J-S62004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JOHN THOMAS DRESCHER
Appellant No. 1948 MDA 2016
Appeal from the Judgment of Sentence Entered October 18, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No: CP-21-CR-0002676-2015
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2017
Appellant John Thomas Drescher appeals from the October 18, 2016,
judgment of sentence entered in the Court of Common Pleas of Cumberland
County (“trial court”), following his jury convictions for riding his bicycle under
the influence of alcohol (“DUI”) in violation of Section 3802(a)(1) of the
Vehicle Code, 75 Pa.C.S.A. § 3802(a)(1). Upon review, we vacate and remand
for resentencing.
The facts and procedural history underlying this case are undisputed.
As recounted by the trial court:
Late at night on June 2, 2015, Officer Jory C. Harlan initiated
a traffic stop after witnessing [Appellant], on a bicycle without
visible reflectors or red lights, ride past the officer’s parked
vehicle. Immediately upon approaching [Appellant], Officer
Harlan detected the strong odor of alcohol and noted that
[Appellant] appeared visibly intoxicated and had both slurred
speech and difficulty standing. During the course of the stop,
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* Retired Senior Judge assigned to the Superior Court.
J-S62004-17
[Appellant] admitted to having consumed multiple alcoholic
beverages. [Appellant] failed the field sobriety tests administered
by Officer Harlan, and was arrested for DUI. Upon being brought
to the police station and being read the refusal warnings contained
within Pennsylvania’s DL-26 form, [Appellant] refused to provide
a sample of his blood. [Appellant] was charged with both DUI-
General Impairment (3rd or subsequent) and DUI-General
Impairment with Refusal (3rd or subsequent).
Following a jury trial on March 22, 2016, [Appellant] was
found guilty on both counts and was ordered to appear for
sentencing on May 24, 2016. [Appellant] failed to appear for
sentencing on May 24, 2016, and a bench warrant was issued.
[Appellant] was subsequently arrested on the bench warrant[.]
Trial Court Opinion, 1/6/17, 1-2. On July 29, 2016, Appellant filed a “post-
trial motion,” arguing that it would be illegal under Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016), which was issued on June 23, 2016, for the
trial court to impose upon him enhanced penalties for his refusal to submit to
a blood draw. On October 18, 2016, the trial court sentenced Appellant to,
inter alia, one to five years’ imprisonment for DUI-general impairment (with
refusal). On the same day, the trial court denied Appellant’s “post-trial
motion,” which the trial court treated as a post-sentence motion. Appellant
timely appealed. Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a)
opinion.
On appeal,1 Appellant argues only, and the Commonwealth agrees, that
the trial court erred as a matter of law under Birchfield in imposing upon him
enhanced penalties for his refusal to provide a blood sample.
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1 Because Appellant’s claim implicates the legality of his sentence, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. 2014).
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In Birchfield, the United States Supreme Court held that criminalization
of a suspect’s refusal to consent to a warrantless blood test violates the Fourth
Amendment to the United States Constitution. Birchfield, 136 S. Ct. at 2186.
Recently, we concluded that the imposition of enhanced criminal penalties for
refusing to provide a blood sample is constitutionally invalid. See
Commonwealth v. Giron, 155 A.3d 635, 639-40 (Pa. Super. 2017) (vacating
a sentence that included increased criminal penalties based on a defendant’s
refusal to consent to a blood test).
Instantly, as noted above, it is undisputed that Appellant was subjected
to enhanced penalties for his refusal to provide a blood sample. Appellant was
sentenced to one to five years’ imprisonment for DUI-general impairment
(with refusal). Thus, consistent with Birchfield and Giron, we agree with
Appellant and the Commonwealth that Appellant’s sentence here is illegal.
Accordingly, we vacate Appellant’s judgment of sentence and remand this
matter to the trial court for resentencing.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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