Com. v. Robertson, L. , 186 A.3d 440 ( 2018 )

J-A07006-18
2018 Pa. Super. 110
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LISA GAY ROBERTSON :
:
Appellant : No. 1493 MDA 2017
Appeal from the Order Entered August 31, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005091-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LISA GAY ROBERTSON : No. 1494 MDA 2017
Appeal from the Order Entered August 31, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005092-2016
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
OPINION BY OLSON, J.: FILED MAY 03, 2018
The Commonwealth of Pennsylvania appeals from the August 31, 2017
orders granting Lisa Gay Robertson’s (“Appellee’s”) motions to suppress blood
alcohol concentration (“BAC”) blood test results obtained during the course of
two driving under the influence (“DUI”) investigations. The trial court found
Appellee’s consent to the blood draws was involuntary because of the
warnings contained on Form DL-26B that were read to her by the police
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07006-18
officers both times that she was asked to consent to a blood test. These cases
require us to consider the DL-26B form adopted by the Pennsylvania
Department of Transportation (“PennDOT”) after the Supreme Court of the
United States’ decision in Birchfield v. North Dakota, 136 S. Ct. 2160
(2016).1 We join the Commonwealth Court and hold that PennDOT
permissibly revised the original DL-26 form to comply with Birchfield. In
light of this conclusion, and after considering the totality of the circumstances
surrounding Appellee’s consents to the blood tests, we conclude that
Appellee’s consent was voluntary in both cases. Accordingly, we reverse the
trial court’s suppression orders and remand for further proceedings consistent
with this opinion.
The factual background of these two cases is as follows. On September
29, 2016, police responded to a motel parking lot for a report of an impaired
driver. When they arrived, Appellee was unable to complete field sobriety
____________________________________________
1 Beginning on February 1, 2004, section 1547(b)(2)(ii) of the Motor Vehicle
Code required a police officer to warn an individual arrested for suspected DUI
that the individual’s refusal to submit to a blood test would subject that
individual to enhanced criminal penalties. 75 Pa.C.S.A. § 1547(b)(2)(ii) (West
2016). “Officers followed that requirement by reading from [PennDOT’s] Form
DL-26, a portion of which tracked that statutory language.” Garlick v.
Commonwealth, Dep't of Transp., Bureau of Driver Licensing, 176 A.3d
1030, 1032 (Pa. Cmwlth. 2018) (en banc). On June 23, 2016, the United
States Supreme Court issued the Birchfield decision. One week later,
PennDOT, at the request of the Pennsylvania District Attorneys Association
and a number of county district attorneys, amended Form DL-26 to remove
any reference to enhanced criminal penalties for the refusal to submit to a
blood test. The new form is known as Form DL-26B. Id.
-2-
J-A07006-18
tests. Police arrested her for suspicion of DUI. Appellee was transported to
the hospital where a police officer read her the DL-26B form. That form
notified Appellee that she could face civil penalties for failing to consent to a
blood draw. The form did not inform Appellee that she would be subjected to
enhanced criminal penalties if she refused a blood test.2 Appellee consented
to the blood draw, which showed she had a BAC of .386.
____________________________________________
2 Specifically, the DL-26B form that was read to and signed by Appellee
provided in relevant part as follows:
It is my duty as a police officer to inform you of the following:
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
privileges 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 to 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.
N.T., 8/15/17, Commonwealth’s Exhibit 1 (case number CP-06-CR-0005091-
2016).
-3-
J-A07006-18
On October 26, 2016, Appellee was involved in an automobile accident
in a motel parking lot. When police arrived, Appellee was sitting on the ground
and was unable to stand. Police arrested her for suspicion of DUI. Appellee
was transported to the hospital where a police officer read her the DL-26B
form. That form notified Appellee that she could face civil penalties for failing
to consent to a blood draw. The form did not inform Appellee that she would
be subjected to enhanced criminal penalties if she refused a blood test.3
Appellee consented to the blood draw, which showed she had a BAC of .411.
The procedural history of these cases is as follows. On November 30,
2016, the Commonwealth charged Appellee via two criminal informations with
two counts of DUI – general impairment4 and two counts of DUI - highest
rate.5 On May 12, 2017, Appellee moved in both cases to suppress the blood
draw evidence. Thereafter, the trial court held a suppression hearing. On
August 31, 2017, the trial court issued findings of fact and conclusions of law
and granted Appellee’s suppression motions. The Commonwealth filed these
____________________________________________
3 The form read to and signed by Appellee at the time of the October 2016
arrest was identical to the form that she signed following her arrest on
September 29, 2016. N.T., 8/5/17, Commonwealth’s Exhibit 1 (case number
CP-06-CR-0005092-2016).
4 75 Pa.C.S.A. § 3802(a)(1).
5 75 Pa.C.S.A. § 3802(c).
-4-
J-A07006-18
interlocutory appeals as of right.6 See Pa.R.A.P. 311(d) (“In a criminal case,
under the circumstances provided by law, the Commonwealth may take an
appeal as of right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution.”).
The Commonwealth presents two issues for our review:
1. Did the trial court err in suppressing evidence pursuant to
Birchfield . . . where the DL-26B form was modified to remove
the objectionable language regarding the enhanced penalties
for a blood testing refusal, rendering the consent to the blood
draw[s] voluntary?
2. Did the trial court err in suppressing evidence pursuant to
Birchfield . . . where the totality of the circumstances indicates
that the consent to the blood draw[s] was voluntary?
Commonwealth’s Brief at 4.
Both of the Commonwealth’s issues challenge the trial court’s
suppression orders. We review a trial court’s order suppressing evidence for
an abuse of discretion and our scope of review consists of “only the evidence
from the defendant’s witnesses along with the Commonwealth’s evidence that
remains uncontroverted.” Commonwealth v. Maguire, 175 A.3d 288, 291
(Pa. Super. 2017) (citations omitted).
____________________________________________
6 The Commonwealth and trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
-5-
J-A07006-18
Preliminarily, we review the legal and administrative developments
regarding Pennsylvania’s DUI laws over the past two years. In Birchfield,
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).
Birchfield, 136 S. Ct. at 2185–2186. Within one week of that decision,
PennDOT revised 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. It was this revised form, known as Form DL-26B (which did not
include warnings regarding enhanced criminal penalties), that the police
officers read to Appellee.
Despite the creation of the DL-26B form in the wake of Birchfield,
numerous cases pending before trial and appellate courts involved defendants
who were given the warnings contained in the original DL-26 form that
erroneously informed them that they would face enhanced criminal penalties
if they refused to submit to a blood test. This Court ultimately held that the
Form DL-26 warnings read to defendants prior to PennDOT’s revision were
partially inaccurate. Commonwealth v. Evans, 153 A.3d 323, 331 (Pa.
Super. 2016) (“Since Birchfield held that a state may not ‘impose criminal
penalties on the refusal to submit to [a warrantless blood] test,’ the police
officer's advisory to [a]ppellant [that refusal to submit to the test could subject
-6-
J-A07006-18
appellant to more severe penalties set forth in 75 Pa.C.S.A. § 3804(c)] was
partially inaccurate.”). Thus, when evaluating whether a defendant’s consent
to a blood draw was voluntary or involuntary, trial courts are required to
consider whether the defendant was given inaccurate information regarding
the criminal consequences of refusing to submit to a blood test. Id., citing
Birchfield, 136 S.Ct. at 2186. This Court subsequently held that imposing
enhanced criminal penalties for failure to consent to a blood draw constituted
an illegal sentence because of Birchfield. Commonwealth v. Giron, 155
A.3d 635, 639 (Pa. Super. 2017).
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 statutory law. For
approximately the previous 13 months, including at the times of Appellee’s
arrests, the DL-26B form warnings were consistent with the law as interpreted
by the Supreme Court of the United States and this Court, but inconsistent
with the (unconstitutional) provisions of Title 75.
With this background in mind, we turn to the Commonwealth’s first
issue. The trial court found that PennDOT lacked the authority to amend the
DL-26 form prior to Act 30’s passage. Specifically, the trial court found that
-7-
J-A07006-18
PennDOT’s amendment of the DL-26 form to conform to Birchfield violated
the warnings provision contained in the Motor Vehicle Code at the time.
Specifically, that provision provided that “[i]t shall be the duty of the police
officer to inform the person [suspected of DUI] that . . . if the person refuses
to submit to chemical testing, upon conviction or plea for violating section
3802(a)(1)[7], the person will be subject to the penalties provided in section
3804(c) (relating to penalties).” 75 Pa.C.S.A. § 1547(b)(2)(ii) (West 2016).
We find persuasive a recent en banc decision by the Commonwealth
Court. As in the case at bar, a driver (referred to as “Licensee”) argued that
PennDOT lacked the statutory authority to amend the DL-26 form prior to the
enactment of Act 30. The Commonwealth Court rejected that argument and
explained that:
It is true, as Licensee argues, that the language contained in
Section 1547(b)(2)(ii) was mandatory at the time Trooper
requested that Licensee submit to a blood test. However, while
Section 1547(b)(2)(ii) then commanded that a warning about
enhanced criminal penalties be given, the purpose behind that
provision is to make a licensee aware of the consequences of a
____________________________________________
7 Section 3802(a)(1) of Title 75 provides:
(a) General impairment.—
(1) An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after imbibing
a sufficient amount of alcohol such that the individual is
rendered incapable of safely driving, operating or being in
actual physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(a)(1).
-8-
J-A07006-18
refusal to take the test so that he [or she] can make a knowing
and conscious choice.
Following Birchfield, and as the Superior Court concluded
thereafter, a licensee cannot be criminally punished for refusing a
police officer’s request to test his blood pursuant to the Implied
Consent Law. Although, at the time Trooper requested that
Licensee submit to a blood test, Section 1547(b)(2)(ii) still
required a warning that a licensee would be subject to enhanced
criminal penalties under Section 3804(c) for refusing a test of his
blood, Licensee could not, as a matter of constitutional law, be
subject to such penalties. Stated simply, enhanced criminal
penalties were not a consequence of Licensee’s refusing the
requested blood test. Licensee’s argument is, in effect, that
because the General Assembly did not immediately amend Section
1547(b)(2)(ii), [Penn]DOT and the police had to continue to apply
Section 1547(b)(2)(ii). However, the effect of Birchfield and the
Superior Court cases that followed 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 [Motor] Vehicle Code. See 1 Pa. C.S.[A.] § 1925.
Garlick 176 A.3d at 1036 (cleaned up). Garlick is only persuasive authority.
See Estate of Paterno v. Nat’l Collegiate Athletic Ass’n, 168 A.3d 187,
201 (Pa. Super. 2017). Nonetheless, we fully agree with our sister court’s
well-reasoned analysis and adopt it as our own. Hence, we hold that PennDOT
had the authority to amend the DL-26 form prior to the enactment of Act 30.
Next, the trial court found that, notwithstanding the amended DL-26B
form, courts in Pennsylvania generally presume that defendants are aware of
the law. See Findings of Fact and Conclusions of Law, 8/31/17, at 8, citing
In re Kearney, 7 A.2d 159, 161 (Pa. Super. 1939); see also 18 Pa.C.S.A.
§ 304 cmt. (citations omitted) (“Generally speaking, ignorance or mistake of
law is no defense.”); Commonwealth v. Cline, 177 A.3d 922, 926 (Pa.
-9-
J-A07006-18
Super. 2017) (citation omitted). The trial court reasoned that, even though
Appellee was read the DL-26B form which deleted any reference to criminal
penalties for the failure to submit to a blood test, Appellee was presumed to
be aware of the (unconstitutional) Motor Vehicle Code provision that, until July
20, 2017, mandated enhanced criminal penalties for those convicted of DUI
who refused a blood test. Apparently, however, the trial court did not deem
it necessary to presume that Appellee knew about the United States Supreme
Court’s decision in Birchfield and its impact on the statutory warnings that
are read to individuals who are asked to consent to a blood test.
We are unaware of any Pennsylvania cases addressing whether the
presumption that a defendant knows the law extends to case law as well as
statutory law. We find instructive, however, this Court’s decision in
Commonwealth v. Baldwin, 789 A.2d 728 (Pa. Super. 2001). In Baldwin,
the petitioner filed his Post-Conviction Relief Act petition more than 60 days
after a new rule of constitutional law was announced. As such, he failed to
plead and prove the applicability of the new constitutional rule exception to
the PCRA’s one-year time bar. See 42 Pa.C.S.A. § 9545(b)(2) (requiring that
an untimely PCRA petition that relies on a new rule of constitutional law be
filed within 60 days of the case making that rule retroactive). This Court held
that the petitioner’s ignorance of the case law did not excuse his failure to file
his petition within 60 days of the decision he relied on. Baldwin, 789 A.2d at
731.
- 10 -
J-A07006-18
Implicit within this holding is that individuals are not only presumed to
know statutory law but also developments in case law. This is consistent with
decisions from other jurisdictions. See Plaza v. Hudson, 2008 WL 5273899,
*6 (N.D. Ohio Dec. 17, 2008) (citations omitted) (petitioners have
constructive knowledge of the law “through published case law and the
statutory provisions”).
This presumption is also consistent with the common law heritage of
this Commonwealth. Unlike Louisiana, which has a civil law tradition,
“Pennsylvania has a common law tradition.” In re Roca, 173 A.3d 1176,
1191 (Pa. 2017) (cleaned up). Hence, a substantial component of
Pennsylvania law is not contained within Purdon’s Statutes or the Pennsylvania
Consolidated Statutes. Instead, it is contained within the pages of the
Pennsylvania Reporter, the Atlantic Reporter, and/or prior volumes of court
decisions. It would be incongruous to presume that individuals are aware of
changes in the statutory laws published in the Pamphlet Laws but are not
presumed to be aware of changes in the case law published in the United
States Reports or Pennsylvania Reporter.
Furthermore, the word “law” is generally regarded as including court
decisions. The relevant definition of “law” in Black’s Law Dictionary is, “The
aggregate of legislation, judicial precedents, and accepted legal principles;
the body of authoritative grounds of judicial and administrative action;
esp[ecially], the body of rules, standards, and principles that the courts of a
- 11 -
J-A07006-18
particular jurisdiction apply in deciding controversies brought before them[.]”
Black's Law Dictionary, 1015 (10th ed. 2014) (emphasis added). Hence, “law”
is not only “legislation” but also “judicial precedents.” Birchfield was a
judicial precedent which was the law of this Commonwealth at the time of
Appellee’s arrest. Cf. U.S. Const. art. VI, cl. 2 (the Constitution is the supreme
law of our nation). Accordingly, the presumption that an individual is aware
of the law includes not just statutory compilations but also judicial decisions.
Thus, the trial court erred in finding that Appellee was presumed to believe
she was subject to enhanced criminal penalties because of the unconstitutional
provision of the Motor Vehicle Code.
We also reject the trial court’s contention that the police had an
affirmative duty to inform Appellee that she had a right to refuse a blood test
without risking enhanced criminal penalties. In Commonwealth v. Smith,
77 A.3d 562 (Pa. 2013), our Supreme Court considered whether police officers
were required to inform drivers that a positive chemical test result could be
used against them during criminal proceedings. Our Supreme Court held that
no affirmative duty existed. Id. at 571. Our Supreme Court explained that
“the investigating character and fluid nature of searches and seizures render
rules that require detailed warnings by law enforcement simply unfeasible.”
Id. The same reasoning applies in this case. It would be unfeasible to require
police to inform individuals of current legal developments prior to conducting
a search or seizure. Accordingly, police did not have an affirmative duty to
- 12 -
J-A07006-18
inform Appellee that she could refuse a blood test without risking harsher
criminal penalties. See also Commonwealth v. Smith, 177 A.3d 915, 921-
922 (Pa. Super. 2017) (Birchfield is inapplicable since appellant was read the
revised DL-26B form and, therefore, never advised that she would be subject
to enhanced criminal penalties if she refused to submit to a blood test.).
Having determined that PennDOT had the authority to amend the DL-
26 form prior to Act 30’s enactment, and that Appellee does not reap the
benefit of the presumption of knowing only statutory law, we turn to the
specific facts of these cases. Under Evans, a trial court must consider the
totality of the circumstances when determining if a defendant’s consent to a
blood draw was voluntary. Evans, 153 A.3d at 328 (citation omitted). As our
Supreme Court explained:
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.
Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,
opinion announcing the judgment of the court) (cleaned up), citing
Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa. 1999).
In both of these cases, Appellee was in custody. Thus, the first factor
weighed against a finding of voluntariness. Police did not use coercive tactics
- 13 -
J-A07006-18
nor was Appellee under duress.8 Thus, the second factor weighed in favor of
finding voluntariness. Appellee was properly advised of her right to refuse a
blood draw. Hence, the third factor weighed in favor of a finding of
voluntariness. The fourth and fifth factors were neutral because no evidence
was presented regarding Appellee’s education and intelligence or whether
Appellee was aware that incriminating evidence would be found in her blood.
Finally, Appellee fully cooperated with police. Accordingly, the last factor
weighed in favor of voluntariness. In sum, the only factor that weighed
against a finding of voluntariness was that Appellee was in custody. No
reasonable fact-finder could weigh these factors and determine that Appellee’s
consent was involuntary. As such, we decline to remand this matter for
further fact-finding and instead reverse the trial court’s suppression orders
and remand for further proceedings consistent with this opinion.
In sum, PennDOT had the authority to amend the DL-26 form prior to
the enactment of Act 30. Moreover, the DL-26B form read to Appellee
complied with the dictates of the High Court set forth in Birchfield, and the
police officers had no affirmative duty to tell Appellee that she would not be
subjected to enhanced criminal penalties if she refused the blood tests. With
respect to the specific facts of these cases, we conclude that Appellee’s
____________________________________________
8 Appellee’s arguments at the suppression hearing regarding coercive tactics
and duress were merely recitations of facts indicating that Appellee was under
arrest.
- 14 -
J-A07006-18
consent to the blood draws was voluntary. Accordingly, we reverse the trial
court’s suppression orders and remand for further proceedings consistent with
this opinion.
Orders reversed. Cases remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2018
- 15 -