J-A09002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LISA ELDEN :
:
Appellant : No. 619 WDA 2017
:
Appeal from the Order January 24, 2017
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0002103-2016
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 27, 2018
Lisa Elden appeals from the order denying her motion to suppress blood
alcohol content (“BAC”) test results obtained without a warrant during a
driving under the influence (“DUI”) investigation.1 We affirm.
The parties stipulated to the information set forth in the affidavit of
probable cause, which we summarize as follows. On the evening of August 8,
2016, Appellant was operating a Nissan Armada in Altoona, Pennsylvania,
when she struck another vehicle. Officer Scott Hand of the Altoona Police
Department responded to the accident. He noticed the odor of an intoxicating
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1 Appellant timely moved the trial court to certify the interlocutory suppression
order for our review pursuant to 42 Pa.C.S. § 702(b). The trial court granted
the request, and Appellant timely filed a petition for permission to appeal in
this Court pursuant to Pa.R.A.P. 1311. We granted Appellant’s petition, per
curiam, and this timely appeal of the suppression order followed.
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beverage on Appellant’s person, and that her eyes were bloodshot. Appellant
agreed to perform field sobriety tests, which she failed. Appellant was
arrested and transported to UPMC Altoona for BAC testing. The officer read
to Appellant the Pennsylvania Department of Transportation DL-26B waiver of
rights form (“the DL-26B form”), as revised in June 2016.2 Appellant
thereafter consented to have her blood drawn and signed the DL-26B form.
Test results indicated a BAC of .194%. See Criminal Complaint, 8/20/16, at
3.
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2Specifically, the DL-26B form that was read to Appellant provided in relevant
part as follows:
It is my duty as a police officer to inform you of the following:
1. You are under arrest for driving under the influence of alcohol
or a controlled substance in violation of Section 3802 of the
Vehicle Code.
2. I am requesting that you submit to a chemical test of blood.
3. If you refuse to submit to a blood test, your operating privileges
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 18 months.
4. You have no right to speak to an attorney or anyone else before
deciding whether to submit to testing. If you request to speak
with an attorney or anyone else after being provided these
warnings or you remain silent when asked to submit to a blood
test, you will have refused the test.
DL-26B Form.
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Appellant was charged with DUI—highest rate of alcohol. On October
20, 2016, she filed a motion to suppress the BAC test results on the basis
that, because no warrant was obtained to test her blood, her Fourth
Amendment rights were violated pursuant to Birchfield v. North Dakota,
136 S. Ct. 2160 (2016). The trial court conducted a suppression hearing,
after which Appellant filed a brief in support of her suppression motion. On
January 4, 2017, the trial court entered an order denying suppression. This
timely appeal followed.
On appeal, Appellant raises the following issues for our review:
1. Whether the new DL-26B form renders consent to blood draw
voluntary and if it is in violation of Birchfield v. North
Dakota, and Commonwealth v. Myers[, 164 A.3d 1162 (Pa.
2017)]?
2. Whether the new DL-26B form violates the Fourth Amendment
right of the United States Constitution and Article 1, Section 8
of the Pennsylvania Constitution[?]
Appellant’s brief at 4.
Appellant’s issues challenge the trial court’s denial of her motion to
suppress the BAC test results on the ground that her consent was invalid. In
addressing a challenge to the denial of a suppression motion,
Our standard of review . . . is limited to determining whether the
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. We are bound by
the suppression court’s factual findings so long as they are
supported by the record; our standard of review on questions of
law is de novo. Where, as here, the defendant is appealing the
ruling of the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the defense
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as remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record . . ..
Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017) (citations
omitted).
Preliminarily, we review the legal and administrative developments
regarding Pennsylvania’s DUI laws over the past two years. In June of 2016,
the Supreme Court of the United States in Birchfield 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. Birchfield, supra at 2185-86. This Court subsequently held
that the imposition of enhanced criminal penalties for failure to consent to a
blood test constituted an illegal sentence under Birchfield. See
Commonwealth v. Giron, 155 A.3d 635, 639 (Pa.Super. 2017).
Within one week of the Birchfield decision, PennDOT revised the DL-
26 form to remove the warnings mandated by 75 Pa.C.S. § 3804(c), that
informed individuals suspected of DUI that they would face enhanced criminal
penalties if they refused to submit to a blood test. This revised DL-26B form,
which does not include warnings regarding enhanced criminal penalties,
complies with Birchfield. Despite the creation of the DL-26B form in the
wake of Birchfield, numerous cases pending before trial and appellate courts
involved defendants who were given the warnings contained in the original
DL-26 form that erroneously informed them that they would face enhanced
criminal penalties if they refused to submit to a blood test. This Court
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ultimately held that the DL-26 form warnings read to defendants prior to
PennDOT’s revision were partially inaccurate. See Commonwealth v.
Evans, 153 A.3d 323, 331 (Pa.Super. 2016) (“Since Birchfield held that a
state may not ‘impose criminal penalties on the refusal to submit to [a
warrantless blood] test,’ the police officer’s advisory to [a]ppellant [that
refusal to submit to the test could subject appellant to more severe penalties
set forth in 75 Pa.C.S. § 3804(c)] was partially inaccurate.”). Thus, when
evaluating whether a defendant’s consent to a blood draw was voluntary or
involuntary, trial courts are required to consider the totality of the
circumstances, including whether the defendant was given inaccurate
information regarding the criminal consequences of refusing to submit to a
blood test. Id. (citing Birchfield, supra at 21860.
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, and thereafter, the DL-26B form conforms to statutory law.
However, for approximately the prior thirteen months, including at the time
of Appellant’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.
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With this background, we turn to Appellant’s issues, which we will
address together. Appellant argues that, despite the elimination in the DL-
26B form of any reference to the imposition of criminal penalties for refusing
to consent to a blood test, criminal penalties still attached to such a refusal
under then-existing Pennsylvania law because Appellant was arrested before
subsection 3804(c) was amended to comport with Birchfield. On this basis,
Appellant contends that her consent to the blood test was not voluntary
because she was not advised that criminal penalties would attach under
subsection 3804(c) if she was convicted of DUI after refusing the blood test.
Appellant's arguments lack merit. It is well established that when a
statute is deemed unconstitutional, it is ineffective for any purpose and it is
as if it were never enacted. See Commonwealth v. Wolfe, 140 A.3d 651,
66 (Pa. 2016); see also 16 C.J.S. CONSTITUTIONAL LAW § 265 (2016)
(reciting the general rule that an unconstitutional, non-severable statute is
“not a law, has no existence, is a nullity, or has no force or effect or is
inoperative” (footnotes omitted)). Thus, even though subsection 3804(c) had
not yet been amended at the time of Appellant’s arrest, it was nevertheless a
legal nullity pursuant to Birchfield. See Commonwealth v. Smith, 177
A.3d 915, 921 (Pa.Super. 2017) (“To reiterate, the decision in Birchfield,
which was controlling law at the time of Appellant’s arrest, prohibited states
from imposing criminal penalties upon an individual’s refusal to submit to a
warrantless blood test.”). Accordingly, the trial court correctly determined
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that the language contained in the revised DL-26B form was a correct
statement of the law in accordance with Birchfield when Officer Hand read it
to Appellant. See Trial Court Opinion, 1/4/17, at 22.
Notably, Appellant does not contend that her consent was involuntary
for any reason other than that she was not advised of the criminal penalties
of subsection 3804(c) which were deemed unconstitutional by Birchfield.
Based on our review of the record, we agree with the trial court’s
determination that, under the totality of the circumstances, Appellant’s
consent was voluntary. See Trial Court Opinion, 1/4/17, at 24. We therefore
conclude that the trial court did not err in denying Appellant’s motion to
suppress the results of her BAC test.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2018
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3If, upon remand, Appellant is convicted of DUI, she cannot be sentenced
under the prior version of 75 Pa.C.S. § 3804, and will instead be sentenced
under the amended version of the statute, which complies with Birchfield.
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