Commonwealth v. Krenzel

J-A07005-19
2019 PA Super 159COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LORI KLINER KRENZEL :
:
Appellant : No. 2049 EDA 2018
Appeal from the Judgment of Sentence Entered June 12, 2018
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000445-2017
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY OLSON, J.: FILED MAY 20, 2019
Appellant, Lori Kliner Krenzel, appeals from the judgment of sentence
entered on June 12, 2018, following her bench trial conviction for driving
under the influence of alcohol – highest rate (DUI) pursuant to 75 Pa.C.S.A.
§ 3802(c). On appeal, Appellant challenges the trial court’s denial of her
motion to suppress. For the reasons that follow, we are constrained to vacate
the judgment of sentence, reverse the order denying suppression, and remand
for a new trial.
The trial court summarized the facts and procedural history of this case
as follows:
On November 14, 2016, Appellant was pulled over by Officer Kyle
Maye and Officer [Robert] Gilbert as the result of her erratic
driving behavior that was called in by another motorist. Officer
Maye observed Appellant to have glassy and bloodshot eyes, her
speech was slow and soft, and her movements in the vehicle were
slow and sluggish. Officer Gilbert discovered two beer bottles in
the passenger side area of Appellant’s vehicle. Officer Maye
requested that Appellant exit the vehicle, at which time he
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* Former Justice specially assigned to the Superior Court.
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detected the odor of alcohol. He then conducted a series of field
sobriety tests, the results of which indicated that Appellant was
under the influence of alcohol and/or controlled substances.
Officer Maye asked if Appellant was willing to submit to a blood
test. Appellant consented. She was then placed under arrest and
transported to Chester County Hospital where her blood was
drawn within the appropriate two-hour limit.
During the stop, Officer Maye did not draw a weapon. Officer
Maye did not advise Appellant that she would face enhanced
penalties if she refused [a blood draw]. In her pre-trial motion to
suppress, Appellant argued that as the result of a previous arrest
for DUI in 2013, she understood that refusal of the blood draw
would subject her to adverse criminal penalties. Appellant’s basis
for consent was not communicated to Officer Maye; therefore,
Officer Maye had no knowledge that her consent was based upon
Appellant’s outdated understanding of Pennsylvania law. Officer
Maye neither provided Appellant with misleading or false
information in order to get Appellant to consent nor did he use
any threat of force or coercion.
Appellant filed a [m]otion to [s]uppress on May 1, 2017. Following
a hearing held on March 22, 2018, the [trial] court denied the
motion by [o]rder dated March 23, 2018. A bench trial was held
on April 4, 2018. A verdict was delivered on April 18, 2018, finding
[] Appellant guilty of [DUI] in violation of 75 Pa.C.S.A. § 3802(c).
Appellant’s sentencing was deferred for consideration of the
Intermediate Punishment Program (IPP). On June 12, 2018,
Appellant was sentenced to IPP which included 15 days of
incarceration, 75 days of electronic home confinement and
probation, community service[,] and a fine.
Trial Court Opinion, 8/3/2018, at 1-3 (record citations omitted). This timely
appeal resulted.1
On appeal, Appellant presents the following issue for our review:
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1 Appellant filed a notice of appeal on July 10, 2018. On July 17, 2018, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 3, 2018.
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1. Did not the [trial] court err in denying Appellant’s motion to
suppress, under the federal and state constitutions, the test
results of a warrantless blood draw where Appellant’s alleged
consent to the blood draw was not voluntary under the totality of
the circumstances?
Appellant’s Brief at 4.
In developing her claim, Appellant points out that her blood draw
constituted a police search, that police drew her blood without a warrant, and,
therefore, the blood draw was only valid if her consent were voluntary. Id.
at 9. Appellant maintains that her consent was not voluntary for several
reasons. First, Appellant posits that she had a previous arrest for DUI in 2013
and, at that time, refusal of a blood test subjected DUI offenders to more
severe criminal penalties. Id. at 11-12. Appellant argues that her consent
for the blood draw at issue here was based on her prior knowledge of
Pennsylvania law and that her “subjective [belief] regarding her ability to
refuse to consent to a search” should be considered as part of the totality of
the circumstances in evaluating the voluntariness of her consent. Id. at 12.
Next, Appellant contends that because she was in police custody at the time
of the requested blood draw, her consent was not voluntary. Id. at 14-16.
Finally, Appellant argues that her consent was involuntary, as the police never
advised her of her right to refuse the blood draw. Id. at 16-19.
We adhere to the following standards:
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
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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. 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 [trial court’s]
conclusions of law [] are subject to our plenary review.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (internal
citation omitted).
Initially, we set forth fundamental law with regard to warrantless blood
draws and consent as follows:
In Birchfield [v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160(2016)], the Supreme Court of the United States held that criminal
penalties imposed on individuals who refuse to submit to a
warrantless blood test violate the Fourth Amendment (as
incorporated into the Fourteenth Amendment). Within one week
of that decision, [the Pennsylvania Department of Transportation]
revised the [standard consent form used by police, known as the]
DL–26 form[,] to remove the warnings mandated by 75 Pa.C.S.A.
§ 3804 that theretofore informed individuals suspected of DUI that
they would face enhanced criminal penalties if they refused to
submit to a blood test in order to comply with Birchfield. [The]
revised form [is] known as Form DL–26B[.]
***
This Court subsequently held that [] enhanced criminal penalties
[imposed] for failure to consent to a blood draw constituted an
illegal sentence because of Birchfield. See Commonwealth v.
Giron, 155 A.3d 635, 639 (Pa. Super. 2017).
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On July 20, 2017, Governor Thomas W. Wolf signed into law Act
30 of 2017, which amended 75 Pa.C.S.A. § 3804 to comport with
Birchfield. Specifically, Act 30 provides for enhanced criminal
penalties for individuals who refuse to submit to blood tests only
when police have obtained a search warrant for the suspect's
blood. See 75 Pa.C.S.A. § 3804(c). Hence, from July 20, 2017
onwards the DL–26B form conforms to the revised statutory law.
Commonwealth v. Venable, 200 A.3d 490, 495 (Pa. Super. 2018) (original
brackets omitted).
With this backdrop in mind, we turn to Appellant’s claim that her consent
was involuntary, and thus, invalid. In examining whether consent is
voluntary, we note:
In determining the validity of a given consent, the Commonwealth
bears the burden of establishing that a consent is the product of
an essentially free and unconstrained choice—not the result of
duress or coercion, express or implied, or a will overborne—under
the totality of the circumstances. The standard for measuring the
scope of a person's consent is based on an objective evaluation of
what a reasonable person would have understood by the exchange
between the officer and the person who gave the consent. Such
evaluation includes an objective examination of the maturity,
sophistication and mental or emotional state of the defendant.
Gauging the scope of a defendant's consent is an inherent and
necessary part of the process of determining, on the totality of the
circumstances presented, whether the consent is objectively valid,
or instead the product of coercion, deceit, or misrepresentation.
While there is no hard and fast list of factors evincing
voluntariness, some considerations include: 1) the defendant's
custodial status; 2) the use of duress or coercive tactics by law
enforcement personnel; 3) the defendant's knowledge of his right
to refuse to consent; 4) the defendant's education and
intelligence; 5) the defendant's belief that no incriminating
evidence will be found; and 6) the extent and level of the
defendant's cooperation with the law enforcement personnel.
Id. at 497 (citations omitted).
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First, Appellant argues that the trial court erred by not considering her
previous knowledge of DUI law and her subjective belief regarding her ability
to refuse consent. This Court has squarely rejected claims arguing that
“awareness of pre-Birchfield enhanced criminal penalties for refusing a blood
draw render[s a] blood draw involuntary[,]” having opined as follows:
[I]t is not necessary that the police completely review changes in
the law, from the time of a motorist's previous arrest or
DUI-related schooling until the motorist's next traffic stop. [An
appellant’s] ignorance of the most recent Supreme Court
decisional law did not impose upon the police [] an affirmative
duty to provide her with an update on criminal procedure prior to
requesting a blood-draw. Neither our state nor the federal
constitution compels our police officers to serve as road-side law
professors.
Given the foregoing, [an appellant’s] personal failure to realize
that the Supreme Court's issuance of Birchfield struck down
§ 3804(c)'s enhanced criminal penalties is irrelevant. […Believing]
that our Commonwealth's enhanced penalties remained in full
force and effect [… was a m]isconception [] predicated upon a
fundamentally flawed view of our federalism.
Id. at 496-497 (Pa. Super. 2018), citing Commonwealth v. Johnson, 188
A.3d 486, 491 (Pa. Super. 2018) (finding that Johnson's ignorance of
constitutional law did not render her consent involuntary); Commonwealth
v. Miller, 186 A.3d 448, 452 (Pa. Super. 2018) (“Repeat DUI offenders, owing
to past legal transgressions, are not entitled to a benefit that would be
unavailable to first-time DUI offenders. ... The absurdity of [such an]
argument is self-evident.”). Here, Appellant’s subjective belief about the state
of the law regarding enhanced penalties was irrelevant. We reject Appellant’s
reliance on her subjective, erroneous misunderstanding of constitutional law,
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as that did not render her consent involuntary. See Venable, Johnson, and
Miller. As such, the first portion of Appellant’s argument fails.
Next, Appellant asserts that police conducted the blood draw while she
was in custody and they never informed her of the right to refuse consent
under 75 Pa.C.S.A. § 1547(b)(2). Id. at 14-18. We consider custodial status,
but it is not dispositive.
Finally, we consider Appellant’s last contention, wherein she asserts that
a police officer’s failure to inform her of the right of refusal precluded a finding
of voluntariness. Section 1547 is relevant to our disposition of this claim and
provides, in pertinent part:
a) General rule.--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 in
violation of section […] 3802 (relating to driving under
influence of alcohol or controlled substance)[.]
b) Civil penalties for refusal.—
(1) If 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 but upon notice by the police officer, the
department shall suspend the operating privilege of
the person[.]
* * *
(2) It shall be the duty of the police officer to inform
the person that:
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(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; and
(ii) if the person refuses to submit to chemical breath
testing, upon conviction or plea for violating
section 3802(a)(1), the person will be subject to
the penalties provided in section 3804(c) (relating
to penalties).
75 Pa.C.S.A. § 1547 (emphasis added).
Our Supreme Court examined Section 1547 in Commonwealth v.
Myers, 164 A.3d 1162 (Pa. 2017), a case wherein the defendant who was
arrested on suspected DUI charges was unconscious in the hospital when a
police officer read him consent forms and then directed hospital personnel to
conduct a blood draw. The Myers Court determined:
[O]nce a police officer establishes reasonable grounds to suspect
that a motorist has committed a DUI offense, that motorist “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.” 75
Pa.C.S.A. § 1547(a). Notwithstanding this provision, Subsection
1547(b)(1) confers upon all individuals under arrest for DUI an
explicit statutory right to refuse chemical testing, the invocation
of which triggers specified consequences. See 75 Pa.C.S.A.
§ 1547(b)(1) (“If any person placed under arrest for DUI is
requested to submit to chemical testing and refuses to do so, the
testing shall not be conducted[.]”).
Under this statutory scheme, a motorist placed under arrest for
DUI has a critical decision to make. The arrestee may submit to a
chemical test and provide the police with evidence that may be
used in a subsequent criminal prosecution, or the arrestee may
invoke the statutory right to refuse testing, which: (i) results in a
mandatory driver's license suspension under 75 Pa.C.S.A.
§ 1547(b)(1); (ii) renders the fact of refusal admissible as
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evidence in a subsequent DUI prosecution pursuant to 75
Pa.C.S.A. § 1547(e); and (iii) authorizes heightened criminal
penalties under 75 Pa.C.S.A. § 3804(c) if the arrestee later is
convicted of DUI. In very certain terms, [the Supreme] Court
has held that, in requesting a chemical test, the police
officer must inform the arrestee of the consequences of
refusal and notify the arrestee that there is no right to
consult with an attorney before making a decision. See
[Com., Dept. of Transp., Bureau of Traffic Safety v.]
O'Connell, 555 A.2d [873,] 877–878 (Pa. 1989). “An arrestee
is entitled to this information so that his choice to take a
chemical test can be knowing and conscious.” Id. at 878.
The choice belongs to the arrestee, not the police officer.
Myers, 164 A.3d at 1170–1171 (some case citations, original brackets, and
footnote omitted) (emphasis added). The Myers Court further noted that 75
Pa.C.S.A. § 1547 expressly “states that, ‘[i]t shall be the duty of the police
officer’ to inform the arrestee of the consequences of refusal.” Id. at 1175
n.12, citing 75 Pa.C.S.A. § 1547(b)(2). Our Supreme Court held that “[t]his
unambiguous statutory command leaves no doubt regarding the obligations
of the police officer requesting the arrestee’s submission to a chemical test.”
Id. (citation omitted).
Here, the trial court determined:
In the case at bar, argument at the suppression hearing
established that Officer May never warned that Appellant would
be subjected to criminal penalties upon her refusal to submit to a
blood draw. Appellant was not coerced by the drawing of weapons
or threats made against her by Officer Maye. There is no dispute
as to these facts. Officer Maye did not read any part of the
DL-26 implied consent form to Appellant. He simply asked
her for consent and she freely gave it. Argument at the
hearing, however, established that Appellant was informed during
a prior DUI arrest (prior to the Supreme Court’s decision in
Birchfield) that her refusal would result in adverse criminal
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penalties. Appellant did not communicate her belief to Officer
Maye, who could have corrected this erroneous understanding.
Based upon the totality of the circumstances of the interaction
between Officer Maye and Appellant on the night in question, the
[trial] court determined that Appellant’s consent was voluntary,
knowing and intelligent. […The trial court’s] standard for
measuring the scope of a person’s consent is based on an
objective evaluation of what a reasonable person would have
understood by the exchange between the officer and the person
who gave the consent. Objectivity is key and the court must use
a ‘reasonable person’ standard. It is a slippery slope when the
court and law enforcement are required to consider the subjective
views of each individual defendant, i.e., the thoughts inside their
head, to determine whether consent is voluntary. Such a
proposition requires getting into the mind of the defendant, at the
time of the arrest and when the individual is impaired, to
subjectively assess her knowledge and understanding of the law.
This approach would inevitably give rise to a host of other
problems.
Since Appellant was not advised of any adverse criminal
consequences or increased penalties for failing to submit to a
blood test, Birchfield does not apply. Appellant never
communicated that her consent was based upon her belief that
criminal penalties could be imposed for her refusal; as a result,
Officer Maye could not have known. Unless she was given
misleading or false information by the arresting officer (which she
was not) or subject to some sort of coercion, Appellant’s consent
is deemed to be knowing and voluntary. As a result, the trial court
denied the motion to suppress. This was neither an error of law
nor an abuse of discretion.
Trial Court Opinion, 8/3/2018, at 5-6 (some emphasis added; some emphasis
in original; record and legal citations omitted).
Although the trial court correctly rejected Appellant’s subjective
understanding of Pennsylvania law as grounds for invalidating her consent,
we conclude that, in view of Section 1547 and Myers, the trial court erred as
a matter of law in finding Appellant’s consent to a blood draw was voluntary.
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In determining whether Appellant’s consent was voluntary, the trial court
considered the various factors as set forth above and concluded that while
Appellant was in custody and not specifically informed of her rights regarding
consent, police did not coerce her and she fully cooperated with police,
answering all questions and complying with field sobriety tests. However,
there is no dispute that the police asked Appellant to go to the hospital for a
chemical blood test and she complied without receiving a recitation of her
rights under DL-26B or Section 1547 or confirming her consent by signature.
See N.T. 3/20/2018, at 7. Because Officer Maye was statutorily obligated to
inform Appellant of her right to refuse chemical testing and the consequences
arising therefrom and failed to effectuate those precautions, Appellant did not
make a knowing and conscious choice of whether to submit to the blood draw.
The choice belonged to Appellant, not Officer Maye. See Myers. Thus, while
the trial court is correct that the officers did not mislead Appellant, the record
is equally clear that they did not convey the information necessary for her to
make an informed decision.2 As such, we find that the trial court erred as a
matter of law in denying suppression.
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2 To be clear, in this case, no information regarding the consequences of
refusal was conveyed to the suspect. In such circumstances, the rule in Myers
of mandatory warnings should be followed. This is in contrast to a situation
in which given warnings differ from those conveyed during prior DUI
encounters. In those cases, given warnings generally prevail and reliance on
previous police interactions does not weigh against voluntariness. See
Venable, Johnson, and Miller.
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Judgment of sentence vacated. Order denying suppression reversed.
Case remanded for a new trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/19
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