Com. v. Greenfield, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JEREMY D. GREENFIELD
Appellee No. 230 MDA 2017
Appeal from the Order Entered January 9, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004192-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 07, 2017
The Commonwealth of Pennsylvania appeals from the trial court’s
order granting Defendant Jeremy D. Greenfield’s pretrial motion to suppress
the results of a warrantless blood test1 following the stop of his vehicle for
suspected Driving Under the Influence (DUI). After careful review, we
affirm.
While responding to a call for a theft-in-progress in a residential
development, police observed Greenfield’s vehicle driving at a high rate of
speed down the center of the road. Officer Rocco DeCamillo stopped
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1
In its notice of appeal, the Commonwealth certifies that the trial court’s
order granting Greenfield’s motion to suppress terminates or substantially
handicaps the prosecution of this case. See Pa.R.A.P. 311(d). Thus, the
appeal is properly before us. Commonwealth v. Ivy, 146 A.3d 241, 244
n.2 (Pa. Super. 2016).
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Greenfield’s vehicle and immediately noticed an odor of burnt marijuana
emanating from the vehicle. The officer suspected that Greenfield was
under the influence of the controlled substance as he exhibited bloodshot
and glassy eyes and was “droopy” in appearance. Greenfield refused to
answer Officer DeCamillo’s question regarding when he had last used
marijuana. The officer administered four field sobriety tests, all of which
Greenfield failed. Police uncovered marijuana and drug paraphernalia in the
center console of Greenfield’s car.
Greenfield was arrested and transported to St. Joseph’s Hospital for
blood testing. After reading Greenfield his O’Connell2 warnings from a DL-
26 form, Greenfield consented to a blood draw.3 The results indicated that
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2
The O'Connell warnings are contained on Pennsylvania’s DL-26 form,
which provides that if a person refuses to consent to a blood test, his or her
license could be suspended for at least one year and that, if convicted of
violating 75 Pa.C.S. § 3802(a), he or she will face more severe penalties
because of the refusal. See Commonwealth, Dep’t of Trans. v.
O’Connell, 555 A.2d 873 (Pa. 1989).
3
The affidavit of probable cause states, in pertinent, part:
At 0411 hrs., I transported GREENFIELD to the St. Joseph’s
Medical Center (SJMC) for chemical testing. We arrived at SJMC
at 0424 hrs. At 0400 hrs., I read the chemical test warnings to
GREENFIELD and he consented to a chemical test of blood. He
signed the DL-26 Chemical Test Warnings form and the SJMC
Lab Request form.
At 0443 hrs., four samples of blood were drawn from
GREENFIELD’s right arm.
Affidavit of Probable Cause, at 6/28/16 at 7.
(Footnote Continued Next Page)
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Greenfield had tetrahydrocannabinol, or THC, the active chemical compound
in marijuana, in his blood. On June 28, 2016, Greenfield was charged with
DUI-controlled substance (1st offense),4 possession with intent to use drug
paraphernalia,5 and possession of a small amount of marijuana for personal
use.6 On October 13, 2016, Greenfield filed a pretrial motion to suppress,
claiming that there was no probable cause for the vehicle stop and that the
blood draw was an illegal seizure under Birchfield v. North Dakota, 136
S.Ct. 2160 (2016).
After a hearing, the trial court issued findings of fact and conclusions
of law and granted Greenfield’s suppression motion on January 9, 2016. On
February 1, 2016, Commonwealth filed this timely appeal. On appeal, the
Commonwealth raises the following issues for our review:
(1) Did the trial court err in suppressing evidence of the
[Greenfield]’s blood test results pursuant to Birchfield v.
North Dakota, [] 136 S.Ct. 2160 [] (2016)[,] in a drug-
related DUI prosecution, where blood testing is the only
available method in Pennsylvania to determine whether a
suspect is driving under the influence of a controlled
substance, and thus the Pennsylvania Implied Consent
Statute is wholly enforceable?
(2) Did the trial court err in suppressing evidence of
[Greenfield]’s blood test results pursuant to Birchfield v.
_______________________
(Footnote Continued)
4
75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § (d)(1)(i).
5
35 P.S. § 780-113(a)(32).
6
35 P.S. § 780-113(a)(31).
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North Dakota, [] 136 S.Ct. 2160 [] (2016) in a drug-
related DUI prosecution, where the potential penalties
listed on the DL-26 form properly reflected the penalties
related to the drug-related DUI convictions, rendering the
consent to the blood draw voluntary?
On June 23, 2016, the United States Supreme Court decided
Birchfield, supra, in which it invalidated any criminal sanction assessed for
refusing to submit to a blood test in the absence of a warrant. The Court
determined that with regard to blood tests, the police must either seek a
warrant or show exigent circumstances. As a result, the Court held that
“motorists cannot be deemed to have consented to submit to a blood test on
pain of committing a criminal offense.” Id. at 2186. In the case where a
motorist is not prosecuted for refusing a test but rather has submitted to a
test where the police gave inaccurate information that the law required
submission, the Court remanded the case to the state court to “reevaluate
the motorist’s consent given the partial inaccuracy of the officer’s advisory.”
Id.
On appeal, the Commonwealth contends that suppression under
Birchfield was improper where blood testing is the only available method in
Pennsylvania to determine whether a suspect is driving under the influence
of a controlled substance.
In Commonwealth v. Ennels, 2017 PA Super 217 (filed July 11,
2017), our Court recently addressed the issue regarding Birchfield’s
applicability in drug-related, not alcohol-related, DUI prosecutions. In that
case, the Commonwealth similarly argued that because breath tests are only
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useful in determining the presence and amount of alcohol in a suspect’s
system, warrantless blood tests should be permissible in drug-related DUI
investigations. In rejecting that argument, our Court held that “[n]o matter
the substance suspected of affecting a particular DUI arrestee, Birchfield
requires that a blood test be authorized either by a warrant (or case-specific
exigency) or by individual consent not based on the pain of criminal
consequences.” Id. at *11.7 Thus, this issue was squarely addressed and
rejected in Ennels; therefore, the Commonwealth’s first claim on appeal
fails.
In its final issue, the Commonwealth asserts that because the DL-26
form properly reflected the penalties for drug-related DUI convictions,
Greenfield’s consent to blood testing was voluntary. Specifically, the
Commonwealth contends that implied consent remains a valid exception to
the warrant requirement.
In Ennels, our Court addressed this same issue, concluding that:
[E]ven if the DUI charges related to only controlled substances,
we would conclude that the trial court did not err in finding [the
defendant’s] consent was involuntary. The DL-26 form read to
and signed by [the defendant] informed him that he would face
enhanced penalties if he refused the blood test. . . . That those
happened to be the same penalties for DUI (controlled
substance) is irrelevant to the voluntary-consent analysis.
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7
In fact, the Supreme Court in Birchfield considered and rejected the
argument that warrantless blood tests should be permissible as searches
incident to arrest because they can detect substances other than alcohol.
136 S.Ct. at 2185.
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Although the form identified the applicable statutes, it did not
mention the penalties for DUI of a controlled substance, or that
the enhancements applied only to those convicted of DUI of
alcohol. Under the totality of the circumstances, a
reasonable person would believe that the enhanced
penalties applied if he refused the chemical test and later
was convicted, regardless of whether he was convicted of
an alcohol-related DUI or a drug-related DUI.
Id. at *16-*17 (emphasis added). Again, the Ennels court rejected the
exact argument advanced by the Commonwealth on appeal. Thus, it has no
merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2017
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