c) of the MVC, consistent with
Birchfield and its Pennsylvania progeny, to clarify that enhanced criminal
penalties could be imposed only for refusing to submit to “chemical breath
testing,” not blood testing. See Act of July 20, 2017, P.L. 333.
Concomitantly, since a driver is no longer subject to enhanced criminal
penalties for refusing a blood test, the General Assembly removed from
Section 1547(b)(2)(ii) the obligation of an officer to warn the driver about
that consequence.
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penalties for refusal to consent to a blood test because Birchfield declared
such enhancement unconstitutional. See Smith, 177 A.3d at 921. Rather,
as noted, the DL-26B properly informed appellant only of the civil penalties
to which he would be subject, namely, the suspension of his license, if he
refused the blood draw, and appellant freely consented. (See DL-26B form,
9/12/16; Commonwealth’s Exhibit 2.) Contrary to appellant’s argument, the
fact that the DL-26B as read to him did not conform to
Section 1547(b)(2)(ii) as it was then-written, is not fatal. The effect of
Birchfield and its Pennsylvania progeny was to render the criminal penalties
warned of in the prior version of Section 1547(b)(2)(ii) as applied to blood
testing unenforceable and to sever that section from the rest of the MVC.
See 1 Pa.C.S.A. § 1925 (stating, “the provisions of every statute shall be
severable. If any provision of any statute or the application thereof to any
person or circumstance is held invalid, the remainder of the statute, and the
application of such provision to other persons or circumstances, shall not be
affected thereby . . . .”); Commonwealth v. Batts, 163 A.3d 410, 441 (Pa.
2017) (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”
(citation omitted)). Accordingly, we discern no abuse of discretion on the
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part of the trial court in denying appellant’s omnibus pre-trial motion to
suppress the results of his blood test.6
For all the foregoing reasons, we affirm appellant’s October 4, 2017
judgment of sentence.
Judgment of sentence affirmed.
Murray, J. joins this Memorandum.
Olson, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2018
6 Appellant also argues, albeit parenthetically, that “his consent to the
warrantless blood draw was invalid since [] he was under arrest and
handcuffed at the time[.]” (Appellant’s brief at 11.) As appellant did not
raise this specific issue in his Rule 1925(b) statement, we deem this issue
waived. See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in [an
appellant’s 1925(b)] Statement ... are waived”); see also
Commonwealth v. Dozier, 99 A.3d 106, 110 (Pa.Super. 2014), appeal
denied, 104 A.3d 523 (Pa. 2014) (deeming appellant’s issues waived for
failure to present them in his Rule 1925(b) statement).
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