Com. v. Cernick, J.

J-A29012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
JOHN M. CERNICK
Appellant : No. 473 WDA 2021
Appeal from the Judgment of Sentence Entered March 22, 2021
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000073-2020
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: January 13, 2022
Appellant, John M. Cernick, appeals from the judgment of sentence of
72 hours’ to 6 months’ incarceration, imposed following his conviction on two
counts of driving under the influence of a controlled substance (DUI), 75
Pa.C.S. § 3802(d)(1)(i) and (d)(1)(iii). Herein, Appellant challenges the
denial of his motion to suppress the results of a warrantless blood draw. After
careful review, we affirm.
The facts of this case are not in dispute for purposes of this appeal.
Corporal Greg Hoover of the Pennsylvania State Police (PSP) conducted a
traffic stop of Appellant’s daughter, an unlicensed driver. N.T., 11/25/20, at
6-7. Corporal Hoover ultimately called Appellant and “asked him if he could
come to the scene to pick her up....” Id. at 8. Corporal Hoover noticed that
* Retired Senior Judge assigned to the Superior Court.
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Appellant’s speech was slow on the phone and advised him not to come unless
he was sober. Id. Appellant arrived 20-30 minutes later, driving a Ford
pickup truck. Id. at 9, 18.
Corporal Hoover’s suspicion of Appellant’s intoxication only increased
upon Appellant’s arrival at the scene. The officer observed that Appellant “was
just slow to answer questions and he didn’t really want to answer questions.
And when he did, it was just slow speech and [he] just kept kind of looking
around and never really had direct eye contact with me.” Id. at 10. Further,
Corporal Hoover got the impression that Appellant “didn’t seem too concerned
really about ... the whole situation. I mean, just the way he was—his slow
speech. It was almost as if he was—like he was tired and just—his actions
were very slow.” Id. Upon further questioning, Appellant denied that he had
been drinking. Id. at 10-11.
Appellant consented to field sobriety tests, although he told Corporal
Hoover that he was tired and that he had issues with his back. Id. at 12.
Corporal Hoover indicated that Appellant showed further signs of impairment
during the tests. Id, at 12-15. Additionally, the officer stated that Appellant
had glossy and bloodshot eyes, and that “the top of his tongue was green.”
Id. at 15. These signs indicated to Corporal Hoover the possibility that
Appellant was under the influence of marijuana. Id. When Corporal Hoover
asked Appellant if he had recently smoked marijuana, Appellant replied that
it had “been a while.” Id. at 16.
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Corporal Hoover arrested Appellant upon suspicion of DUI and
transported him to Corry Hospital, where Appellant was read “the warning on
the DL-26[B] [form] verbatim...." Id. at 17. Subsequently, both Corporal
Hoover and Appellant signed the form. Jd. The DL-26B form warned
Appellant, inter alia, as follows:
It 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.
Commonwealth’s Exhibit No. 2 (attached to Appellant’s Brief as Appendix B)
(emphasis added).
The Commonwealth charged Appellant with two counts of DUI.!
Appellant filed a motion seeking suppression of the results of the blood draw,
which had shown that Appellant had both active and secondary metabolites of
marijuana in his system. See N.T., 11/25/20, at 30.2 Specifically, Appellant
argued that, under Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), and
Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016), the DL-26B
form’s warning regarding a potential restoration fee of $2,000 constituted a
1 The Commonwealth also charged Appellant with careless driving, 75 Pa.C.S.
§ 3714, but he was not convicted of that offense.
2 The parties stipulated to the results of the blood test. Id.
- 3 -
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threat of a criminal punishment, rendering his consent to the blood test
involuntary. See Appellant’s Omnibus Pretrial Motion, 3/3/20, at 4 4 14.
The trial court issued an order and opinion denying Appellant’s motion
to suppress on April 23, 2020. The court ruled without the benefit of a
suppression hearing, stating that resolution of the suppression motion “did
not require a hearing or argument, even assuming the truth of all factual
averments therein.” Trial Court Opinion (TCO), 4/23/20, at 1 n.2.3 Following
a non-jury trial held on November 25, 2020, the trial court found Appellant
guilty of both counts of DUI, and not guilty of careless driving. The DUI
offenses merged for sentencing purposes. On March 22, 2021, the trial court
sentenced Appellant as stated above.
Appellant filed a timely notice of appeal, and a timely, court-ordered
Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion
on April 25, 2021.4 Appellant now presents the following question for our
review: “Was Appellant’s consent to the warrantless blood draw rendered
unknowingly, unintelligently[,] or involuntarily, and was it otherwise the
product of intimidation, coercion[,] and duress?” Appellant's Brief at 2.
3 Pa.R.Crim.P. 581(E) mandates that a trial court schedule a hearing “in
accordance with Rule 577” in response to a motion to suppress. Rule
577(A)(2) confers general discretion to a trial court to determine whether a
hearing is required upon the filing of any motion. Appellant does not contest
the trial court’s decision to rule without the benefit of a hearing in this appeal.
4 In its Rule 1925(a) opinion, the trial court indicated that it was relying on
the reasoning set forth in the TCO for denying Appellant’s suppression motion.
See Rule 1925(a) Opinion, 4/25/21, at 1-2.
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Appellant asks this Court to reverse the order denying his motion to
suppress the blood draw.
Our 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, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where
... the appeal of the determination of the suppression court turns
on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)
(cleaned up).
Specifically, Appellant maintains that his consent to the warrantless
blood draw in this case was invalid under Birchfield and Evans, arguing that
the potential of a $2,000 restoration fee referenced in the DL-26B “is so
punitive in purposes and effect as to violate [A]ppellant’s state and federal
right to be free from unreasonable warrantless searches and seizures.”
Appellant’s Brief at 4. In Birchfield, the Supreme Court of the United States
concluded that “the search incident to arrest doctrine does not justify the
warrantless taking of a blood sample[.]” Birchfield, 136 S.Ct. at 2185.
Furthermore, the Birchfield Court held “that motorists cannot be deemed to
J-A29012-21
have consented to submit to a blood test on pain of committing a criminal
offense.” Id. at 2186.
Thereafter, this Court decided ... Evans ..., in which the appellant
had ... 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 [C]ourt
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 2185-86). This Court pointed ... to the
DUI penalty provisions set forth in 75 Pa.C.S.[] § 3804:
Section 3804(c) provides that an “individual who violates
[SJection 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.[] §
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. [ZId.] at 331. As a result, this Court
vacated [Evans]’s sentence and the suppression order and
remanded with instructions for the trial court to reevaluate the
voluntariness of [his] consent in light of this inaccurate warning
and the totality of the circumstances.
Commonwealth v. Smith, 177 A.3d 915, 921 (Pa. Super. 2017).
Instantly, Appellant argues that he
consented to a blood draw only after he was read Form DL-26[B]
and advised that refusal to consent would result in certain
penalties, including “a restoration fee of up to $2,000.”
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J-A29012-21
[Appellant]’s consent was invalid under Birchfield and Evans.
Despite the General Assembly’s categorizing the $2,000
assessment as a “civil” penalty and labeling it a “fee,” it is actually
a fine, #.e., criminal punishment. [Appellant], therefore, only
consented to a blood draw upon being threatened with criminal
punishment.
Appellant’s Brief at 6 (citation omitted). Thus, Appellant contends that, like
the defendant in Evans, he is entitled to relief because the warning he was
read from the DL-26B form misrepresented the consequences of refusal by
presenting a de facto criminal punishment as a civil restoration fee.
The trial court rejected the premise of Appellant’s claim that the
potential $2,000 fee was more akin to a criminal punishment than a civil
penalty. Applying the seven-factor test set forth in Kennedy v. Mendoza-
Martinez, 372 U.S. 144 (1963), the trial court found that most of the
Mendoza-Martinez factors weighed against finding the potential $2000
restoration fee to be punitive rather than civil in nature. See TCO at 10 (“On
balance, therefore, [the potential $2,000 fee] is not so punitive as to negate
its designation as a civil penalty.”). Consequently, the trial court determined
that there is “no merit to [Appellant]’s argument that his consent was based
upon inaccurate warnings.” Id. at 11.
In supporting the reasoning of the trial court, the Commonwealth notes
that this Court rejected similar arguments concerning the restoration fee in
two recent, but non-precedential decisions in Commonwealth v. Verbeck,
253 A.3d 266 (Pa. Super. 2021) (unpublished memorandum), and
Commonwealth v. Smith, 245 A.3d 1078 (Pa. Super. 2020) (unpublished
J-A29012-21
memorandum).> The Commonwealth urges this Court “to follow the rationale
in these previous cases....” Commonwealth’s Brief at 12.
We agree with the trial court that the restoration fee referenced in the
DL-26B form does not constitute a de facto criminal punishment and, in
reaching that conclusion, we adopt the trial court’s thorough and well-
reasoned analysis as our own.© See TCO at 3-11. Consequently, because the
restoration fee is not a de facto criminal punishment despite its designation
as a civil penalty, we conclude that Appellant is not entitled to relief under
Birchfield and Evans. Thus, we conclude that the trial court did not err in
denying Appellant’s motion to suppress the results of the warrantless blood
draw.
Judgment of sentence affirmed.
Judge Bowes joins this memorandum.
Judge Pellegrini concurs in the result.
“a
> “Non-precedential decisions ... may be cited for their persuasive value.
Pa.R.A.P. 126(b)(2).
6 Although this Court’s decisions in Verbeck and Smith also concluded that
the potential $2,000 restoration fee mentioned in form DL-26B is a civil
penalty rather than a criminal punishment, those decisions addressed
somewhat different arguments than those presented by Appellant.
Accordingly, as Appellant’s arguments were more directly addressed by the
trial court in its analysis under Mendoza-Martinez, we do not rely on either
Verbeck or Smith for their persuasive value in reaching our disposition in
this case.
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J-A29012-21
Judgment Entered.
Joseph D. Seletyn, Es
Prothonotary
Date: 1/13/2022
+ Circulated 12/06/2021 bs -40 AM
+ oe a ~. 43
"FILED
Zz
2070 APR 23 PH 3: hb
CLERK OF GQURTS
- ORAWEORD GOURTY, PA,
IN THE COURT OF COMMON PLEAS OF CRAWFORD COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : |
Vv. No. CR 73 - 2020
JOHN MATTHEW CERNICK, '
Defendant :
MEMORANDUM and ORDER
John F. Spataro, J. .
The Defendant, John Matthew Cernick (“Cernick”), has filed an omnibus
pretrial motion aune pro tunc to suppress test results obtained afte? he
consented to having his blood drawn following a traffic stop on September 27,
2019.1 His motion will be denied for the reasons stated in this memorandum. ?
CERNICK'S MOTION
t
Cernick’s blood was drawn after he was read the Pennsylvania
Department of Transportation’s new DL-26B form, warning him that refusing
t
to submit to chemical testing would result in the suspension of his operating
? Cernick had filed, on February 7, 2020, a written waiver of his appearance at formal
arraignment, scheduled for February 14, 2020, and the motion was filed within thirty ‘days
thereafter, on March 3, 2020, See Pa.R.Crim.P. 579(A), 581(8); Cra.R.Crim.P. 571(2}(b),
? The undersigned has determined that the motion does not require a hearing or argument,
even assuming the truth of all factual averments therein. SeePa.R.Crim.P. S81(E), 577(A)(2).
CR 73-2020
Privileges, and a fee of up to two thousand dollars to have them restored,3-4
Cernick contends that the restoration fee is in actuality a fine, despite being
labeled a civil penalty.> Fines, he asserts, constitute criminal punishment.
Commonwealth Y. Rivera, 95 A.3d 913, 916 (Pa. Super. 2014) (distinguishing
fines from costs and restitution, which are “designed to have the defendant
make the government and the victim whole”) (gq voting Commonwealth v. Wall
867 A.2d 278, 583 (Pa. Super, 2005). The restoration fees* criminal nature,
he adds, is highlighted by its recidivist structure,® See ALS. ¥. Pennsylvania
State Police, 636 Pa. 403, 423-24, 143 A.3d 896, 908 (2016) (Donahue, J.,
concurring) ("a statute embodying a recidivist philosophy evinces a legislative
intent ‘to punish more severely offenders who have persevered in criminal
activity despite the theoretically beneficial effects of penal discipline.”)
(quoting Commonwealth v. Dickerson, 533 Pa. 294, 299, 621 A.2d 990, 992
(1993}). The fee provisions of Section 1547 were only added, he notes, after
sentencing enhancements for refusal were invalided.. See Commonwealth v. ’
Giron, 155 A.3d 635, 639-40 (Pa. Super. 2017); 75 Pa. C.S. §§ 3803, 3804.
? The restoration fee is one of the penalties for refusal mandated by the implied consent law,
75 Pa.c.S. § 1547. .
* The DL-268 form read by the arresting offlcer is not, as indicated in the motion ¢ 2),
attached as an exhibit. Its absence Is inconsequential because the statute requires “the police
officer to inform the person that: (i) the person’s operating privilege will be suspended upon
refusal to submit to chemical testing and the person will be subject to a restoration fee of up
to $2,000 ...7 75 Pa.c.S.A. § 1547(b)(2)(i). Cernick avers that he consented after being
read tha DL-26B form. Ja, 99 2, 7. If his consent preceded its reading, there would be no
basts for suppression. See Commonwealth Maser, 188°A.3d 478, 482-83 (Pa, Super. 2018).
* Subsection (b) Is titled, “Civil penalties for refusal,”
§ The fee increases from $500 to $1,000 for a prior suspension under Section 1547, and.
$2,900 for two or more prior suspénsions. 75 Pa.C.S. § 1547(b.2){1).
2
CR 73-2020
i eo a ee
A criminal penalty for not consenting to a blood draw, Cernick continues,
js unlawful under Birchfield v. North Dakota, 579 U.S. —, 136 S.Ct. 2160, 195
1.Ed.2d 560 (2016). He was, therefore, misinformed when read the DL-26B
form. as to the possible penalties for refusing chemical testing. He concludes
that his consent Is invalidated by this misinformation, and that the warrantless
blood draw was, consequently, an illegal search of his person, and thus: his
blood test results must be suppressed. See Commonwealth v. Strickler, 563
Pa. 47, 56, 757 A.2d 884, 888 (2000) ("A search conducted without a wartant
is deemed to be unreasonable and therefore constitutionally impermissible,
unless an established exception applies”); Commonwealth v. Evans, 153 Aad
323 (Pa. Super. 2016).’
DISCUSSION
A fee, as Cernick notes, has been defined as “{a] charge or saymient for
labor or services.” Black’s Law Dictionary 732 (10th ed, 2014); Mot. § 9, [The
restoration fee, he asserts, “has nothing to do with any actual costs incurred
by the government as a result of the refusal of blood testing or jthe
reinstatement of a driver’s license,” Mot, § 11. His*coritention is belied by
the fact, as he concedes, that a fee is always charged. “to restore a person's
? Cernick erroneously ‘contends that the Superior Court held In Evans“that blood test results
obtained through consent must be suppressed where the defendant ‘only consented to the
warrantless blood draw after belng [mls]informed, by the police, that refusal to submit te the
test could resuit In. enhanced criminal penalties.” Motion 4 6. The vans Court, however,
instead “remand{ed] the case to the trial court to ‘reevaluate [Appellant's] consent ... [, based
upon] the totality of all the clrcumstances ... [and] given: the partlal inaccuracy.of the officer's
advisory. Sirchfie/d, 136 S.Ct, at 2186.” The Superior Court has subsequently held, however,
that"Sirchfe/amakes plain that the police may not threaten enhanced punishment for réfusing
a blood test in order to obtain consent.” Commonwealth v. Ennels, 167 A.3d 716, 724 (2017).
3
CR 73-2020 .
operating privilege ... following a suspension.” Jd, § 12; 75 Pa.C.S. §§ 1379(c),
1380, 1786(d), 1960; see Rossi v. Dep't of Transp., Bur. of Driver Licensing,
580 Pa. 238, 860 A.2d 64 (2004) (operating privileges remain suspended until
administrative steps, including payment of the restoration fee, are
completed); Burgess v. Dep't of Transp., Bur. of Driver Licensing, 991, aoa
1014 (Pa. Cmwith. 2010) (license suspension did not end until the restoration
‘fee was paid). The fee thus relates to a service performed by PennDOT, |
. I
Being a monetary amount does not corivert the fee into a “fine,” which,
in any event, has been defined as “[a] pecuniary criminal punishment or evi
penalty payable to the public treasury.” Black’s Law Dictionary 750 (10th led,
2014) (emphasis added). Cernick’s reliance upon Rivera in declaring the|fee
to be ‘punishment Is misplaced. Mr. Rivera had. been ordered at sentencing to
pay $500 for the “cost of the Public Defender’s representation.” The Superior
Court, in vacating his sentence, held that this assessment did not qualify as
an allowable “fine” under the Sentencing Code® because it was “not intented
. to ‘punish’ Rivera or ensure that he ‘does not receive a pecuniary gain from
the offense.” 95 A.3d at 916. The restoration fee likewise has nothing a do
with any pecuniary gain from refusing a blood draw, and even civil penalties
may be said to “punish.” The fee also is not, as in Afvera, imposed by a judge
upon a criminal conviction, but rather on-the refusal to comply with a condition
placed upon the exercise of operating privileges.
' § A court, as a condition of probation, “may require the defendant ... to pay such fine as has |
been Imposed.” 42 Pa.C.S. § 9754{c)(11).*
4
CR 73 ~ 2020
, 1
It Is for this reason that Wai is equally inapposite. The Wei Court
applied a direct versus collateral consequence analysis in evaluating a
monetary “cost” imposed upon conviction for driving under the Influence (DUI) .
of alcohol. 867 A.2d at 581-82 (*Historically, courts have reviewed analogous
monetary Measures Imposed at sentencing, ie., costs, fines, or restitution,
under a direct or collateral consequence analysis to determine if the measure
constitutes punishment.”)}. The assessment there was found to constitute
punishment because It was a direct consequence of the appellant's sentence.
The proper method “for determining whether a statute is so punitive as
to negate a legislature’s intention to Identify the scheme as civil’ ts to consider
the factors listed. in Mendoza-Martinez, 372 U.S. 144, 83 S.Ct, 554, 9 L.ed.2d
644 (1963).° Commonwealth v. Butler, — A.3d —, 2020 WL 1466299, No! 25
WAP 2018 (Pa. March 26, 2020) (holding that newly enacted fifetime
registration, notification, and counseling (RNC) requirements applicable to
felons adjudicated sexually violent predators (SVPs) were not punitive); 10
accora Commonwealth v. Abraham, 619 Pa. 293, 306-9, 62 A.3d 343, 351-53
|
(2012) (forfeiture of teacher’s pension was “not so punitive in force or effect
|
® The seven factors are “[Wjhether the sanction involves an affirmative disabllity or restraint,
whether It has historically been regarded as a punishment, whether it comes Into play only
on a finding of sclenter, whether its operation will promote the traditional aims of
punishment—retribution and deterrence, whether the behavior to which It applies is already.
@ crime, whether an alternative purpose to which it may rationally be connected ts assignable
for it, and whether it appears excessive in relation to the alternative purpese assigned,” 1372
U.S. at 168-69, 83 S.Ct. at 568 (footnotes omitted).
79 There is ordinarily a two-stage process, with an initial Inquiry as to whether the Legislature
intended the scheme to be nonpunitive: See 2020 WL 1466299 at *10-*11, The first step is
unnecessary here due to the designation of the fee as a civil penalty. See n.5, supra.
5
CR 73 ~ 2020 ;
as to negate the legislative intent that it be a civil, remedial provision”); Factor
v. Dept of Transp., Bur. Of Driver Licensing, 199 A.3d 492, 500 (Pa. Cmwith.
2018) (finding the sanction of a one year driver’s license suspension oon
refusing to consent to chemical testing was not “so punitive as to transform
an intended civil remedy into a criminal penatty”). The. implied consent law’s
entire statutory scheme must be considered in weighing these seven factors.
Butler, 2020 WL 1466299 *11 (quoting Commonwealth v. Muniz, 640 Pa. 699,
732, 164 A.3d 1189, 1208 (2017)). | |
Weighing the Mendoza-Martinez Factors :
The Imposition of an enhanced restoration fee’ does not, In regard to lhe
first factor, involve an affirmative disability or restraint. See, @.g., Kozieniak
¥. Dept of Transp., Bur. of Driver Licensing, 100 A.3d 326, 331 (2014) (one
year license suspension “is not an affirmative restraint, such as Incarceration
and deportation”}. The fee instead removes a’ disability caused by the
suspension of a privilege, and not a constitutional right. Commonwealth v.
Bel, 167 A.3d 744, 747 (Pa. Super. 2017) (“Our courts have established that )
driving is a privilege, not a fundamental right.”), afFd, 211 A.3d 761 (Pa.
2019). Restoration of operating privileges by payment of the fee is, moreover,
entirely optional.
Regarding the second factor, a fee has not: historically been considéred
Punishment. See Rivera, supra. As noted above, a restoration fee is ssematel
regardless of the circumstances under which Operating privileges have been
CR 73-2020
A ae ee eee oe
withdrawn. The fee is linked to a license suspension, which historically has
not been regarded ds punishment — even when resulting from a criminal
conviction. Commonwealth v. Duffey, 536 Pa. 436, 440, 639 A.2d 1174, 1176
(1974) (Courts of this Commonwealth have consistently recognized that a
license suspension js a collateral civil consequence of a criminal conviction”);
Factor, 199 A.3d at 498 (“we note that this Court has definitively stated tat
license suspensions imposed pursuant to the Implied Consent Law are civil,
“not criminal, sanctions”); see also, 4.g,, Kozieniak, supra (applying the
Mendoza-Martinez favors and finding ‘that a one-year disqualification from
‘holding a commercial driver's license was a civil rather than punitive penalty.
for DUI - high rate ‘of alcohol); Commonwealth v. Wolfe, 684. A.2d 642, a54
Pa.Super. 93 (1996) {driver's license suspension for refusal to consent to
chemical testing is a civil sanction).
As for the third factor, the fee does not “come into play only on a finding
of scienter,"!1 because it is not based upon criminal conduct, but rather ithe
exercise of a statutory right of refusal. See 75 Pa.C.S. § 1547(b)(2);!2 Factor,
199 A.3d at 501 (this factor weighs against a determination that the ungiee
consent law is punitive because “{Penn]DOT need not prove sclenter in a
refusal-based license suspension appeal” , fF. Buller, 2020 WL 1466299 14
11 Butler defines scienter “as ‘[a] degree of knowledge that makes a person legaily responsible
: ‘forthe consequences of his or her act or omission[.]” 2020 WL 1466299 at *10 n.1G (quoting
Black’s Law Dicttonary).
7 subsection (b)(2) provides that "[I]f any person placed under arrest for.a violation of section
3802 Is requested to submit to chemical testing and refuses to do so, the testing shall not be
conducted ....”
- 7
~+
. ly
CR 732020
(“the imposition of the RNC requirements is not based upon criminal conduct
at all [as it is] ‘based on a mental abnormality or personality disorder rather
{
than one’s criminal intent’*). No conviction is needed for its imposition, and
the motorist need not be aware of a possible DUI violation before. being asked
to provide a blood sample.!? !
The fourth factor is whether the fee promotes retribution or deterrence.
Retribution has been defined as “[sJomething justly deserved; repayment;
reward,” and detetrenas as “the prevention of criminal behavior by fear of
punishment.” Black’s Law Dictionary 1511, 544 (10th ed. 2014), The
enhanced fee does not involve a repayment. or reward, and it deters |the
statutorily-given right of refusing a blood draw, rather than a criminal acti It
only indirectly promotes the implied consent law’‘s goal of deterring DUI, See
Pirctifield, 136 S.Ct. at 2166. The prospect of paying an “up to” $2,000] fee
sometime in the future is also surely much less a ‘deterrent for refusing
4
consent than being automatically disqualified from driving for a year or longer.
This factor should thus be afforded little, if any, weight. Cf Butfer, 2020] WL
1466299 *14 (“the RNC requirements do not promote deterrence [from
committing: additional Sexual crimes)”.
13 The Court acknowledges that the arrestee must be aware of the option of refusal. | see
Commonwealth y. Myers, 640 Pa. 653, 686, 164 A.3d 1162, 1182 (2017) (unconssious
arrestee had no “opportunity to make a ‘knowing.and conscious choice’ regarding whether to
undergo -chemical testing or to.exercise his right of refusal.”). Scienter, however, refers to a
knowledge of guilt or culpable mental state, not mere consciousness, and does not encompass
a knowing exercise of statutory rights. See 41 Am. Jur. 2d Indictrnents and Informations §
118 (2020),
8
CR.73 — 2020 -
The fifth factor - whether the behavior to which the fee applies is pee
already a crime ~ is answered in the negative, because Cernick is not charged
with violating Section 1547. See 75 Pa.C.S. § 1547(b}(2) (permitting refusal);
Factor, 199 A.3d at 501 (While DUI is a crime, refusing a request for consent
to submit to chemical testing is not....”). . |
For the sixth factor, there can be assigned, as an alternative nb
punitive purpose to which the enhanced fee may rationally be connected, the
government's interest In protecting the public from impaired drivers (as well
as in receiving compensation for its added administrative and regulatory
burdens). “Reason dictates” that a higher fee should be collected for having
avoided the obligation of consenting to chemical testing, which was ‘designed
to protect public safety. See Butler, 2020 WL 1466299 *15 (RNC requirements
are rationally connected to “the heightened public safety concerns applicable
to SVPs"),
The seventh and final factor is whether the enhanced fee aapears
excessive in relation to the non-punitive purposes of protecting the public. |\We
note Initially that while the standard restoration fee fs seventy dollars, a higher
fee ($88) is also charged for suspensions for unpaid parking violations or tolls,
or lack of proof of required financial responsibility. 75 Pa.C.S. § 1966. / An
Increased fee linked to refusal is not, therefore, inappropriate,
Vehicle Code fines are excessive If they are “irrational or unreasonable.”
Commonwealth v, Smith, 409 Pa, 521, 526, 187 A.2d 267, 270 (1963) (tying
9
CR 73 =2020 :
!
the charge for overweight vehicle to the amount of excess weight was “quite
sensible”). The higher fee accompanying repeat refusal~based suspensions
rationally mirrors their extended length, and doubling the fee after a first and
then a second suspension quite sensibly discourages unsafe driving. See 75
Pa.c.s. § 1547(b)(1)} (increasing’ the suepension period from twelve months
to elghteen months for previous refusals). A fee of five hundred to two
thousand dollars Is certainly substantial, but is not confiscatory. C/ mates
199 A.3d at 501 (“Compared to the General Assembly's non-punitive purpose
in protecting Pennsylvanians from the dangers of drunk driving, it can hatdly
be Said that temporally limited license suspensions represent excessive
penalties.”); Sondergaard v. Deptt of Transp.; Bureau of Driver Licensing, 65
A.3d 994, 997 (Pa. Cmwith. 2013) (agreeing with appellee [without engaging
ina Mendoza-Martinez analysis] that the lifetime revocation of a Suinelaa
driver’s license for two DUI convictions turned a remedial law Into a penal hs
because the license holder lost the.right to practice their chosen profession) ;
Commonwealth v. Heggenstaller, 699 A.2d 767, 769 (Pa. Super. 1997)
($6,550 fine for failing to pay 911 fee of $1.25/month for 23 months was
excessive considering the de minimus nature of the violation).
A base level of $500 and the fee’s slight DUI-deterrent effect are ae
the only considerations weighing even somewhat in favor of finding the fee to
be punitive. On balance, therefore, Section 1547(b.2) is not so punitive als to
negate its designation as a civil penalty. See ut/er, 2020 WL 1466299 at #11
1c
wee
CR 73-2020
(“only the ‘clearest proof may estabilsh. that a flaw 1s punitive in effect.”)
(quoting Muniz, 164 A.3d at 1208); Commanwea/th v. Wiliams, 574 Pa. 487,
906, 832 A.2d 962, 973 (Pa. 2003) (“we understand the ‘clearest proof’
Standard to indicate that the Mendoza-Martinez factors must weigh heavily in
favor of a finding of punitive purpose or effect in order to negate the Geriera
Assembly’s Intention that [Megan’s Law IT] be deemed civil and remedial.;’).
Because the restoration fee Is not a criminal penalty for refusal, there is
no merit to Cernick’s argument that his consent was based upon inaccurate
warnings.’* Accordingly, we enter the following:
ORDER |
AND NOW, April 23, 2020, the Defendant’s “Omnibus Pretrial _— is
DENIED.
BY THE COURT, t
—
z
onn F. Spataro, |P.J.
ce: D.A,
, |
J, Wesiey Rowden, Esq., P.D. |
, |
** Also flawed his assertion that “fin light of Sirehfefd, the Pennsylvania Superior Gourt
recognized the impropriety of punishing those who refuse blood tests mora severely than
those who consent,” arid are convicted. Mot. 11 14 {citing Giren, supra). Refusal suspensions
can be more onerous than conviction Suspensions. Compare 75 Pa.C.S. § 3804{(e) {as little
a$ No Suspension of operating privileges upon conviction [if no prior offense], or only six or
twelve months), wit/ éd¢, § 1547(b)(1) (automatic suspension for twelve or eighteen months),
11