J-A11029-17
2017 PA Super 217
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOHN LAMONTE ENNELS : No. 1895 MDA 2016
Appeal from the Suppression Order October 19, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002605-2016
BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*
DISSENTING OPINION BY STEVENS, P.J.E.: FILED JULY 11, 2017
While the United States Supreme Court has made it more difficult as a
practical matter for law enforcement officers to protect the public from
motorists who are operating a vehicle under the influence of alcohol, 1 we do
not have to do so under the specific facts of the case before us.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
In Birchfield v. North Dakota, ___ U.S. ____, 136 S.Ct. 2160, 195
L.Ed.2d 560 (2016), the United States Supreme Court held that:
(1) The Fourth Amendment permits warrantless breath tests
incident to arrests for drunk driving;
(2) The Fourth Amendment does not permit warrantless blood
tests incident to arrests for drunk driving; and
(3) Motorists cannot be deemed to have consented to submit
to a blood test on pain of committing a criminal offense,
abrogating State v. Smith, 849 N.W.2d 599.
Id.
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Here, there is no question police officers had probable cause to arrest
Appellee Ennels (“Appellee”) for driving under the influence of a controlled
substance, marijuana.2 Appellee was driving a car involved in a traffic
accident and was attempting to flee the scene when officers stopped him.
The “overwhelming smell of marijuana emanating from the vehicle” led to
the arrest of Appellee for DUI.
Appellee was asked to submit to a blood test and signed the DL-26
Form in the presence of one of the police officers.3 Significantly, as stated
____________________________________________
2
In the Affidavit of Probable Cause, Officer Marcos Rodriguez stated the
following:
As I walked up to the driver’s side of the vehicle, the
driver, later identified as [Appellee], opened up the front door. I
ordered him to stay inside the vehicle, and as I walked up closer
I got an overwhelming odor of marijuana coming from the inside
of the vehicle. I asked [Appellee] if he had been smoking or
drinking, to which he responded no to both. I ordered
[Appellee] out of the vehicle and detained him.
Due to the smell of marijuana coming from the vehicle,
myself and OFF. HERNANDEZ conducted a search of the vehicle.
OFF. HERNANDEZ found a partially smoked blunt of suspected
marijuana, or a “roach[,]” sitting within the open center console
of the vehicle. The suspected marijuana blunt was recovered at
approx. 1940 HOURS.
See Affidavit of Probable Cause, filed 4/1/16, at ¶¶ 2-3.
3
Among the provisions set forth in the form was the following:
If you refuse to submit to the chemical 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
(Footnote Continued Next Page)
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by the trial court in its Finding of Facts, Appellee “did not express any
hesitation or concern with the DL-26 warnings.” See Findings of Fact and
Conclusions of Law in Disposition of [Appellee’s] Omnibus Pretrial Motion,
10/19/16, at 3.
Because I believe that under the totality of the circumstances Appellee
provided valid consent to the warrantless blood test which was not tainted
by an inaccurate warning of the consequences of refusal, I dissent from the
Majority’s conclusion to uphold the granting of Appellee’s motion to suppress
the results of the blood test in this case.
There is no evidence herein that if Appellee were convicted of DUI his
criminal punishment would be enhanced by failure to sign the Form. In fact,
if he failed to sign the Form he could not be given any greater penalty than if
he signed it, which Appellee did without hesitation. For example, the DL-26
Form revealed that the enhanced criminal penalties one may face for
refusing to submit to a blood test are identical to those he or she faces if
_______________________
(Footnote Continued)
18 months. In addition, if you refuse to submit to the chemical
test, and you are convicted of violating Section 3802(a)(1)
(relating to impaired driving) of the Vehicle Code, then, because
of your refusal, you will be subject to more severe penalties set
forth in Section 3804(c) (relating to penalties) of the Vehicle
Code. These are the same penalties that would be imposed if
you were convicted of driving with the highest rate of alcohol,
which include a minimum of 72 consecutive hours in jail and a
minimum fine of $1,000.00, up to a maximum of five years in
jail and a maximum fine of $10,000.
See DL-26 FORM ¶ 3.
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convicted of Section 3804 (c) of the Vehicle Code relating to “incapacity;
highest blood alcohol; controlled substances.” Thus, there is no further
penalty where one is convicted of DUI-controlled substance regardless of
whether that individual previously had consented to a blood test. The
Majority actually recognizes this fact in Footnote 7 of the Majority Opinion.
In Birchfield, supra, the United States Supreme Court highlighted
the significant government interest in preserving highway safety. Id. at
____, 136 S.Ct. at 2164, 195 L.Ed.2d at ____. As such, a finding that
Appellee’s consent was voluntary, where he would not have been subject to
harsher criminal penalties were he to have refused to sign the DL-26 Form
and later convicted of a drug-related DUI, is in line with the reasoning and
promotes the spirit of Birchfield. In addition, this conclusion does not run
afoul of this Court’s recent decisions in Commonwealth v. Evans, 153 A.3d
323 (Pa.Super. 2016) and Commonwealth v. Giron, 155 A.3d 635
(Pa.Super. 2017).
In Evans, the defendant was arrested and charged with DUI highest
rate of alcohol, third offense, and DUI general impairment, third offense. In
finding the Birchfield case to be controlling, the Evans Court stated that:
with respect to an individual who refuses a blood or breath test
and who is then convicted of Section 3802(a)(1) (DUI, general
impairment), 75 Pa.C.S.A. § 3803 also grades the conviction at
the same level as an individual who violates Section 3802(c),
which is DUI, highest rate of alcohol. For individuals such as
Appellant, who have “one or more prior offenses,” 75 Pa.C.S.A. §
3803(b)(4) grades a conviction for DUI, highest rate of alcohol
and DUI, general impairment (when coupled with a refusal to
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submit to a blood or breath test) as a misdemeanor of the first
degree. 75 Pa.C.S.A. § 3803(b)(4). This is a higher grade of
offense than “[a]n individual who violates section 3802(a)[, DUI,
general impairment] and has more than one prior offense”—
which Section 3803(a)(2) grades as a second-degree
misdemeanor. 75 Pa.C.S.A. § 3803(a)(2).
Thus, even though Pennsylvania's implied consent law
does not make the refusal to submit to a blood test a crime in
and of itself, the law undoubtedly “impose[s] criminal penalties
on the refusal to submit to such a test.” Birchfield, 136 S.Ct. at
2185–2186. To be sure, Section 3804(c) provides that an
“individual who violates section 3802(a)(1)[, DUI, general
impairment] and refused testing of blood” is punished more
severely than an individual who commits the stand-alone DUI,
general impairment offense under Section 3802(a)(1)—and to
the same extent as an individual who violates Section 3802(c),
relating to DUI, highest rate of alcohol. 75 Pa.C.S.A. § 3804(c).
Id. at 331.
Similarly, the Giron Court held that where the defendant who had
been charged with a first offense DUI-general impairment was subjected to
the enhanced criminal penalties provided by Sections 3803 and 3804 for
refusing to provide a blood sample, his sentence was illegal. Id. at 637. In
so finding, the Giron Court summarized the relevant Pennsylvania DUI
statutes as follows:
Pennsylvania law prescribes a three-tiered DUI statutory
scheme, which penalizes and punishes drivers with higher levels
of alcohol in their blood more severely than drivers with
relatively lower blood alcohol levels. Section 3802(a) prohibits an
individual from driving a vehicle “after imbibing a sufficient
amount of alcohol such that the individual is rendered incapable
of safely driving ... the vehicle” and from driving a vehicle with a
blood alcohol concentration (“BAC”) of at least 0.08% but less
than 0.10%. Section 3802(b) prohibits an individual from driving
a vehicle with a BAC of at least 0.10% but less than 0.16%.
Section 3802(c) prohibits an individual from driving a vehicle
with a BAC that is 0.16% or higher. 75 Pa.C.S.A. § 3802.
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Section 3804 sets forth the penalties for individuals who violate
sections 3802(a), (b), and (c). The penalties are lowest for
individuals who violate section 3802(a) and are the greatest for
individuals who violate section 3802(c). However, section 3804
also sets forth the punishment for individuals who refuse a blood
or breath test and who are then convicted of DUI-general
impairment. Specifically, it punishes individuals who refuse the
test (and are convicted of DUI-general impairment) at the same
level as those who are convicted of DUI-highest rate of alcohol.
Finally, with respect to an individual who refuses a blood or
breath test and who is then convicted of DUI-general
impairment, section 3803 also grades the conviction at the same
level as an individual who is convicted of DUI-highest rate of
alcohol. For individuals such as Appellant, who have “one or
more prior offenses,” section 3803(b)(4) grades a conviction for
DUI-highest rate and DUI-general impairment (when coupled
with a refusal to submit to a chemical test) as a first-degree
misdemeanor. 75 Pa.C.S.A. § 3803(b)(4). A first-degree
misdemeanor is punishable by up to five years' imprisonment.
18 Pa.C.S.A. § 1104. Second offense DUI-general impairment
which results in an accident causing damage to a vehicle is
punishable by up to six months' imprisonment. 75 Pa.C.S.A. §
3803(b)(1). Furthermore, section 3804 provides that an
individual convicted of second offense DUI-general impairment
faces a mandatory minimum of five days' imprisonment, 75
Pa.C.S.A. § 3804(a)(2)(i), while an individual convicted of
second offense DUI-general impairment with refusal faces a
mandatory minimum of 90 days' imprisonment. 75 Pa.C.S.A. §
3804(c)(2)(i).
Id. at 638–39.
In the instant case, there simply was no threat of enhanced criminal
penalties for Appellee’s refusing to consent to a blood draw pursuant to his
arrest for a drug-related DUI, nor will Appellee, in fact, receive an enhanced
penalty if he ultimately is convicted of driving under the influence of
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controlled substances. The police officers acted appropriately and within
constitutional principles.
As I would find the suppression court improperly applied the law to the
facts herein and its resultant legal conclusions were erroneous, I would
reverse and remand for trial.
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