J-A07016-18
2018 PA Super 111
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GARY WILLIAM MILLER : No. 779 MDA 2017
Appeal from the Order Entered May 1, 2017
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000150-2017
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
OPINION BY OLSON, J.: FILED MAY 03, 2018
The Commonwealth of Pennsylvania appeals from the May 1, 2017 order
granting Gary William Miller’s (“Appellee’s”) motion to suppress blood alcohol
concentration (“BAC”) test results, obtained after the reading of the newly-
revised DL-26B form and without a warrant, during the course of a driving
under the influence (“DUI”) investigation. Appellee argues that, because of a
prior DUI arrest in which he received warnings pursuant to the prior DL-26
form, Appellee subjectively believed that the new form threatened enhanced
criminal punishment if he refused to consent to a blood draw. We hold that,
under these circumstances, Appellee’s (incorrect) subjective belief regarding
the law cannot form the basis for the suppression of his BAC results.
Accordingly, we reverse the trial court’s suppression order and remand for
further proceedings consistent with this opinion.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07016-18
The factual background of this case is as follows. On June 29, 2016,
Officer Robert Holt responded to a motor vehicle accident. Officer Holt
suspected that Appellee, a driver of a vehicle involved in the accident, was
intoxicated and requested Appellee perform field sobriety tests. Appellee
failed those tests and was arrested for suspicion of DUI.
Officer Holt transported Appellee to the hospital where he read him the
DL-26B form. That form informed Appellee that he would face possible civil
penalties for failing to submit to a blood test; however, the form did not
include a warning regarding enhanced criminal penalties for refusing a blood
test. Thereafter, Appellee consented to the blood draw which showed that he
had a BAC of .223.
The procedural history of this case is as follows. On February 16, 2017,
the Commonwealth charged Appellee via criminal information with DUI –
general impairment1 and DUI – highest rate.2 On February 23, 2017, Appellee
moved to suppress the blood draw evidence. The trial court conducted a
suppression hearing on March 28, 2017. On May 1, 2017, the trial court
granted Appellee’s suppression motion. The Commonwealth filed a timely
notice of appeal.3 See Pa.R.A.P. 311(d) (providing that the Commonwealth
____________________________________________
1 75 Pa.C.S.A. § 3802(a)(1).
2 75 Pa.C.S.A. § 3802(c).
3The Commonwealth and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
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may take an appeal as of right from an interlocutory order that substantially
handicaps a prosecution).
The Commonwealth presents one issue for our review:
Did the trial court err in granting Appellee’s [m]otion to [s]uppress
because[,] based on the totality of the circumstances, Appellee
voluntarily consented to the blood draw because, inter alia, he
was not told that he would face harsher criminal penalties for
refusing to submit to a blood test?
Commonwealth’s Brief at 4.
The Commonwealth’s sole issue challenges the trial court’s suppression
order. 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).
Contemporaneously with this opinion, we issued Commonwealth v.
Robertson, 1493 MDA 2017 (Pa. Super. May 3, 2018). In Robertson, we
held that defendants are presumed to know case law in addition to statutory
law. Id. (slip op. at 9-12). Moreover, in Robertson we rejected the
argument that police have an affirmative duty to inform defendants that they
do not face enhanced criminal penalties if they refuse a blood test. Id. (slip
op. at 12-13). Hence, we reject the trial court’s rationale for granting
Appellee’s suppression motion.
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Having determined that the trial court’s rationale was flawed, we turn
to the alternative bases for affirmance advanced by Appellee; i.e. the totality
of the circumstances establish that Appellees did not voluntarily consent to
the blood draw. Under Commonwealth v. Evans, 153 A.3d 323 (Pa. Super.
2016), a trial court must consider the totality of the circumstances when
determining if a defendant’s consent to a blood draw was voluntary. Id. at
328 (citation omitted). As our Supreme Court explained:
While there is no hard and fast list of factors evincing
voluntariness, some considerations include: 1) the defendant’s
custodial status; 2) the use of duress or coercive tactics by law
enforcement personnel; 3) the defendant’s knowledge of his right
to refuse to consent; 4) the defendant’s education and
intelligence; 5) the defendant’s belief that no incriminating
evidence will be found; and 6) the extent and level of the
defendant’s cooperation with the law enforcement personnel.
Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,
opinion announcing the judgment of the court) (cleaned up), citing
Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa. 1999).
First, Appellee relies heavily on Commonwealth v. Myers, 164 A.3d
1162 (Pa. 2017) in support of his contention that his consent was not
voluntary. This argument, however, is based on a misunderstanding of the
facts in Myers. In Myers, the defendant was unconscious. Hence, our
Supreme Court held that the defendant was pharmacologically incapable of
consenting to a blood draw. Id. at 1181. Myers does not implicate consent
by individuals who are conscious, like Appellee in this case. Accordingly,
Appellee’s heavy reliance on Myers is misplaced.
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Second, Appellee avers that he subjectively believed he would face
increased criminal penalties if he refused a blood draw. Appellee avers that
the last time he was arrested for DUI, prior to the Supreme Court of the United
States’ decision in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), he
was read the DL-26 form. As we explained in Robertson, the DL-26 form
included a warning that failure to submit to a blood draw would subject a
defendant to enhanced criminal penalties. See Robertson, 1493 MDA 2017
(slip op. at 2 n.1). Appellee, therefore, argues that the trial court properly
considered his subjective belief that enhanced criminal consequences attached
to the refusal to consent to a blood draw.
Appellee’s argument fails in light of our Supreme Court’s decision in
Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000). In Strickler, our
Supreme Court explained that, while a defendant’s subjective belief regarding
his or her ability to refuse to consent to a search may be considered as part
of the totality of the circumstances, it is the police officer’s express warnings
which are most important when evaluating subjective belief. See id. at 901.
In other words, incorrect subjective beliefs that are contradicted by a police
officer’s actual statements to a defendant diminishes the weight a trial court
may place on the defendant’s errant subjective belief.
Officer Holt explicitly informed Appellee of his right to refuse a blood
test and correctly warned him that refusal could lead to certain civil penalties.
Appellee’s failure to recognize that Officer Holt’s warnings differed from those
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he received in the past, and his reliance on the previous police interaction,
cannot weigh heavily against finding voluntary consent. Instead, an incorrect
subjective belief based on failure to listen to explicit warnings from police
officers is entitled to little, if any, weight when evaluating the totality of the
circumstances surrounding a consent to search.
We also find instructive a decision in a related field. As noted above,
drivers face potential civil consequences for refusing to consent to a blood
draw when police suspect they are driving under the influence. One of those
civil penalties is driver’s license suspension. If a driver knowingly refuses to
submit to a blood draw, his or her driver’s license is suspended for a specified
period of time. In this context, our Supreme Court held that a driver’s
subjective belief about the accuracy of implied consent warnings is an
insufficient basis to claim that refusal to submit to a blood test was
involuntary. Nardone v. Commonwealth, Dep't of Transp., Bureau of
Driver Licensing, 130 A.3d 738, 751 (Pa. 2015) (citation omitted). In light
of Birchfield, the Commonwealth Court has held that Nardone is still good
law. Park v. Commonwealth, Dep't of Transp., Bureau of Driver
Licensing, 178 A.3d 274, 281 (Pa. Cmwlth. 2018) (citation omitted). It would
be inconsistent to allow for an incorrect subjective belief regarding the criminal
consequences of not consenting to a blood draw to be weighed heavily against
a finding of voluntariness while an incorrect subjective belief regarding the
consequences of refusing a blood draw is not dispositive in the civil context.
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Instead, Nardone implies that an incorrect subjective belief regarding the
consequences of not consenting to a blood draw is a minor factor when
considering the totality of the circumstances.
Repeat DUI offenders, owing to past legal transgressions, are not
entitled to a benefit that would be unavailable to first-time DUI offenders.
Essentially, Appellee argues that repeat DUI offenders should be held to a
lower standard than first-time DUI offenders. The absurdity of the argument
is self-evident. Individuals that repeatedly endanger the lives of innocent
civilians should be held to a higher standard than those that make a first-time
mistake. Our General Assembly has recognized this fact by providing harsher
penalties for repeat DUI offenders. See 75 Pa.C.S.A. § 3804. We refuse to
provide an incentive for repeat DUI offenders by making it easier for them to
suppress blood draw evidence. Accordingly, we hold that Appellee’s argument
related to his subjective belief of possible increased criminal penalties is
without merit.
Turning to the Cleckley factors in determining whether Appellee
voluntarily consented to the blood draw, we note the following. First, Appellee
was in custody. Thus, the first factor weighed against a finding of
voluntariness. Nevertheless, police did not use coercive tactics nor was
Appellee under duress. Thus, the second factor weighed in favor of finding
voluntariness. Appellee was properly advised of his right to refuse a blood
draw. Hence, the third factor weighed in favor of a finding of voluntariness.
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The fourth factor was either neutral or only slightly weighed against a finding
of voluntariness due to Appellee’s subjective belief regarding the
consequences of refusing a blood draw. The fifth factor was neutral because
no evidence was presented regarding whether Appellee was aware that
incriminating evidence would be found in his blood. Finally, Appellee fully
cooperated with police. Accordingly, the last factor weighed in favor of
voluntariness. No reasonable fact-finder could weigh these factors and
determine that Appellee’s consent was involuntary. As such, we decline to
remand this matter for further fact-finding and instead reverse the trial court’s
suppression order and remand for further proceedings consistent with this
opinion.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2018
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Commonwealth v. Miller
Combined Opinion