M.S. Hudy v. PennDOT, Bureau of Driver Licensing ( 2018 )


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  •              IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Michael Scott Hudy,                               :
    Appellant           :
    :
    v.                         :   No. 784 C.D. 2017
    :   Submitted: February 2, 2018
    Commonwealth of Pennsylvania,                     :
    Department of Transportation,                     :
    Bureau of Driver Licensing                        :
    BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE JAMES GARDNER COLINS, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE COHN JUBELIRER                                  FILED: March 27, 2018
    Michael Scott Hudy (Licensee) appeals from the May 24, 2017 Order of the
    Court of Common Pleas of Erie County (common pleas) denying his appeal from a
    one-year suspension of his operating privilege imposed by the Commonwealth of
    Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT),
    under Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i),
    commonly referred to as the Implied Consent Law.1 On appeal, Licensee argues
    1
    Section 1547(b)(1)(i) reads, in pertinent part, as follows:
    (1) If any person placed under arrest for a violation of section 3802 [relating to
    driving under influence of alcohol or controlled substance] is requested to
    submit to chemical testing and refuses to do so, the testing shall not be
    that, because the Pennsylvania State Trooper (Trooper) who stopped Licensee did
    not warn him that he would be subject to enhanced criminal penalties if he refused
    a chemical test of his blood, as then ostensibly required by Section 1547(b)(2)(ii) of
    the Vehicle Code, 75 Pa. C.S. § 1547(b)(2)(ii), DOT should not have suspended his
    operating privilege.2        For the reasons set forth in Garlick v. Department of
    Transportation, Bureau of Driver Licensing, 
    176 A.3d 1030
    (Pa. Cmwlth. 2018) (en
    banc), we affirm.
    The following facts are not in dispute. DOT informed Licensee that his
    operating privilege was suspended for one year as a result of his failure to submit to
    a chemical test of his blood on November 29, 2016. Licensee appealed to common
    pleas pursuant to Section 1550(a) of the Vehicle Code, 75 Pa. C.S. § 1550(a), and a
    hearing was held.3
    At the hearing, testimony was presented that on November 29, 2016, Trooper
    responded to a single-car accident at the intersection of Forest Drive and Route 6N
    conducted but upon notice by the police officer, the department shall suspend
    the operating privilege of the person as follows:
    (i) Except as set forth in subparagraph (ii), for a period of 12 months.
    75 Pa. C.S. § 1547(b)(1)(i).
    2
    Former Section 1547(b)(2)(ii) provided as follows:
    It shall be the duty of the police officer to inform the person that: . . . (ii) if the
    person refuses to submit to chemical testing, upon conviction or plea for violating
    section 3802(a)(1) [of the Vehicle Code], the person will be subject to the penalties
    provided in section 3804(c) [of the Vehicle Code] (relating to penalties).
    Former 75 Pa. C.S. § 1547(b)(2)(ii).
    3
    Section 1550(a) provides that “[a]ny person . . . whose operating privilege has been . . .
    suspended . . . by the department shall have the right to appeal to the court vested with jurisdiction
    of such appeals . . . .” 75 Pa. C.S. § 1550(a).
    2
    in Edinboro. At the scene, Trooper determined that Licensee was the operator of the
    vehicle. Because Licensee was “acting in a strange manner,” Trooper requested
    Licensee submit to a field sobriety test. (Hr’g Tr. at 6-7, Reproduced Record (R.R.)
    at 17a-18a.) Licensee refused. Trooper asked if Licensee would submit to a blood
    test, but he again refused. Trooper placed Licensee under arrest on suspicion of
    driving under the influence of alcohol and had Licensee brought to the Edinboro
    University Police Department. There, Trooper read to Licensee DOT Form DL-
    26B, which advised Licensee 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, you will be suspended for up to 18 months.
    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.
    (R.R. at 29a.) It is undisputed that Trooper did not warn Licensee that if he refused
    a chemical test of his blood he would be subject to enhanced criminal penalties even
    though, at that time, the language of Section 1547(b)(2)(ii) ostensibly still required
    it. Licensee refused to submit to a chemical test of his blood.
    At the conclusion of the hearing, Licensee argued that DOT’s suspension of
    his operating privilege was invalid because Trooper did not advise Licensee that his
    refusal would subject him to enhanced criminal penalties in violation of Section
    3
    1547(b)(2)(ii). DOT responded that it amended its Form DL-26B at the request of
    the Pennsylvania District Attorneys Association and other county district attorneys
    following the decision of the United States Supreme Court in Birchfield v. North
    Dakota, __ U.S. __, 
    136 S. Ct. 2160
    (2016).
    Five months before Licensee was stopped, the United States Supreme Court
    held in Birchfield, the following: the search-incident-to-arrest exception to the
    warrant requirement does not justify a warrantless search of a motorist’s blood;
    implied consent under an implied consent law does not justify the warrantless search
    of a motorist’s blood; and a state may not impose criminal penalties on a motorist
    for refusing a blood test requested under an implied consent law. After Licensee’s
    arrest, the Superior Court held, based on Birchfield, that it is “partially inaccurate”
    to warn a licensee that he may be subject to enhanced criminal penalties if he refuses
    a blood test requested under the Implied Consent Law. Commonwealth v. Evans,
    
    153 A.3d 323
    , 331 (Pa. Super. 2016). Therefore, the results of such a blood test
    must be suppressed, and an enhanced sentence based on a licensee’s refusal to
    submit to such a blood test must be vacated. Commonwealth v. Giron, 
    155 A.3d 635
    , 640 (Pa. Super. 2017). In short, “in the absence of a warrant or exigent
    circumstances justifying a search, a defendant who refuses to provide a blood sample
    when requested by police is not subject to . . . enhanced [criminal] penalties.” 
    Id. In July
    2017, the General Assembly amended Sections 1547(b)(2)(ii) and 3804(c)
    of the Vehicle Code, 75 Pa. C.S. §§ 1547(b)(2)(ii), 3804(c), so as to eliminate
    enhanced criminal penalties for refusing to submit to a blood test and the warning
    associated therewith. Sections 3 and 4 of the Act of July 20, 2017, P.L. 333. See
    
    Garlick, 176 A.3d at 1032-33
    .
    4
    In the Order dated May 24, 2017, common pleas denied Licensee’s appeal and
    reinstated the suspension of his operating privilege. (Common Pleas Order, May 24,
    2017.)
    On appeal,4 Licensee does not contest whether there were reasonable grounds
    for his arrest, whether he was asked to submit to a chemical test, or whether he
    refused to do so. Rather, the sole issue Licensee presents is whether the omission
    from Form DL-26B that he would be subject to enhanced criminal penalties violated
    Section 1547(b)(2)(ii) such that DOT did not meet its burden of proof and, thus, his
    operating privilege should not have been suspended. Licensee asserts that DOT has
    no authority to rewrite Section 1547(b)(2)(ii), and that, until the General Assembly
    amended Section 1547(b)(2)(ii), DOT had to follow that provision even after the
    decision in Birchfield.
    The argument Licensee raises is the same as was raised in 
    Garlick, 176 A.3d at 1035
    . For the reasons set forth in Garlick, 
    id. at 1036,
    we conclude that DOT met
    its burden of proving that Licensee was specifically warned about the consequences
    of refusing a blood test, that is, the suspension of his license. See Martinovic v.
    Dep’t of Transp., Bureau of Driver Licensing, 
    881 A.2d 30
    , 34 (Pa. Cmwlth. 2005)
    (noting that in order for DOT to meet its prima facie burden establishing its
    entitlement to suspend a licensee’s operating privilege, DOT must show, inter alia,
    that the licensee was “specifically warned” about the consequences of refusing a
    chemical test). Post-Birchfield, enhanced criminal penalties for refusing a blood test
    requested under the Implied Consent Law are no longer constitutionally permissible
    4
    Our standard of review is limited to determining whether common pleas committed an
    error of law, whether common pleas abused its discretion, or whether the findings of fact 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).
    5
    and, thus, not a permissible consequence of such a refusal. Even though the General
    Assembly did not immediately amend Section 1547(b)(2)(ii) following Birchfield,
    the effect of Birchfield was to render the criminal penalties warned of in Section
    1547(b)(2)(ii) as applied to blood testing unenforceable and to effectively sever that
    section from the rest of the Vehicle Code. See Section 1925 of the Statutory
    Construction Act of 1972, 1 Pa. C.S. § 1925 (“The provisions of every statute shall
    be severable” with certain exceptions not applicable here). Therefore, common
    pleas properly denied Licensee’s appeal.
    Accordingly, the May 24, 2017 Order of common pleas is affirmed.
    _____________________________________
    RENÉE COHN JUBELIRER, Judge
    6
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Michael Scott Hudy,                  :
    Appellant      :
    :
    v.                  :   No. 784 C.D. 2017
    :
    Commonwealth of Pennsylvania,        :
    Department of Transportation,        :
    Bureau of Driver Licensing           :
    ORDER
    NOW, March 27, 2018, the Order of the Court of Common Pleas of Erie
    County, dated May 24, 2017, is AFFIRMED.
    _____________________________________
    RENÉE COHN JUBELIRER, Judge
    

Document Info

Docket Number: 784 C.D. 2017

Judges: Cohn Jubelirer, J.

Filed Date: 3/27/2018

Precedential Status: Precedential

Modified Date: 3/27/2018