Com. v. Gaetano, G. ( 2017 )

J -S86021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
GARRETT J. GAETANO
Appellant : No. 449 WDA 2016
Appeal from the Judgment of Sentence February 25, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013376-2015
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED: April 4, 2017
The circumstances of this case do not run afoul of the precedent set
forth in Birchfield v. North Dakota, U.S. , 136 S.Ct. 2160, 2186,
195 L.Ed.2d 560 (2016) in which the Supreme Court of the United States
held that motorists suspected of driving under the influence "cannot be
deemed to have consented to submit to a blood test on pain of committing a
criminal offense." Appellant's consent to the blood draw was valid as he was
not threatened that a blood draw refusal would lead to criminal penalties,
but was simply informed that a blood draw refusal would lead to license
suspension and other civil penalties through PennDOT. As it is unnecessary
to remand this case for further development, I respectfully dissent.
* Former Justice specially assigned to the Superior Court.