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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LARRY N. SCHWAB : No. 1896 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-0002166-2016
BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 24, 2017
The United States Supreme Court has highlighted the significant
government interest in preserving highway safety. See Birchfield, supra.
In this case, that preservation of highway safety requires a reversal of the
suppression court.
In Commonwealth v. Ennels, ___ A.3d ____, 2017 WL 2954227
(Pa.Super. July 11, 2017), the Majority’s decision upheld the trial court’s
finding that Ennels’ consent to a blood test had been invalid. However, in
my Dissent therein I expressed my belief that under the totality of the
circumstances, Ennels had provided valid consent to the warrantless blood
test, which was not tainted by an inaccurate warning of the consequences of
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*
Former Justice specially assigned to the Superior Court.
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refusal. As the facts of the instant matter present even stronger support for
such a conclusion, I respectfully dissent herein for the same reason.
While the Majority here views Ennels as dispositive, I find it to be
distinguishable from the instant matter. The Ennels Court found it
significant that Ennels had been charged with both DUI (controlled
substances) and DUI (general impairment) and that “the DL-26 form warned
him that, for at least one of the charges, he faced enhanced criminal
penalties if he refused to submit to the blood test.” Ennels, supra at 7.1
However, Schwab (hereinafter referred to as “Appellee”) was charged only
with DUI (controlled substances), 75 Pa.C.S.A. § 3802(d)(2), after he
admitted to ingesting a half-bag of heroin in a parking lot. See Affidavit of
Probable Cause, filed 2/26/16.
Prior to his submission to the blood test, Appellee signed the DL-26
Form in the presence of Officer McCreary after the latter read the Form to
Appellee apprising him of the penalties associated with a chemical test
refusal. Specifically, the Form revealed that the penalties one may face for
refusing to submit to a blood test are identical to those he or she faces if
convicted of Section 3804 (c) of the Vehicle Code. 2 Under Section 3804 (c),
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1
In dicta, the Court further stated that it would conclude that the trial court
had not erred in finding Evans’ consent was involuntary even if the DUI
charges had related only to controlled substances. Id.
2
This statute reads as follows:
(Footnote Continued Next Page)
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one receives no further penalty when he or she is convicted of a drug-
related DUI offense regardless of whether that individual previously had
consented to a blood test. See 75 Pa.C.S.A. § 3802(d).
Indeed, as the Majority acknowledges, “the Vehicle Code provides that
an individual convicted of DUI (general impairment) who refused to submit
to a blood test shall be subject to the same minimum sentence and
minimum and maximum fines as someone convicted of DUI (highest rate)
_______________________
(Footnote Continued)
(c) Incapacity; highest blood alcohol; controlled
substances.--An individual who violates section 3802(a)(1) and
refused testing of blood or breath or an individual who violates
section 3802(c) or (d) shall be sentenced as follows:
(1) For a first offense, to:
(i) undergo imprisonment of not less than 72
consecutive hours;
(ii) pay a fine of not less than $1,000 nor more than
$5,000;
(iii) attend an alcohol highway safety school approved by
the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500;
(iii) attend an alcohol highway safety school approved by
the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
(3) For a third or subsequent offense, to:
(i) undergo imprisonment of not less than one year;
(ii) pay a fine of not less than $2,500; and
(iii) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
75 Pa.C.S.A. § 3804 (c).
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and DUI (controlled substance). 75 Pa.C.S. 3804(c).” Commonwealth v.
Schwab, No. 1896 MDA 2016, unpublished memorandum at 5 n. 3.
Because Appellee was charged only with a drug-related DUI offense
and the penalties for alcohol-related blood test refusals and drug-related DUI
prosecutions are identical, Appellee’s consent was voluntary and had not
been obtained following an impermissible threat that he would be subjected
to increased penalties if he did not consent to a blood test and was later
convicted.
In Birchfield, the United States Supreme Court recognized that state
implied consent statutes requiring blood tests are reasonable when the
subject consents and that such consent need not be expressly given but
fairly may be inferred from the context in which it was given. The Court
went on to state that its decision should not be read to cast doubt on prior
opinions that “have referred approvingly to the general concept of implied-
consent laws that impose civil penalties and evidentiary consequences on
motorists who refuse to comply.” Birchfield, ___ U.S. at ____, 136 S.Ct. at
2185-86, 195 L.Ed2d. at ____ (citations omitted).
In addition, as I previously opined, “[i]n 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 herein was voluntary,
where he would not have been subject to harsher criminal penalties were he
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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.”
Ennels, supra at 9 (Stevens, P.J.E., dissenting).
This is especially so herein where Appellee was never suspected of
driving under the influence of alcohol, was charged only with DUI (controlled
substances) and admitted to ingesting heroin at the scene of the accident.
The suppression court erred when it suppressed the blood tests results
upon finding that under the totality of the circumstances Appellee’s consent
was involuntarily obtained due to a threat of increased criminal penalties
were he to refuse to provide the same, and I would reverse and remand for
trial.
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