M.P. Dec v. PennDOT, Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew P. Dec, :
Appellant :
:
v. : No. 1276 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing : Submitted: August 26, 2022
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: November 18, 2022
Matthew P. Dec (Licensee) appeals, pro se, from the October 15, 2021 Order
of the Court of Common Pleas of Butler County (Trial Court), which denied his
statutory appeal from the 18-month suspension of his operating privilege imposed
by the Department of Transportation, Bureau of Driver Licensing (DOT). DOT
imposed the suspension due to Licensee’s refusal to submit to chemical testing
pursuant to Section 1547(b)(1)(ii) of the statute commonly known as the Implied
Consent Law, 75 Pa. C.S. § 1547(b)(1)(ii),1 in connection with his arrest for driving
1
Section 1547(b)(1)(ii) provides in pertinent part:
(1) If any person placed under arrest for a violation of [S]ection 3802 [of the
Vehicle Code, 75 Pa. C.S. § 3802 (relating to driving under the influence of alcohol
or a controlled substance),] 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,
[DOT] shall suspend the operating privilege of the person as follows:
....
(ii) For a period of 18 months if any of the following apply:
(Footnote continued on next page…)
under the influence of alcohol or a controlled substance (DUI). We affirm the Trial
Court’s Order and dismiss as moot Licensee’s Motion for Expedited Decision.
Background
On September 25, 2020, Licensee was driving a pickup truck on Route 8 in
Center Township, Butler County. Trial Ct. 1925(a) Op., 1/7/22, at 1. Pennsylvania
State Trooper Matthew Stimac initiated a traffic stop of the truck for multiple traffic
violations. Id. During the stop, Trooper Stimac observed an open container of
alcohol inside the vehicle and smelled an odor of alcohol emanating from the
vehicle. Id. A passenger inside the truck was also in possession of marijuana. Id.
When Trooper Stimac asked Licensee if he had consumed any alcohol, Licensee
responded that he had. Id. at 1-2.
Trooper Stimac performed field sobriety and impaired driving enforcement
tests at the scene, which indicated that Licensee was impaired. Id. at 2. Trooper
Stimac placed Licensee under arrest for suspicion of DUI. Id. Trooper Stimac asked
Licensee if he would submit to a drug recognition evaluation, and Licensee agreed.
Id.
Trooper Stimac transported Licensee to the State Police barracks for further
testing. Id. A portable breath test performed on Licensee was positive for alcohol.
Pennsylvania State Trooper Philip Treadway, a certified drug recognition expert,
evaluated Licensee. The evaluation resulted in more than the required number of
(A) The person’s operating privileges have previously been suspended
under this subsection.
(B) The person has, prior to the refusal under this paragraph, been sentenced
for[] . . . an offense under [S]ection 3802[] . . . .
75 Pa. C.S. § 1547(b)(1)(ii).
2
indicators to signify impairment. Id. Trooper Treadway concluded that Licensee
was not capable of safely operating his vehicle due to impairment caused by alcohol
and marijuana. Id.
Licensee was then transported to Butler Memorial Hospital for a blood test.
Id. Trooper Treadway read the implied consent warnings on DOT’s DL-26B Form2
to Licensee, informing him of the consequences of refusing to consent to chemical
testing. Id. Trooper Stimac observed Trooper Treadway read the DL-26B Form to
Licensee. Id.
After reading the required sections of the DL-26B Form, Trooper Treadway
asked Licensee if he would submit to a chemical blood test. Id. Licensee stated that
he would agree to a blood test only if the Troopers first obtained a search warrant.
Id. The Troopers deemed this response a refusal. Id. Both Troopers signed the DL-
26B Form, certifying that they had read the implied consent warnings to Licensee
2
The DL-26B Form warnings are as follows:
1. You are under arrest for driving under the influence of alcohol or a controlled
substance in violation of Section 3802 of the Vehicle Code.
2. I am requesting that you submit to a chemical test of blood.
3. 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, your operating privilege will
be suspended for up to 18 months. If your operating privilege is suspended for
refusing chemical testing, you will have to pay a restoration fee of up to $2,000 in
order to have your operating privilege restored.
4. You have no right to speak with an attorney or anyone else before deciding
whether to submit to testing. If you request to speak with an attorney or anyone
else after being provided these warnings or you remain silent when asked to submit
to a blood test, you will have refused the test.
DOT Br., App. A.
3
and had given him the opportunity to submit to chemical testing. Licensee refused
to sign the DL-26B Form. Id.; see DOT Br., App. A.
On October 16, 2020, DOT notified Licensee that his operating privilege was
suspended for 18 months, effective November 20, 2020, for his failure to submit to
chemical testing on September 25, 2020. Licensee filed a statutory appeal with the
Trial Court, which held a de novo hearing on October 15, 2021.3
Following the hearing, the Trial Court entered an Order denying Licensee’s
appeal. In its subsequent Pa.R.A.P. 1925(a) Opinion, the Trial Court rejected
Licensee’s assertion that the United States Supreme Court’s decision in Birchfield
v. North Dakota, 579 U.S. 438 (2016), required the Troopers to obtain a search
warrant before requesting a blood test. The Trial Court concluded that “[t]he statutes
at issue before the Birchfield Court[] . . . were criminal statutes with criminal
penalties, and not civil, administrative remedies,” and, therefore, Birchfield does
“not apply to civil license suspensions for refusal to submit to a chemical blood test.”
Trial Ct. 1925(a) Op., 1/7/22, at 3-4. The Trial Court also concluded that Licensee’s
“statement that he would not submit to a chemical blood test without the Troopers
first procuring a search warrant constitute[d] a refusal to submit to chemical testing
in violation of” the Implied Consent Law. Id. at 4. Licensee now appeals to this
Court.4
3
Licensee was not represented by counsel in the proceedings before the Trial Court.
4
This Court’s review is limited to determining whether the Trial Court committed an error
of law or abused its discretion or whether the Trial Court’s factual findings are supported by
substantial evidence. Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 954 A.2d 761,
765 n.3 (Pa. Cmwlth. 2008).
4
Issues
Licensee presents three issues for this Court’s review: (1) whether the Trial
Court erred in concluding that Trooper Treadway was not required to obtain a search
warrant before requesting a blood sample from Licensee; (2) whether the Trial Court
erred in finding that Licensee refused chemical testing when he asked Trooper
Treadway to obtain a search warrant after reading the implied consent warnings to
Licensee; and (3) whether the Troopers committed a federal crime by punishing
Licensee for requesting that they obtain a search warrant before requesting a blood
sample.
Analysis
1. Search Warrant
Relying on Birchfield, Licensee first asserts that “a warrant is required to draw
blood from a motorist thereby nullifying the ‘Implied Consent’ doctrine that was
formally observed within this Commonwealth.” Licensee Am. Br. at 6. We
disagree.
In Birchfield, the Supreme Court, applying a Fourth Amendment analysis,
reviewed state laws in North Dakota and Minnesota that made it a crime for a
motorist arrested for DUI to refuse a warrantless blood test. The Birchfield Court
held that a state may not criminally prosecute a motorist for refusing a request for a
warrantless blood test following a DUI arrest. In Pennsylvania, however, a licensee
arrested for DUI has a right to refuse chemical testing, see 75 Pa. C.S. § 1547(b)(1)
and (b.1)(1); Com. v. Eisenhart, 611 A.2d 681, 684 (Pa. 1992),5 and it is not a crime
for a licensee arrested for DUI to refuse chemical testing. Consequently, Birchfield
is distinguishable. In fact, the Supreme Court expressly limited its holding to
5
Eisenhart was subsequently overruled in part on other grounds by Commonwealth v.
Myers, 164 A.3d 1162 (Pa. 2016).
5
implied consent laws imposing criminal penalties, stating that “nothing we say here
should be read to cast doubt on” state “implied[ ]consent laws that impose civil
penalties and evidentiary consequences on motorists who refuse to comply.”
Birchfield, 579 U.S. at 476-77.
Furthermore, in Boseman v. Department of Transportation, Bureau of Driver
Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017), this Court held that Birchfield is
inapplicable to a civil license suspension imposed by DOT for a licensee’s refusal
to submit to a blood test under the Implied Consent Law. We explained:
[A] license suspension stemming from a refusal to submit to chemical
testing is a separate administrative proceeding from a criminal DUI
proceeding arising out of the same incident. It is not a crime to refuse
chemical testing under Pennsylvania’s Implied Consent Law.
....
. . . Birchfield addressed the constitutionality of a [s]tate statute that
made it a crime to refuse a warrantless blood test after being arrested
for DUI. In short, although Birchfield may have some impact in
criminal DUI proceedings in Pennsylvania where enhanced penalties
based on a refusal of a blood test are imposed, such is not the case
before us in this civil license suspension appeal under the Implied
Consent Law. Consequently, [the l]icensee’s Fourth Amendment
challenge to the Implied Consent Law fails.
Boseman, 157 A.3d at 21 (internal citation omitted) (second emphasis added).
This Court has repeatedly reaffirmed its holding in Boseman in subsequent
decisions. See, e.g., Patane v. Dep’t of Transp., Bureau of Driver Licensing, 192
A.3d 335, 349 (Pa. Cmwlth. 2018) (en banc) (“We reiterate here again that Birchfield
does not apply to civil license suspension proceedings.”); Renfroe v. Dep’t of
Transp., Bureau of Driver Licensing, 179 A.3d 644, 651 (Pa. Cmwlth. 2018) (en
banc) (“Consistent with our decisions in Boseman and Marchese [v. Department of
6
Transportation, Bureau of Driver Licensing, 169 A.3d 733 (Pa. Cmwlth. 2017)], we
conclude that the trial court did not err by holding that Birchfield does not apply to
civil license suspensions.”); Garlick v. Dep’t of Transp., Bureau of Driver Licensing,
176 A.3d 1030, 1037 (Pa. Cmwlth. 2018) (en banc) (“We have held that Birchfield
does not invalidate a civil license suspension based on an argument that a warrant
was required to obtain the requested blood test.”); Fetherman v. Dep’t of Transp.,
Bureau of Driver Licensing, 167 A.3d 846, 854 (Pa. Cmwlth. 2017) (“Birchfield, by
its own language, does not apply to civil suspensions under Pennsylvania’s Implied
Consent Law.”). Consistent with this binding precedent, we conclude that Birchfield
is inapplicable to this case, and, therefore, Trooper Treadway was not required to
obtain a search warrant before requesting that Licensee submit to a blood test.
2. Chemical Test Refusal
Next, Licensee asserts that he never actually refused a chemical blood test
because he merely asked Trooper Treadway to first obtain a search warrant.
Licensee Am. Br. at 7. We disagree.
It is well settled that when a police officer requests one of the chemical tests
authorized by the Implied Consent Law, “any response from a licensee that is
‘anything less than an unqualified, unequivocal assent’ to submit to testing
constitutes a refusal.” Todd v. Dep’t of Transp., Bureau of Driver Licensing, 723
A.2d 655, 658 (Pa. 1999) (citation omitted) (emphasis added); see also Factor v.
Dep’t of Transp., Bureau of Driver Licensing, 199 A.3d 492, 497 (Pa. Cmwlth.
2018) (“Pennsylvania courts have long and consistently held that anything less than
7
an unqualified, unequivocal assent to submit to chemical testing constitutes a refusal
to consent thereto.”).6
Here, Licensee did not reply affirmatively when Trooper Treadway asked that
he submit to a blood test. Instead, Licensee insisted that Trooper Treadway first
obtain a search warrant. Because Licensee had no right to demand a search warrant,
as explained above, his demand for a search warrant was not “an unqualified,
unequivocal assent” to submit to the blood test under our case law. Therefore, the
Trial Court correctly determined that Licensee refused chemical testing when he did
not consent to Trooper Treadway’s request for a blood test at the hospital.
3. Federal Crime
Lastly, Licensee asserts that two federal statutes – 18 U.S.C. § 241 (relating
to conspiracy against rights) and 18 U.S.C. § 242 (relating to deprivation of rights
under color of law)7 – make it a federal crime for police officers to threaten and
6
“The question of whether a licensee refuses to submit to a chemical test is a legal one,
based on the facts found by the trial court.” Nardone v. Dep’t of Transp., Bureau of Driver
Licensing, 130 A.3d 738, 748 (Pa. 2015).
7
18 U.S.C. § 241 provides in relevant part:
If two or more persons conspire to injure, oppress, threaten, or intimidate any
person in any State, Territory, Commonwealth, Possession, or District in the free
exercise or enjoyment of any right or privilege secured to him by the Constitution
or laws of the United States, or because of his having so exercised the same[] . . .
[t]hey shall be fined under this title or imprisoned not more than ten years, or both[]
....
18 U.S.C. § 242 provides in relevant part:
Whoever, under color of any law, statute, ordinance, regulation, or custom,
willfully subjects any person in any State, Territory, Commonwealth, Possession,
or District to the deprivation of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States, or to different
(Footnote continued on next page…)
8
punish a person “for exercising [his c]onstitutional [r]ight to request a warrant.”
Licensee Am. Br. at 11. In particular, he contends that “[t]o civilly punish a citizen
for the ‘infraction’ of exercising [his r]ight to request a warrant prior to consenting
to [a] blood draw is a violation of the 5th Amendment” to the United States
Constitution. Id. at 5, 12. We conclude that Licensee has waived this claim.
Licensee did not raise this issue in the proceedings before the Trial Court.
Licensee also failed to raise this issue in his Pa.R.A.P. 1925(b) Statement, and, as a
result, the Trial Court did not address the issue in its Pa.R.A.P. 1925(a) Opinion.
Therefore, this issue is waived. See Pa.R.A.P. 302(a) (“[I]ssues not raised in the
[trial] court are waived and cannot be raised for the first time on appeal.”); Pa.R.A.P.
1925(b)(4)(vii) (stating that issues not included in the appellant’s Pa.R.A.P. 1925(b)
statement are waived).
Conclusion
Accordingly, we affirm the Trial Court’s Order and dismiss as moot
Licensee’s Motion to Expedite Decision.
punishments, pains, or penalties, on account of such person being an alien, or by
reason of his color, or race, than are prescribed for the punishment of citizens, shall
be fined under this title or imprisoned not more than one year, or both[] . . . .
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew P. Dec, :
Appellant :
:
v. : No. 1276 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
PER CURIAM
ORDER
AND NOW, this 18th day of November, 2022, the October 15, 2021 Order of
the Court of Common Pleas of Butler County is hereby AFFIRMED, and Matthew
P. Dec’s Motion to Expedite Decision is hereby DISMISSED AS MOOT.