Com. v. Gustafson, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellant
v.
TERRI RAE GUSTAFSON,
Appellee No. 807 WDA 2017
Appeal from the Order Entered May 10, 2017
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000589-2016
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 06, 2018
The Commonwealth appeals from the order granting the motion to
suppress filed by Appellee, Terri Rae Gustafson. Because the trial court
adopted a per se approach to the O’Connell warnings,1 we determine the trial
court erred by failing to evaluate the record under a totality of the
circumstances standard. We therefore reverse the suppression order and
remand.
Pennsylvania State Trooper Danielle M. Marshall Hoare responded to a
motor vehicle accident where Ms. Gustafson “t-boned” another vehicle.
Arriving at the scene, Trooper Marshall observed that Ms. Gustafson appeared
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1Commonwealth, Department of Transportation, Bureau of Traffic
Safety v. O’Connell, 555 A.2d 873 (Pa. 1989).
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confused and disoriented, and smelled strongly of alcohol. Trooper Marshall
asked Ms. Gustafson to submit to a field sobriety test to which she agreed.
Ms. Gustafson performed two HGN tests, one inside of her car and one outside.
The results of both tests indicated that Ms. Gustafson was intoxicated.
Ms. Gustafson further agreed to participate in the “walk-and-turn” test.
However, Trooper Marshall, concerned for Ms. Gustafson’s safety, decided
against conducting any further motor skills tests because Ms. Gustafson was
so unsteady on her feet. Instead, she asked Ms. Gustafson to take a
Preliminary Breath Test (“PBT”). Ms. Gustafson, understanding the purpose
of the test, once again complied.
At the scene of the accident, Trooper Marshall had a discussion with Ms.
Gustafson about taking her to the hospital to have a blood draw. Ms.
Gustafson continued to be agreeable and indicated that she was willing to
have a blood draw. Trooper Marshall then handcuffed Ms. Gustafson, placed
her in the police vehicle and transported her to the hospital. During the ride
to the hospital, Ms. Gustafson continued to be cooperative and expressed her
gratitude to Trooper Marshall for treating her so well.
After arriving at the hospital, Trooper Marshall read Ms. Gustafson the
following O’Connell warnings:
If you refuse to submit to the chemical test, and you are
convicted of violating Section 3802(a)(1) (relating to
impaired driving) of the Vehicle Code, then, because of your
refusal, you will be subjected to more severe penalties set
forth in Section 3804(c) (relating to penalties) of the Vehicle
Code. These are the same penalties that would be imposed
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if you were convicted of driving with the highest rate of
alcohol, which include a minimum of 72 consecutive hours
in jail and a maximum fine $1,000.00, up to a maximum of
five years in jail and a maximum fine of $10,000.
Ms. Gustafson then acquiesced to the blood draw, and signed the DL-26
form confirming her consent.
Ms. Gustafson filed a motion to suppress the blood test results. The trial
court held a hearing, and ultimately granted Ms. Gustafson’s motion and
suppressed the evidence. The Commonwealth filed a timely notice of appeal
and raised the following issue:
Whether the suppression court erred in finding that [Ms.
Gustafson’s] consent to the drawing of her blood was not
voluntary because the trooper read her an invalid warning prior to
the drawing of blood where [Ms. Gustafson] had already agreed
to give a preliminary breath sample and consented to the blood
draw prior to being read said warning.
Commonwealth’s Brief at 3.
When reviewing suppression rulings, this court’s standard of review is
“limited to determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003). We are
constrained to consider only the evidence presented at the suppression
hearing. Commonwealth v. Haines, 168 A.3d 231, 234 (Pa. Super. 2017)
(citing, In re L.J., 79 A.3d 1073, 1085-87 (Pa. 2013). Because Ms. Gustafson
succeeded on her motion to suppress, we must only consider Ms. Gustafson’s
evidence and the Commonwealth’s evidence, to the extent that the
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Commonwealth’s evidence is not contrary to Ms. Gustafson’s evidence “when
read in the context of the record as a whole.” Commonwealth v. Bomar,
826 A.2d 831, 842 (Pa. 2003).
The United States Supreme Court has held that a state statute may not
criminalize the refusal to submit to a blood test in the absence of a warrant or
applicable exception because, while the Fourth Amendment allows for
warrantless breath tests incident to an arrest for drunk driving, warrantless
blood tests incident to an arrest violate the Fourth Amendment. Birchfield
v. North Dakota, 136 S. Ct. 2160, 2173, 2185 (U.S. 2016). Implied consent
laws are a “condition of the privilege of driving on state roads” which require
motorist to cooperate with blood alcohol testing. Birchfield, 136 S. Ct. at
2186, 2166. Implied consent laws additionally “impose penalties on motorists
who refuse to undergo testing when there is sufficient reason to believe they
are violating the State’s drunk-driving laws.” Id. Although it is permissible
to impose civil and evidentiary penalties on those who refuse blood testing, it
is unconstitutional to criminalize the refusal to consent to a blood test absent
a warrant because one cannot freely consent to a blood test knowing that the
consequence of refusal is a criminal offense.2 Id. at 2185-86.
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2 The United States Supreme Court had issued the Birchfield opinion only
two days prior to the events that lead to the present case. As such, Trooper
Marshall was unaware of the high court’s decision and had no reason to
consider the necessity of a search warrant to obtain a blood draw, or that
paragraph 4 of the DL-26 form was a violation of the Fourth Amendment.
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In Commonwealth v. Evans, 153 A.3d 323, 331 (Pa. Super. 2016),
this Court applied the Birchfield decision to Pennsylvania’s applicable
statutory scheme, which, at that time, enhanced criminal penalties for a
person convicted of a DUI, if that person had refused to submit to a blood
test. In Evans, we held that the O’Connell warnings violated Birchfield,
and, as such, determined the implied-consent warnings were partially
inaccurate. Id. at 331. We vacated the sentence and remanded to the trial
court to determine whether under the totality of the circumstances approach,
the consent was valid. Id.
To determine whether an individual validly consented to a chemical test,
the Supreme Court of Pennsylvania has articulated the following standard:
In determining the validity of a given consent, the Commonwealth
bears the burden of establishing that a consent is the product of
an essentially free and unconstrained choice – not the result of
duress or coercion, express or implied, or a will overborne – under
the totality of the circumstances. The standard for measuring the
scope of a person’s consent is based on an objective evaluation of
what a reasonable person would have understood by the exchange
between the officer and the person who gave the consent. Such
evaluation includes an objective examination of the maturity,
sophistication and mental or emotional state of the defendant.
Gauging the scope of a defendant’s consent is an inherent and
necessary part of the process of determining, on the totality of the
circumstances presented, whether the consent is objectively valid,
or instead the product of coercion, deceit, or misrepresentation.
Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013).
The Commonwealth argues that Ms. Gustafson’s consent was voluntary
and occurred long before Trooper Marshall issued the O’Connell warnings.
The Commonwealth maintains that Ms. Gustafson was continuously
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cooperative and appreciative towards Trooper Marshall, that she submitted to
all of the field sobriety tests and the PBT test the trooper administered, and
that she agreed to a blood draw before being arrested and read the O’Connell
warnings. Thus, the Commonwealth argues, Ms. Gustafson’s consent was
untainted and valid. The Commonwealth asserts that the suppression court
put “talismanic significance” on the fact that Trooper Marshall read Ms.
Gustafson the O’Connell warnings and that it failed to properly weigh other
facts that indicated her consent was indeed voluntary. Commonwealth Brief
at 8.
In this case, Ms. Gustafson consented to the warrantless blood draw
both before and after Trooper Marshall informed her that “If you refuse to
submit to the chemical test, and you are convicted of violating Section
3802(a)(1) (relating to impaired driving) of the Vehicle Code, then, because
of your refusal, you will be subjected to more severe penalties set forth in
Section 3804(c) (relating to penalties) of the Vehicle Code. These are the
same penalties that would be imposed if you were convicted of driving with
the highest rate of alcohol.” The trial court found that although Gustafson’s
compliance was without question voluntary, up to the point that the
O’Connell warnings were read, “the Court cannot unreservedly determine
that paragraph four’s inherently coercive language did not contribute to her
ultimate decision to submit to a blood test.” Trial Court Opinion, 05/10/2017,
at 3.
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Here, we interpret the trial court language as applying a per se rule and
deciding that, the O’Connell warning, in and of itself, when read, invalidated
consent to a blood draw. This conclusion runs afoul of a “totality of the
circumstances” evaluation. Many of the facts presented here suggest that Ms.
Gustafson’s consent was not coerced but could, nevertheless, have been
involuntary. The scope of Ms. Gustafson’s consent must be examined through
an objective lens to determine how a reasonable person would understand her
situation. Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013).
In this case, the suppression court’s opinion did not weigh the facts that
were suggestive of valid consent against those facts that did not. Instead, it
found that introducing the O’Connell warnings here automatically invalidated
Ms. Gustafson’s consent. The O’Connell warnings are but one factor under
the totality of the circumstances standard when evaluating the scope of
consent.
Because the trial court did not employ the totality of the circumstances
standard, we must remand for a determination as to whether under the
totality of the circumstances, Ms. Gustafson’s consent to the blood draw was
voluntary.
Order vacated, case remanded and jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2018
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