Com. v. Gibson, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
THOMAS V. GIBSON, ERIN C. :
TORRES, ROBERT J. DINGER, JOHN :
E. HARDISTY : No. 1153 WDA 2017
:
Appellants :
:
Appeal from the Order Entered May 19, 2017
In the Court of Common Pleas of Butler County Criminal Division at
No(s): No. 2284-2016,
No. 2319-2016, No. 2412-2016,
No. 2424-2016
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 01, 2018
Appellants, Thomas V. Gibson, Erin C. Torres, Robert J. Dinger, and John
E. Hardisty, appeal from the trial court’s order denying their motions to
suppress chemical test results. We affirm.
Each of the Appellants was charged with various offenses related to
driving under the influence of alcohol or controlled substance (“DUI”).1 The
trial court summarized the procedural history as follows:
Via Omnibus Pretrial Motions,1 [Appellants] [sought]
suppression of chemical test results obtained by way of
warrantless, consented-to blood draws. A consolidated
suppression hearing was held at which time no testimony was
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1 75 Pa.C.S. § 3802.
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presented. The only evidence submitted, a copy of the PennDOT
DL-26B (6-16) form that was revised following the decision of the
United States Supreme Court in Birchfield v. North Dakota, 136
S. Ct. 2160, 195 L. Ed. 2d 560 (U.S. 2016), was done so by
[Appellants]. It was apparently the understanding of the parties
that the issues presented were legal ones.
1Each Omnibus Motion was filed by an attorney in the
Office of the Public Defender. Assistant Public
Defender Joseph Smith argued the motions on behalf
of each [Appellant] in the above-captioned matters.
Trial Court Opinion, 5/19/17, at 1-2. The trial court denied Appellants’
motions to suppress by order entered May 19, 2017.
On June 6, 2017, Appellants filed a consolidated petition for permission
to appeal pursuant to Pa.R.A.P. 1311 (Interlocutory Appeals by Permission).
This Court granted Appellants’ petition, per curiam, by order filed August 9,
2017.2 This consolidated appeal was assigned the current appeal docket
number on the same date.
Appellants present the following issues for our review:
I. Whether the PENNDOT DL-26B (6-16) form is defective and
illegal due to being non-compliant with Pennsylvania’s implied
consent law?
II. Whether the PENNDOT DL-26B (6-16) form is illegal
because it violates the sep[a]ration of powers doctrine when the
executive branch through PENNDOT unilateral[l]y modified the
DL-26 form following the decision in Birchfield v. North Dakota,
which has the direct effect of permitting law enforcement to
continue warrantless blood draws for criminal prosecutions
usurping and infringing upon the warrant requirement of the
United States and Pennsylvania [C]onstitutions and established
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2That petition and this Court’s order were filed at appeal docket number 62
WDM 2017.
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court precedent, without any remedial action taken by the
Pennsylvania legislature?
Appellants’ Brief at 9 (unnecessary capitalization omitted).
In their first issue, Appellants argue that PennDOT’s Implied Consent
Form DL-26B (6-16) (“Form DL-26B”) was defective and illegal at the time of
their arrests because it was not compliant with the Implied Consent Law, 75
Pa.C.S. § 1547(b)(2)(ii), in effect at that time. Appellants’ Brief at 15.
Appellants maintain that the former Implied Consent Law was unconstitutional
in light of Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). Id. 3 Despite
the unconstitutionality of the statute, Appellants assert that law enforcement
was still using parts of the statute to obtain blood evidence through Form DL-
26B. Id. Appellants contend that in each of their cases, law enforcement
read to the Appellants the modified Form DL-26B to obtain blood evidence for
a criminal prosecution. Id. at 20. Appellants assert that modified Form DL-
26B specifically excludes the language codified in the former Implied Consent
Law warning of criminal penalties if testing is refused and relieved law
enforcement of their mandated duty to inform. Id. at 21-22. Appellants
argue that simply deleting the language that warned of the criminal penalties
from Form DL-26B was insufficient. Id. at 22. Appellants further assert that
everyone is “conclusively presumed to know the law,” therefore individuals
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3 We note that 75 Pa.C.S. §1547 was subsequently revised to comply with
Birchfield.
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knew of the imposed criminal penalties for failure to consent to testing, but
Form DL-26B failed to provide the warning for those criminal penalties. Id.
at 22-23. Appellants allege that, instead of seeking warrants, law
enforcement was ‘“skirting’ or ‘side-stepping’ the mandated warrant
requirement by utilizing a ‘white-washed’ DL-26B form issued by PennDOT
which deleted the mandated duty to inform.” Id. at 25. It is Appellants’
position that modified Form DL-26B could not be recognized as valid, and was
illegal at that time because it reflected only part of former Section 1547. Id.
In reviewing a challenge to the lower court’s decision to deny a
suppression motion, our standard of review is as follows:
[O]ur standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. We are
bound by the suppression court’s factual findings so long as they
are supported by the record; our standard of review on questions
of law is de novo. Where, as here, the defendant is appealing the
ruling of the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the defense
as remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa. Super. 2017) (quoting
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017)) (internal
citations omitted).
In Birchfield, 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.
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Moreover, the Supreme 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 the defendant in Birchfield consented to a blood test only
after police had informed him that he could be penalized criminally if he
refused to do so, the Birchfield Court remanded for the trial court to
“reevaluate [defendant’s] consent given the partial inaccuracy of the officer’s
advisory.” Id. However, as this Court recently explained:
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.
Birchfield, 136 S. Ct. at 2185 (emphasis added) (citations
omitted).
Commonwealth v. Smith, 177 A.3d 915, 921 (Pa. Super. 2017).
Following Birchfield, this Court held that Pennsylvania’s former implied
consent scheme was unconstitutional insofar as it threatened to impose
enhanced criminal penalties for the refusal to submit to a blood test.
Commonwealth v. Olson, ___ A.3d ___ , 2018 Pa. Super. 31, *3 (Pa. Super.
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filed February 14, 2018). See also Commonwealth v. Ennels, 167 A.3d
716, 724 (Pa. Super. 2017), reargument denied (Sept. 19, 2017) (noting that
“implied consent to a blood test cannot lawfully be based on the threat of such
enhanced penalties”); Commonwealth v. Evans, 153 A.3d 323, 330–331
(Pa. Super. 2016) (finding that police officer’s warning that the appellant could
be subject to criminal penalties for refusing to consent to a blood draw was
an incorrect statement of the law after Birchfield); Commonwealth v.
Giron, 155 A.3d 635, 636 (Pa. Super. 2017) (vacating and remanding for
resentencing after holding that “pursuant to [Birchfield] a defendant who
refuses to provide a blood sample when requested by police is not subject to
the enhanced penalties provided in 75 Pa.C.S. §§ 3803–3804”).
In this case, it is undisputed that officers read to each Appellant revised
Form DL-26B. Review of the forms reflects that Appellants were properly
advised that they would be subject only to the civil penalty of license
suspension if they refused to submit to a blood test. Thus, the warning did
not offend Birchfield. Indeed, this Court addressed a claim identical to
Appellants’ in Smith, and in it provided the following analysis:
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
[the 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
[the trooper] only informed [the appellant] that her driver’s
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license would be suspended if she refused blood testing. [The
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, [the
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 [the appellant’s] suppression motion that
vaguely cited to Birchfield.
Smith, 177 A.3d at 921-922 (footnote omitted). Accordingly, Form DL-26B
read to Appellants in the instant matter properly reflected the state of the law,
informing them that if they refused consent, they would be subject to only
civil penalties.
Furthermore, we find Appellants’ argument, that Appellants remained
subject to enhanced criminal penalties if they refused the blood test because
the Pennsylvania Legislature has not yet amended the statutory provisions, to
be without merit. As noted, this Court has deemed Pennsylvania’s former
implied consent statute unconstitutional. Ennels, 167 A.3d at 724; Evans,
153 A.3d at 330-331. As such, this statute did not constitute a basis upon
which an individual could be subjected to increased criminal penalties based
upon their failure to consent to the blood test. Indeed, it is well established
that when a statute is deemed unconstitutional, it is ineffective for any
purpose. Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa. Super.
2010).
Here, revised Form DL–26B correctly reflected the law in accordance
with Birchfield. Appellants were properly informed of the civil penalties to
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which they would be subject, namely the suspension of their licenses, if they
refused the blood draw and Appellants consented. Because the implied
consent statutory scheme had been deemed unconstitutional, Appellants could
not have been subject to criminal penalties on that basis. Thus, we cannot
agree with Appellants’ assertion that Form DL-26B was defective and illegal
at that time because it was not compliant with the former Implied Consent
Law.4 Appellants’ first claim fails.
In their next issue, Appellants argue that Form DL-26B is illegal as
violative of the separation of powers doctrine. Appellants’ Brief at 27.
Appellants assert that the executive branch through PennDOT unilaterally
modified the form following the Birchfield decision. Id. Appellants maintain
that the executive branch’s action of modifying the form, before the legislature
had acted to correct the authorizing statutory language, “violates the
separation of powers doctrine as the executive branch has usurped and
infringed upon the legislative branch and judicial precedent.” Id. at 28.
Our Supreme Court has discussed this fundamental doctrine of
separation of powers as follows:
A basic precept of our form of government is that the
executive, the legislature and the judiciary are independent, co-
equal branches of government. The dividing lines among the
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4 We further note that if the officers had warned Appellants of enhanced
criminal penalties after Birchfield was handed down, such recitation would
have constituted an incorrect statement of the law, thus rendering the DL-26B
form defective and illegal as being non-compliant with current law. Evans,
153 A.3d at 330-331.
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three branches “are sometimes indistinct and are probably
incapable of any precise definition.” Under the principle of
separation of powers of government, however, no branch should
exercise the functions exclusively committed to another branch.
The allocation of these governmental powers to three
distinct branches averts the danger inherent in the concentration
of absolute power in a single body:
The accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a
few, or many, and whether hereditary, self-appointed,
or elective, may justly be pronounced the very
definition of tyranny.
Pennsylvania State Ass’n of Jury Com’rs v. Commonwealth, 78 A.3d
1020, 1032 (Pa. 2013).
The “legislative power” in its most pristine form is the power
“to make, alter and repeal laws.” It is axiomatic that the
legislature cannot constitutionally delegate the power to make law
to any other branch of government or to any other body or
authority. The legislature may, consistent with this constitutional
axiom, delegate authority and discretion in connection with the
execution and administration of a law; it may establish primary
standards and impose upon others the duty to carry out the
declared legislative policy in accordance with the general
provisions of the enabling legislation.
While the General Assembly may, with adequate standards
and guidelines, constitutionally delegate the power and authority
to execute or administer a law, the prohibition against delegation
of “legislative power” requires that the basic policy choices be
made by the General Assembly.
Id. at 1035-1036.
The executive branch “has the power to recommend legislation and the
power and the duty to see that the laws are faithfully administered and carried
out.” Stander v. Kelly, 250 A.2d 474, 482 (Pa. 1969). “[T]he Courts have
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the power, the duty and the responsibility of interpreting the Constitution and
all legislation and determining whether legislation and presidential orders and
all other questions and issues meet or violate the requirements of the
Constitution.” Id. “[I]t is the court’s role to determine the constitutionality
of a piece of legislation.” Stilp v. Commonwealth, 905 A.2d 918, 951 (Pa.
2006). Moreover, this Court has explained that: “Ordinarily, the exercise of
the judiciary’s power to review the constitutionality of legislative action does
not offend the principle of separation of powers.” Hospital and
Healthsystem Ass’n of Pa. v. Commonwealth, 77 A.3d 587, 596 (Pa.
2013) (quoting Sweeney v. Tucker, 375 A.2d 698, 705 (Pa. 1977)).
Paramount to the separation of powers doctrine, and to the
protection of the judicial branch as a coequal, distinct, and
independent branch of government, is the “recognition that final
judgments of the judicial branch are not to be interfered with by
legislative fiat in this Commonwealth.”
Friends of Pennsylvania Leadership Charter School v. Chester County
Bd. of Assessment Appeals, 101 A.3d 66, 73 (Pa. 2014). As our Supreme
Court explained:
The legislature cannot, by an act of assembly, overrule a judicial
decision: Greenough v. Greenough, 11 Pa. 489; it may not
direct a statute to be construed in a certain way: In re East
Grant Street, 121 Pa. 596, 16 A. 366; Titusville Iron–Works
v. Keystone Oil Co., 122 Pa. 627, 15 A. 917; it cannot grant a
new trial: Dechastellux v. Fairchild, 15 Pa. 18; or order an
illegitimate child to be regarded as legitimate under terms of prior
deed: Appeal of Edwards, 108 Pa. 283; it may not change the
effect of judgments or decrees previously rendered:
Pennsylvania Company, etc., v. Scott, 346 Pa. 13, 29 A.2d
328.
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Id. at 74.
Here, the Legislature did not delegate its lawmaking authority, nor did
the executive branch usurp the Legislature’s lawmaking authority. Instead,
the judiciary concluded that, in light of Birchfield, Pennsylvania’s implied
consent statutory scheme was unconstitutional, as was within its delegation
of power. Evans, 153 A.3d at 330-331; Ennels, 167 A.3d at 724; Stander,
250 A.2d at 482. Accordingly, the executive branch, through PennDOT,5
modified Form DL-26 in order to accurately reflect the state of the law. Thus,
we cannot agree that there was a violation of the separation of powers
doctrine. Appellants present no support for their argument, other than their
general position that they “strongly argue and believe that the modification
and issuance of the DL-26B forms without legislative action was done as a
‘knee jerk’ reaction to Birchfield.” Appellants’ Brief at 33.
Indeed, revision of Form DL-26 was properly undertaken in adherence
to judicial precedent. As noted, 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 Section 1547(b)(2)(ii) following Birchfield, the effect of Birchfield
was to render the criminal penalties warned of in Section 1547(b)(2)(ii), as
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5 PennDOT belongs to the executive branch. Smires v. O’Shell, 126 A.3d
383, 391 (Pa. Cmwlth. 2015). Although decisions of the Commonwealth Court
are not binding on this Court, we may rely on them if we are persuaded by
their reasoning. In re Brown, 30 A.3d 1200, 1204 n.2 (Pa. Super. 2011).
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applied to blood testing, unenforceable. Therefore, PennDOT properly
amended Form DL-26 to correctly reflect the status of the law. Accordingly,
there was no violation of the separation of powers doctrine in PennDOT’s
amendment of Form DL-26. Appellants’ final issue lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2018
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