Commonwealth v. Bell

J-A11037-17
2017 PA Super 236COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THOMAS S. BELL : No. 1490 MDA 2016
Appeal from the Order Entered August 22, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001098-2015
BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JULY 19, 2017
The Commonwealth appeals from the order entered by the Court of
Common Pleas of Lycoming County awarding Appellee Thomas S. Bell a new
trial. The Commonwealth claims the trial court erred in finding that the
prosecution’s admission of evidence of Appellee’s refusal to submit to a
blood test at his trial on driving under the influence (DUI) charges violated
his Fourth Amendment right to be free from unreasonable searches.
As we conclude that it is constitutionally permissible to deem
motorists to have consented to the specific provision of Pennsylvania’s
Implied Consent Law that sets forth evidentiary consequences for the refusal
of chemical testing upon a lawful arrest for DUI, we reverse and remand for
sentencing.
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*
Former Justice specially assigned to the Superior Court.
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On May 16, 2015, officers initiated a traffic stop of Appellee’s vehicle
after observing that Appellee did not have his taillights properly illuminated.
After approaching the vehicle, officers noticed Appellee’s breath smelled of
alcohol and his eyes were glossy and bloodshot. Appellee admitted to
recently consuming four beers, was unsteady on his feet, and failed to
perform field sobriety testing satisfactorily. Appellee’s breath test revealed
his blood alcohol concentration (BAC) was .127%. Officers placed Appellee
under arrest for DUI and transported him to the Williamsport Hospital for
blood testing. After Appellee was read the DL-26 Chemical Testing
Warnings, he refused to submit to a blood sample.
On May 18, 2015, Appellee was charged with DUI ─ general
impairment (75 Pa.C.S.A. § 3802(a)(1)) and a summary charge for required
lighting (75 Pa.C.S.A. § 4302(a)(1)). On March 8, 2016, Appellee filed a
pre-trial motion to dismiss the DUI charge, specifically arguing that he had a
constitutional right to refuse to submit to a warrantless blood test. Thus,
Appellee claimed that his refusal to submit to a blood test should have been
suppressed. On April 28, 2016, the trial court denied Appellee’s motion.
On the same day, Appellee proceeded to a bench trial in which the
Commonwealth was permitted to introduce testimony from the arresting
officer detailing how Appellee had refused a blood test. The officer explained
that Appellee had asserted that he not want a needle in his arm because he
claimed that he had contracted hepatitis from a hospital needle on a prior
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occasion. At the conclusion of the trial, Appellee was convicted of the DUI
charge and the summary traffic violation.
On July 1, 2016, Appellee filed a motion for reconsideration of the trial
court’s denial of his motion to dismiss, arguing that evidence of his refusal to
submit to a blood test should have been deemed inadmissible at trial.
Specifically, Appellee cited to the recent decision in Birchfield v. North
Dakota, ___U.S.___, 136 S.Ct. 2160, 2186, 195 L.Ed.2d 560 (2016), in
which the Supreme Court found that implied consent laws cannot deem
motorists to have given consent to criminal penalties upon their refusal to
submit to chemical testing. On August 19, 2016, the trial court entered an
order granting Appellee a new trial at which the prosecution would not be
allowed to introduce evidence of Appellee’s refusal. The Commonwealth filed
this timely appeal.
We review a trial court’s decision to grant or deny a motion for a new
trial under an abuse of discretion standard.1 Czimmer v. Janssen Pharm.,
Inc., 122 A.3d 1043, 1051 (Pa.Super. 2015). Moreover,
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1
We note that the trial court entered this order granting a new trial before
entering a judgment of sentence. However, “[i]nterlocutory appeals as of
right are permitted from orders in criminal proceedings awarding a new trial
where the Commonwealth claims that the lower court committed an error of
law.” Commonwealth v. MacDougall, 841 A.2d 535, 536–37 (Pa.Super.
2003) (citing Pa.R.A.P. 311). As this is the procedural posture before us, we
may proceed to review the trial court’s actions.
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[w]e must review the court's alleged mistake and determine
whether the court erred and, if so, whether the error resulted in
prejudice necessitating a new trial. If the alleged mistake
concerned an error of law, we will scrutinize for legal error. Once
we determine whether an error occurred, we must then
determine whether the trial court abused its discretion in ruling
on the request for a new trial.
Id. (quoting ACE Am. Ins. Co. v. Underwriters at Lloyds and Cos., 939
A.2d 935, 939 (Pa.Super. 2007)).
The Commonwealth argues that Appellee is not entitled to a new trial
as it was constitutionally permissible for the prosecution to introduce
evidence of Appellee’s refusal to consent to a warrantless blood test at his
trial on DUI charges to show consciousness of guilt. Appellee asserts that he
had a constitutional right to refuse the warrantless blood test pursuant to
Birchfield; thus, Appellee argues the admission of the refusal evidence
penalized him for exercising a constitutional right.
Before reaching the parties’ specific arguments, we begin by
discussing the statutory scheme and related decisional law governing
chemical testing of individuals suspected of DUI and related traffic offenses.
Our courts have established that driving is a privilege, not a fundamental
right. Commonwealth, Dep't of Transp., Bureau of Driver Licensing v.
Scott, 546 Pa. 241, 250, 684 A.2d 539, 544 (1996); Commonwealth v.
Jenner, 681 A.2d 1266, 1273 (Pa.Super. 1996). To hold this privilege,
drivers must meet necessary qualifications and comply with the terms of the
Implied Consent Law (75 Pa.C.S.A. § 1547), which requires motorists to
submit to chemical sobriety tests when requested to do so by an authorized
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law enforcement officer under the specific circumstances outlined in the
statute. As a general rule, Section 1547 provides in pertinent part:
Any person who drives, operates or is in actual physical control
of the movement of a vehicle in this Commonwealth shall be
deemed to have given consent to one or more chemical tests of
breath or blood for the purpose of determining the alcoholic
content of blood or the presence of a controlled substance if a
police officer has reasonable grounds to believe the person to
have been driving, operating or in actual physical control of the
movement of a vehicle:
(1) in violation of section … 3802 (relating to driving under
influence of alcohol or controlled substance) …
75 Pa.C.S.A. § 1547(a)(1).
The Implied Consent Law sets forth penalties to be imposed upon a
person who is arrested for DUI and refuses to submit to chemical testing.
First, Section 1547(b) requires the Pennsylvania Department of
Transportation to suspend the driver’s license for at least one year. 75
Pa.C.S.A. § 1547(b). Second, Section 1547(e) allows for evidence of the
motorist’s refusal to submit to chemical testing to be admitted at his or her
criminal trial on DUI charges:
(e) Refusal admissible in evidence.--In any summary
proceeding or criminal proceeding in which the defendant is
charged with a violation of section 3802 or any other violation of
this title arising out of the same action, the fact that the
defendant refused to submit to chemical testing as required by
subsection (a) may be introduced in evidence along with other
testimony concerning the circumstances of the refusal. No
presumptions shall arise from this evidence but it may be
considered along with other factors concerning the charge.
75 Pa.C.S.A. § 1547(e).
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In addition to license suspension and evidentiary consequences in DUI
prosecution for refusal of chemical testing, the Legislature also set forth
criminal penalties for individuals who are convicted of DUI charges in a
separate section of the Vehicle Code; Section 3804(c) provides that a
motorist who is convicted of DUI under Section 3802 and refused to submit
to testing shall be sentenced to enhanced penalties as delineated in that
provision. 75 Pa.C.S.A. § 3804(c).
In post-trial motion, Appellee limited his argument to challenge the
application of Section 1547(e) in this case as the prosecution was allowed to
admit evidence of his refusal at his trial on DUI charges. As the trial court
granted Appellee’s post-trial motion and awarded him a new trial before
Appellee was sentenced, Appellee was not subjected to the criminal penalties
set forth in Section 3804(c).2 The trial court granted Appellee’s post-trial
motion as it found that the admission of evidence of Appellee’s refusal to
submit to a warrantless blood test penalized Appellee for refusing to waive
his Fourth Amendment right to be free from warrantless searches.
The Fourth Amendment of the United States Constitution provides that
the “right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated.”
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2
In its appellate brief, the Commonwealth states that pursuant to
Birchfield, Appellee’s sentence could not be enhanced as a result of his
refusal of chemical testing.
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U.S. Const. amend. IV. Blood tests and breath tests constitute searches
under the Fourth Amendment as they implicate privacy concerns.
Birchfield, 136 S.Ct. at 2173. See also Commonwealth v. Ellis, 223,
608 A.2d 1090, 1091 (Pa.Super. 1992) (providing that “the administration of
a blood test is a search within the meaning of the Fourth Amendment if it is
performed by an agent of the government”).
As a general rule, the Fourth Amendment requires that, in order to
conduct a search of an individual or his or her property, law enforcement
must obtain a warrant, supported by probable cause and issued by a neutral
magistrate. Commonwealth v. Arter, ___Pa.___, 151 A.3d 149, 153
(2016). Although a warrantless search is per se unreasonable, this rule is
subject to several established exceptions, which includes the consent
exception. Commonwealth v. Evans, 153 A.3d 323, 327–28 (Pa.Super.
2016). While trial court recognized Appellee was not subjected to a
governmental search as he refused to submit to blood testing, the trial court
asserted that Appellee’s “exercise of his Fourth Amendment right to be free
from warrantless searches cannot be used as evidence of consciousness of
guilt.” Trial Court Opinion, 8/22/16, at 3.
Though not expressly stated, the trial court’s rationale for granting
Appellee a new trial derives from principles set forth in Griffin v. California,
380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), in which the Supreme
Court of the United States held that the commentary made by the trial court
and prosecutor suggesting to the jury that the defendant’s failure to testify
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at trial could be considered evidence of guilt impermissibly burdened the
defendant’s privilege against self-incrimination. The Court rejected this
commentary as “a penalty imposed by courts for exercising a constitutional
privilege.” Id. at 614, 85 S.Ct. at 1229.
Nevertheless, the Supreme Court declined to extend the penalty
analysis set forth in Griffin to a case involving a defendant’s refusal to
submit to warrantless blood testing. In South Dakota v. Neville, 459 U.S.
553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Supreme Court concluded
that the admission of evidence of a defendant’s refusal of a warrantless
blood test did not violate Appellee’s Fifth Amendment right against self-
incrimination or his Fourteenth Amendment right to due process. The Court
acknowledged its previous decision in Schmerber v. California, 384 U.S.
757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), in which it had concluded that
the prosecution’s admission of the results of a compelled blood test in the
defendant’s trial on DUI charges did not violate the defendant’s Fifth
Amendment right against self-incrimination as blood evidence was not
testimonial, but merely physical.
In reaching its ultimate conclusion that Appellee’s right against self-
incrimination and right to due process had not been violated, the Neville
Court observed that the specific rule set forth in Griffin forbidding
commentary on a defendant’s refusal to testify at trial was inapplicable as “a
person suspected of drunk driving has no constitutional right to refuse to
take a blood-alcohol test.” Id. at 560 n.10, 103 S.Ct. 916. The Court
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explained that the right to refuse a blood or breath test is not one of
“constitutional dimension” but rather is “simply a matter of grace bestowed
by the [state] legislature.” Id. at 565, 103 S.Ct. 916.
Consistent with this federal precedent, this Court has also emphasized
that an individual suspected of drunk driving does not have a constitutional
right to refuse chemical testing. In Commonwealth v. Graham, 703 A.2d
510 (Pa.Super. 1997), the appellant argued that trial counsel was ineffective
in failing to move to suppress the results of his warrantless blood test as the
appellant claimed his consent had been coerced in violation of the Fifth
Amendment when he was informed that his refusal would be used as
evidence of guilt in a trial on DUI charges. Thus, the appellant claimed that
Section 1547(e), which sets forth the evidentiary consequences imposed on
a motorist who refuses to submit to chemical testing upon a lawful arrest for
DUI, was an unconstitutional penalty to the exercise of an individual’s right
to refuse the test.
However, the Graham Court concluded that the evidentiary
consequences for the refusal of a blood test set forth in Section 1547(e) did
not violate the appellant’s constitutional rights, as the appellant’s “right to
refuse the blood test is derived only from Section 1547 itself and not from
the Constitution.” Id. at 512. This Court emphasized that there is:
no constitutional right to refuse chemical testing.... [D]riving in
Pennsylvania is a civil privilege conferred on individuals who
meet the necessary qualifications set forth in the Vehicle Code....
Under the terms of the Implied Consent Law, one of the
necessary qualifications to continuing to hold that privilege is
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that a motorist must submit to chemical sobriety testing, when
requested to do so by an authorized law enforcement officer in
accordance with the prerequisites of the Implied Consent Law.
The obligation to submit to testing is related specifically to the
motorist's continued enjoyment of the privilege of maintaining
his operator's license.
Commonwealth v. Graham, 703 A.2d 510, 512 (Pa.Super. 1997) (quoting
Commonwealth v. Stair, 548 Pa. 596, 699 A.2d 1250 (1997) (equally
divided Court)). See also Scott, 546 Pa. at 250, 684 A.2d at 544 (same).
Based on the reasoning set forth in Neville and Graham, we find
Appellee had no constitutional right to refuse a blood test upon his lawful
arrest for DUI and thus, it was constitutionally permissible for the
prosecution to introduce evidence of this refusal at his trial on DUI charges.
The trial court’s reliance on Birchfield is misplaced; this decision does
not support the trial court’s assertion that Appellee had a constitutional right
to refuse chemical testing. In Birchfield, the Supreme Court of the United
States reviewed the constitutionality of implied consent laws that criminalize
a driver’s refusal to undergo warrantless chemical testing upon a lawful
arrest for drunk driving. In the course of doing so, the High Court assessed
whether the search-incident-to-arrest exception to the Fourth Amendment
could justify warrantless chemical testing. After analyzing the impact of
blood and breath tests on individual privacy interests as well as the need for
BAC tests in criminal prosecution, the Court concluded that law enforcement
may require a motorist to submit to warrantless breath testing as a search
incident to an arrest for drunk driving; however, this exception does not
justify warrantless blood testing, which is a more intrusive process.
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Nevertheless, while the High Court rejected the application of the
search-incident-to-arrest exception to compel a motorist to submit to a
blood test, it expressed approval of implied consent laws that deem a
motorist to have consented to be subject to certain penalties if they refuse
to submit to a warrantless blood test upon his or her arrest for DUI.
Acknowledging the consent exception to the warrant requirement, the Court
provided as follows:
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). See
also Missouri v. McNeely, ___U.S.___, 133 S.Ct. 1552, 1556, 185 L.Ed.2d
696 (2013) (plurality) (acknowledging with approval that implied consent
laws are employed as a tool to secure BAC evidence as “most States allow
the motorist’s refusal to take a BAC test to be used as evidence against him
in a subsequent criminal prosecution”).
While expressing approval of the imposition of civil penalties and
evidentiary consequences on motorists who refuse to comply with chemical
testing upon their arrest, the Birchfield Court concluded that it was
unreasonable for implied consent laws to impose criminal penalties to punish
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a motorist for refusing consent. The Supreme Court’s decision in Birchfield
did not provide that the an individual has a constitutional right to refuse a
warrantless blood test, but stressed that “there must be a limit to the
consequences to which motorists may be deemed to have consented by
virtue of a decision to drive on public roads.” Birchfield, 136 S.Ct. at 2185
(emphasis added).
Based on the Supreme Court’s language approving civil penalties set
forth in implied consent laws, we conclude that it is reasonable to deem
motorists to have consented to civil penalties such as license suspension and
evidentiary consequences if they choose to refuse to submit to chemical
testing upon a lawful arrest for DUI.
For the foregoing reasons, we conclude that Appellee was not entitled
to a new trial based on the admission of evidence of his refusal to submit to
a warrantless blood test. Accordingly, we reverse the trial court’s order and
remand for sentencing.
Order reversed. Remand for sentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
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