Commonwealth v. Venable

200 A.3d 490

COMMONWEALTH of Pennsylvania, Appellee

v.David Hays VENABLE, Sr., Appellant

No. 3581 EDA 2017

Superior Court of Pennsylvania.

Argued August 8, 2018

Filed December 4, 2018

Rory B. Driscole, Bethlehem, appellant.

Katharine R. Kurnas, Assistant District Attorney, Easton, for Commonwealth, appellee.

BEFORE: STABILE, J., STEVENS, P.J.E.^* and STRASSBURGER, J.^**

OPINION BY STRASSBURGER, J.:

David Hays Venable, Sr. (Appellant) appeals from the October 6, 2017 judgment of sentence of 30 days to six months of incarceration following his convictions for driving under the influence (DUI) and careless driving. Specifically, Appellant challenges the denial of his pre-trial suppression motion, which alleged that his warrantless blood draw was obtained in violation of Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016),¹ and the traffic stop was unlawful. We affirm.

On November 16, 2016, at approximately 1:30 a.m., Sergeant Jeffrey Johnston of the Hellertown police department was stopped at a red light on Main Street behind Appellant. When the light turned green, Appellant made a quick right turn onto High Street, "spinning his tires, causing the rear end of the truck to kick out or fishtail[ into the other lane, and] ... then accelerated very quickly west on High Street." N.T., 8/15/2017, at 7, 17. At that point, Sergeant Johnston activated his lights and sirens to conduct a traffic stop. Appellant did not stop. He continued to drive carelessly, including failing to utilize a turn signal. He eventually stopped on Diamond Street and attempted to reverse into a parking space, forcing Sergeant Johnston to reverse his police vehicle to avoid being struck. Id. at 7-8.

Appellant exited the driver's seat and attempted to leave, but Sergeant Johnston instructed Appellant to remain in his vehicle. Sergeant Johnston approached Appellant in the driver's seat, and informed him that he was stopped because of "the reckless driving of spinning his tires and fishtailing at the intersections of High and Main Street[.]" Id. at 9. Appellant's speech was slurred, he was unable to grab his requested paperwork with his fingers, and Sergeant Johnston detected the odor of alcohol from inside the vehicle. Id. at 10.

Based on this interaction, Sergeant Johnston had Appellant perform multiple field sobriety tests, including the walk-and-turn test and one-leg stand test, which Appellant failed. Based upon his entire interaction with Appellant to that point, Sergeant Johnston believed Appellant was under the influence of alcohol to the point that he was incapable of driving safely. Id. at 14.

Appellant was arrested and transported to the Bethlehem Township DUI Center for further processing. The blood draw procedure was video recorded at the DUI Center, and that recording was presented to the suppression court in connection with Appellant's challenge to the warrantless blood draw. The video was not made part of the certified record on appeal. However, the parties agree² that Appellant was read the revised DL-26B form,³ he signed it, and he agreed to submit to a blood draw, which indicated a blood alcohol content (BAC) of 0.15. Id. at 19-20, 24. See also Appellant's Brief at 9-10.

Appellant was charged with DUI – general impairment (as a first offense), DUI – high rate of alcohol (as a second offense), and careless driving. Prior to trial, Appellant filed a motion to suppress, claiming that the traffic stop was unlawful, and any consent to the warrantless blood draw "was accomplished only after a warning that a failure to consent would result in enhanced criminal penalties if convicted, as set forth in Pennsylvania's DL-26 Implied Consent Form, ... and was therefore not voluntary and knowing." Omnibus Pre-Trial Motion, 7/7/2017, at ¶ 9. A hearing was held where the aforementioned facts were developed. The trial court denied the motion, finding that Sergeant Johnston had probable cause to conduct the traffic stop and Appellant voluntarily consented to a blood draw after being read the DL-26B form. Order, 9/27/2017, at 5-6.

Following a stipulated nonjury trial, Appellant was convicted of DUI – high rate of alcohol and careless driving, and was sentenced as indicated above. Appellant timely filed a notice of appeal.⁴ Appellant presents two issues for this Court's consideration.

1. Whether the trial court erred in refusing to suppress the results of a blood draw where Appellant was read the DL-26B warnings which do not address enhanced criminal penalties and under the totality of the circumstance[s] Appellant did not know[ingly] and voluntary[ily] give his consent to the blood draw?

2. Whether the trial court erred in finding the arresting officer had probable cause or re[a]sonable suspicion to perform a valid traffic stop?

Appellant's Brief at 5 (unnecessary capitalization and suggested answers omitted).

We consider Appellant's claims mindful of the following.

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 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. Where ... the appeal of the determination of the suppression court turns on allegations of legal error, 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 conclusions of law of the court[ ] below are subject to our plenary review.

Commonwealth v. Perel , 107 A.3d 185, 188 (Pa. Super. 2014) (quoting Commonwealth v. Jones , 605 Pa. 188, 988 A.2d 649, 654 (2010) ).

We begin with an overview of Birchfield , its effect on our DUI laws, and forms DL-26 and DL-26B, as they relate to Appellant.

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). Within one week of that decision, PennDOT revised the DL–26 form to remove the warnings mandated by 75 Pa.C.S.[ ] § 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 ]. It was this revised form, known as Form DL–26B (which did not include warnings regarding enhanced criminal penalties), that the [police] read to [Robertson].

***

This Court subsequently held that imposing enhanced criminal penalties 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).

On July 20, 2017, Governor Thomas W. Wolf signed into law Act 30 of 2017[,] which amended 75 Pa.C.S.[ ] § 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.[ ] § 3804(c). Hence, from July 20, 2017 onwards the DL–26B form conforms to [the revised] statutory law. For approximately the previous 13 months, including at the time[ ] of [Robertson's] arrest[ ], 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.

Robertson , 186 A.3d at 444-45 (some citations omitted).

Like Robertson, Appellant was read the DL-26B warnings prior to Act 30's amendment of section 3804. On appeal, Appellant contends that this inconsistency between the DL-26B form and the provisions of our DUI statute that were rendered unconstitutional by Birchfield , but not statutorily amended until Act 30, required suppression of his blood draw. Appellant's Brief at 19-20. In other words, Appellant argues that because subsection 3804(c) subjected him to enhanced criminal penalties, and subsection 1547(b)(2)(ii) required the police to warn Appellant of such penalties, the blood draw violated Birchfield .

We recently rejected Appellant's flawed argument and held that PennDOT had the authority to amend the DL-26 form to comport with Birchfield prior to the enactment of Act 30. Robertson , 186 A.3d at 446. In doing so, we adopted the following well-reasoned analysis of the Commonwealth Court.

It is true, as [Garlick] argues, that the language contained in [subs]ection 1547(b)(2)(ii) was mandatory at the time [the t]rooper requested that [Garlick] submit to a blood test. However, while [subs]ection 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 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 [the t]rooper requested that [Garlick] submit to a blood test, [subs]ection 1547(b)(2)(ii) still required a warning that a licensee would be subject to enhanced criminal penalties under [subs]ection 3804(c) for refusing a test of his blood, [Garlick] could not, as a matter of constitutional law, be subject to such penalties. Stated simply, enhanced criminal penalties were not a consequence of [Garlick]'s refusing the requested blood test. [G

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