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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES HENRY SHEPARD, IV :
:
Appellant : No. 238 MDA 2018
Appeal from the Order Entered November 27, 2017
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000644-2017
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2018
James Henry Shepard, IV appeals from the order denying his 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 following facts underlying this appeal. On
November 27, 2016, at approximately 12:21 a.m., Trooper Barry Rowland
initiated a traffic stop after observing Appellant’s vehicle swerving between
lanes and straddling the yellow line. Upon approaching the vehicle, the
trooper smelled marijuana emanating from the vehicle and Appellant, and
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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(b). We granted Appellant’s petition,
per curiam, and this timely appeal of the suppression order followed.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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noticed Appellant seemed dazed. Appellant admitted to smoking marijuana
earlier that evening. Appellant agreed to perform standard field sobriety tests,
which he failed.
Appellant was arrested and transported to Mount Nittany Medical Center
for BAC testing. The trooper 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 his blood drawn
and signed the DL-26B form. Trooper Rowland did not warn Appellant of any
other penalties beyond what was contained in the DL-26B form, which made
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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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no reference to any criminal penalties. Nor did Trooper Rowland advise
Appellant that no enhanced criminal penalties would apply if Appellant refused
the blood draw. Appellant was not threatened by Trooper Rowland to submit
to the blood draw.
The test results indicated the presence of THC, the principal
psychoactive constituent of marijuana. Appellant was charged with driving
under the influence of alcohol or a controlled substance, and several drug and
vehicle offenses. On July 20, 2017, he filed a motion to suppress the BAC test
results on the basis that, because no warrant was obtained to test his blood,
his 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 the parties submitted briefs in support of their respective
positions. On November 27, 2017, the trial court entered an order denying
suppression. This timely appeal followed.
On appeal, Appellant raises the following issue for our review: “Was
[Appellant’s] consent to the blood draw unconstitutional pursuant to the
Fourth Amendment to the United States Constitution and Article I , Section 8
of the Pennsylvania Constitution?” Appellant’s brief at 5.
Appellant challenges the trial court’s denial of his motion to suppress
the BAC test results on the ground that his 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
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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
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 warrantless
blood draws cannot be justified as a search incident to arrest, and therefore a
state cannot threaten enhanced criminal penalties as a means to obtain
consent. 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,
correctly reflects Birchfield’s holding. Despite the creation of the DL-26B
form in the wake of Birchfield, numerous cases pending before trial and
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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 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.”).
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.
With this background, we turn to Appellant’s issue. Appellant argues
that, despite the elimination in the DL-26B form of any reference to the
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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 his consent
to the blood test was not voluntary because he was “expected and assumed
to know the laws of this Commonwealth, including the criminal penalties if he
refused to consent to a blood draw.” Appellant’s brief at 16. Appellant argues
that, given his knowledge that subsection 3804(c) had not been amended, he
“was not made aware of his rights to refuse against a warrantless search since
he was not informed that the enhanced criminal penalties of [subsection
3804(c)] would not be enforced.” Id. at 16-17.
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,
661 (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 or specifically deemed unconstitutional by Pennsylvania
appellate courts at the time of Appellant’s arrest, it was nevertheless a legal
nullity pursuant to Birchfield. See Commonwealth v. Johnson, __ A.3d
__, 2018 PA Super 133, at *9 (Pa.Super. 2018) (holding that “the Supreme
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Court of the United States’ constitutional pronouncements have immediate
and national consequence. Birchfield became the ‘supreme Law of the Land,’
which [appellant] and all other citizens of the United States were presumed to
know on the day that the Supreme Court announced it - April 20, 2016”); see
also 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.”).
Moreover, Appellant’s ignorance of United States constitutional law
cannot invalidate his consent to the blood draw. Johnson, supra at *9. On
the day Birchfield became law, Appellant should have known that subsection
3804(c)’s additional criminal sanctions were without force or effect of law, and
the law constructively imports that knowledge to him. Id. Therefore,
Appellant’s ignorance of his constitutional rights provides no excuse. Id.
Accordingly, we conclude that the trial court correctly determined that the
language contained in the revised DL-26B form was a correct statement of the
law in accordance with Birchfield when Officer Rowland read it to Appellant.
See Trial Court Opinion, 11/27/17, at 9-10.
Appellant next claims that his consent was invalid under the totality of
the circumstances because it was given when he was under arrest and not
free to leave, and he was not informed of his right to refuse the blood draw.
Appellant’s brief at 24-26.
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Under Evans, a trial court must consider the totality of the
circumstances when determining if a DUI suspect’s consent to a blood draw
was voluntary. See Evans, supra at 331. As Our Supreme Court has
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) (citing Commonwealth v.
Cleckley, 738 A.2d 427, 433 n.7 (Pa. 1999)).
Based on our review of the certified record, we conclude that the facts
of the instant case clearly weigh in favor of a finding of knowing and voluntary
consent. Although Appellant was in custody at the time he consented, there
is no evidence that his consent to the blood draw was the product of duress,
threats, or coercion on the part of law enforcement. No testimony was
presented that Trooper Rowland’s demeanor or expression was harsh or
confrontational, or that he misrepresented the facts in an effort to get
Appellant to consent to the blood draw. Indeed, Appellant stipulated that
Trooper Rowland did not threaten him. Trooper Rowland read Appellant the
revised DL-26B form, which provided an accurate statement of the law, before
requesting his consent to the blood draw. The revised DL-26B warning clearly
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indicated the blood draw was merely a request, which Appellant was free to
refuse and be subject to certain civil penalties. Appellant had the opportunity
to read and sign the revised DL-26B form, and thereafter elected to sign it,
indicating his consent to the blood draw.
Furthermore, any subjective, but inaccurate, belief of Appellant that he
could not refuse a blood test without criminal penalties does not weigh heavily
against voluntariness since, as noted above, Appellant was presumed to know
the legal effect of Birchfield on the day it was announced. There was no
evidence to suggest that Appellant suffered any physical mental, or emotional
limitation, or had any language barrier that would have impaired his ability to
comprehend the language of the DL-26B form so as to render him incapable
of providing voluntary consent to the blood draw. Finally, no evidence was
presented regarding whether Appellant was aware that incriminating evidence
would be found in his blood.
Accordingly, the record supports the trial court’s determination that,
under the totality of the circumstances, Appellant’s consent was knowing and
voluntary. See Trial Court Opinion, 11/27/17, at 11. Therefore, the trial court
did not err in denying Appellant’s motion to suppress the results of his BAC
test.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/18
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