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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LUCAS J. HARTMAN, : No. 337 MDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered February 12, 2018,
in the Court of Common Pleas of Mifflin County
Criminal Division at No. CP-44-CR-0000280-2017
BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 22, 2019
Lucas J. Hartman appeals from the February 12, 2018 aggregate
judgment of sentence of 72 hours’ to 6 months’ imprisonment imposed after
he was found guilty in a bench trial of driving under the influence of alcohol
or a controlled substance (“DUI”) and DUI – highest rate of alcohol.1 After
careful review, we affirm the judgment of sentence.
The record reflects that the parties stipulated to the facts set forth in
the March 17, 2017 criminal complaint and affidavit of probable cause. (Notes
of testimony, 1/10/18 at 1; see also certified record at No. 5.) In sum, on
January 1, 2017, at approximately 1:28 a.m., Lewistown Police Officer
David Vallimont was dispatched to a parking lot in the area of South Pine and
1 75 Pa.C.S.A. §§ 3802(a)(1) and 3802(c), respectively.
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Logan Streets in Lewistown, Pennsylvania, to assist with an unconscious
driver. Upon arriving at the scene, Officer Vallimont observed that appellant
was conscious but exhibited multiple signs of intoxication, including slurred
speech, glassy and blood shot eyes, and the odor of alcohol. After failing three
field-sobriety tests, appellant was placed under arrest for suspicion of DUI and
transported to Lewistown Hospital for a blood draw. At the hospital,
Officer Vallimont read appellant a DL-26B form2 and appellant consented to a
blood test. The results of the blood test revealed that appellant’s blood alcohol
content was .199.
On March 17, 2017, appellant was charged with one count each of DUI
and DUI – highest rate of alcohol. On June 6, 2017, appellant was accepted
into the Accelerated Rehabilitative Disposition (“ARD”) program, but his
acceptance was subsequently revoked after he admitted to violating the
conditions of ARD. Thereafter, on January 2, 2018, appellant filed an
omnibus pre-trial motion to suppress the results of his blood test. (See
“Omnibus Pre-Trial Motion,” 1/2/18 at ¶¶ 8-11.) Following an evidentiary
hearing, the trial court denied appellant’s suppression motion on January 10,
2018. Appellant waived his right to a jury trial and proceeded to a bench trial
2 The DL-26B form, “Chemical Testing Warnings and Report of Refusal to
Submit to a Blood Test as Authorized Section 1547 . . . [,]” is commonly
referred to as an implied consent form and notifies the arrestee of the
penalties to which they could be subjected if they refuse to consent to a blood
draw following a DUI arrest. See PennDOT v. Weaver, 912 A.2d 259, 261
(Pa. 2006).
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that same day. On January 11, 2018, the trial court found appellant guilty of
the aforementioned offenses and sentenced him to an aggregate term of
72 hours’ to 6 months’ imprisonment on February 12, 2018. This timely
appeal followed on February 15, 2018.
On February 16, 2018, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 21 days. Appellant filed his timely Rule 1925(b)
statement on March 9, 2018, and the trial court filed its Rule 1925(a) opinion
on March 13, 2018.
In his sole issue on appeal, appellant contends that the trial court erred
in denying his motion to suppress the results of his blood test because his
consent was invalid and involuntary. (Appellant’s brief at 4.)
[Our] standard of review in addressing a challenge to
the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether the
legal conclusions drawn from those facts are correct.
Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence
for the defense as remains uncontradicted when read
in the context of the record as a whole. Where the
suppression court’s factual findings are supported by
the record, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
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“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation
marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). The
“administration of a blood test . . . performed by an agent of, or at the
direction of the government” constitutes a search under both the United States
and Pennsylvania Constitutions. Commonwealth v. Evans, 153 A.3d 323,
327 (Pa.Super. 2016) (citation omitted). “A search conducted without a
warrant is deemed to be unreasonable and therefore constitutionally
impermissible, unless an established exception applies.” Commonwealth v.
Strickler, 757 A.2d 884, 888 (Pa. 2000). “One such exception is consent,
voluntarily given.” Id. at 888-889 (citation omitted).
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) (citation
omitted), cert. denied, 540 U.S. 972 (2003).
On June 23, 2016, the United States Supreme Court decided Birchfield
v. North Dakota, 136 S.Ct. 2160 (2016), wherein it addressed the
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constitutionality of warrantless searches of breath and blood under the Fourth
Amendment, specifically with regard to the search-incident-to-arrest and
consent exceptions to the warrant requirement. Id. at 2184. The Birchfield
Court held, inter alia, that the Fourth Amendment to the United States
Constitution does not permit warrantless blood tests incident to arrests for
drunk driving and that a state may not criminalize a motorist’s refusal to
comply with a demand to submit to blood testing. Id. at 2185-2186 (holding,
“motorists cannot be deemed to have consented to submit to a blood test on
pain of committing a criminal offense.”).
Shortly thereafter, PennDOT revised the DL-26 form to remove the
warnings mandated by Section 3804 of the Motor Vehicle Code that individuals
suspected of DUI would face enhanced criminal penalties if they refused to
submit to a blood test. Subsequently, in Evans, a panel of this court
invalidated Section 3804(c), holding that Pennsylvania’s implied-consent law
unconstitutionally “impose[s] criminal penalties on the refusal to submit to” a
blood test. Evans, 153 A.3d at 331. Thus, where a defendant consented to
a blood test after receiving Pennsylvania’s pre-Birchfield implied consent
warnings, the blood test was unconstitutional because consent was elicited
following warnings relating to the now-invalidated enhanced, mandatory
penalty for failing to consent. Id.
Instantly, appellant contends that his consent to the warrantless blood
draw was not voluntary, knowing, or conscious because the DL-26B form
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Officer Vallimont read to him made no reference to the enhanced criminal
penalties that were still part of the statutory scheme of Section 3804(c) at the
time of his arrest. (Appellant’s brief at 8-9.) In support of this contention,
appellant avers that,
an officer is required to advise an arrestee of the
statutory penalties for refusing to submit to a blood
test including potential enhanced criminal penalties.
Where this is not done, the arrestee is not in a position
to make a “knowing and conscious” decision and,
thus, [appellant’s] consent was not voluntary.
Id. We disagree.
It is well settled that in DUI cases, a police officer requesting that a
motorist submit to a warrantless blood draw “ha[s] no obligation to enlighten
[the motorist] as to the full details of federal constitutional law; [the police
officer] only need[] tell [the motorist] the current, legal
consequences of refusing to consent to the blood-draw.” Commonwealth
v. Venable, A.3d , 2018 WL 6320831, *5 (Pa.Super. 2018) (citation
omitted; bracketed information amended; emphasis added); see also
Commonwealth v. Myers, 164 A.3d 1162, 1171 (Pa. 2017). Here, the
record reflects that following appellant’s arrest for suspicion of DUI,
Officer Vallimont read appellant the DL-26B form concerning the chemical test
of his blood. The DL-26B form included the following language:
It is my duty as a police officer to inform you of the
following:
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You are under arrest for driving under the influence of
alcohol or a controlled substance in violation of
Section 3802 of the Vehicle Code.
I’m requesting that you submit to a chemical test of
blood.
If you refuse to submit to the blood test, your
operating privilege 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.
You have no right to speak to an attorney or anyone
else before you decide whether to submit to testing.
If you request to speak with an attorney or anyone
else after being provided these warnings, or if you
remain silent when asked to submit to a blood test,
you will have refused the test.
DL-26B form, 1/1/7 (numeration omitted); Commonwealth’s Exhibit 1.
The DL-26B form utilized by Officer Vallimont in this matter correctly
reflected the current law in accordance with Birchfield and its Pennsylvania
progeny. Namely, the DL-26B properly informed appellant only of the civil
penalties to which he would be subject; namely, the suspension of his license,
if he refused the blood draw. Appellant was not informed of any enhanced
criminal penalties for refusal to consent to a blood test because Birchfield
declared such enhancement unconstitutional. See, e.g., Commonwealth v.
Smith, 177 A.3d 915, 921 (Pa.Super. 2017) (reiterating that Birchfield
“prohibited states from imposing criminal penalties upon an individual’s
refusal to submit to a warrantless blood test.”). Nor was Officer Vallimont
required to do so under Venable and Myers. Additionally, there is not a
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scintilla of evidence to suggest that Officer Vallimont’s recitation of the DL-26B
form was misrepresentative, misleading, or in any way coercive, and appellant
did not object to the form or ask any questions about the form. Appellant
voluntarily signed the DL-26B form and consented to the blood draw. (See
DL-26 form, 1/1/17; Commonwealth’s Exhibit 1.)
Based on the foregoing, we discern no error on the part of the trial court
in concluding that appellant’s consent to the warrantless blood draw was
voluntary. The record supports the trial court’s factual findings and its legal
conclusions drawn from those facts are correct. Accordingly, the trial court
properly denied appellant’s omnibus motion to suppress to the results his
blood test. Therefore, we affirm appellant’s February 12, 2018 judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2019
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