Commonwealth v. Robertson

186 A.3d 440

COMMONWEALTH of Pennsylvania, Appellant

v.Lisa Gay ROBERTSON

Commonwealth of Pennsylvania, Appellant

v.Lisa Gay Robertson

No. 1493 MDA 2017

No. 1494 MDA 2017

Superior Court of Pennsylvania.

Argued March 20, 2018

Filed May 3, 2018

Alisa R. Hobart, Assistant District Attorney, Reading, for Commonwealth, appellant.

Lynda M. Vernon, Reading, for appellee.

BEFORE: PANELLA, J., OLSON, J., and STEVENS^* , P.J.E.

OPINION BY OLSON, J.:

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 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 , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (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 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.

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 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).

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 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 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 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,

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