Com. v. Kiger, P.

J-S27020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL FRED KIGER :
:
Appellant : No. 1423 WDA 2018

Appeal from the Judgment of Sentence Entered August 29, 2018
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000293-2017

BEFORE: OLSON, J., OTT, J., and COLINS, J.

MEMORANDUM BY OTT, J.: FILED OCTOBER 24, 2019

Paul Fred Kiger appeals from the judgment of sentence imposed August

29, 2018,1 in the Greene County Court of Common Pleas. Prior to sentencing,

the court, sitting as fact-finder, convicted Kiger of driving under the influence

of alcohol (“DUI”) (general impairment/incapable of driving safely; second

offense) and DUI (highest rate of alcohol).2 The court sentenced Kiger to a

term of 72 hours to 6 months’ incarceration. On appeal, Kiger claims the court

erred in failing to grant his motion to suppress his blood test results based on

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 Kiger’s sentence was filed the following day.

2 See 75 Pa.C.S. §§ 3802(a)(1) and (c), respectively.
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failure to obtain a warrant. See Kiger’s Brief at 4. For the reasons below, we

affirm the judgment of sentence.

The facts3 and procedural history are as follows. On June 20, 2017,

between the hours of 10:00 p.m. and 11:00 p.m., Trooper Lucas Borkowski,

Pennsylvania State Police, was on routine patrol when he exited Interstate 79

at the Ruff Creek Exit, and then made a right-hand turn onto Route 221, which

is a two-lane highway. At this point, Trooper Borkowski encountered Kiger’s

vehicle, a 2003 Buick Lesabre, stopped in the southbound, right-hand lane for

approximately 20 seconds. Believing the occupants4 in the car may have had

a minor issue, Trooper Borkowski did not conduct a traffic stop. The trooper

observed Kiger’s vehicle continue down Route 221, turn right on Greene Valley

Road, travel approximately 100 yards, and then stop again in the travel lane.

Based on the traffic violations and concern for those individuals in the car, the

trooper activated his emergency lights and conducted a traffic stop.

Trooper Borkowski spoke with Kiger and noticed Kiger’s eyes were

glassy and bloodshot, and there was a strong order of alcohol emanating from

the vehicle. Kiger’s speech was slow and slurred. The trooper asked Kiger

why he stopped in the middle of the road on two occasions, and Kiger replied

____________________________________________

3 The factual history was summarized based on the testimony taken at the
April 9, 2018, suppression hearing and the August 29, 2018, non-jury trial.

4 There was a female passenger, who was subsequently identified as Kiger’s
girlfriend.

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that he was trying to locate a restroom. The trooper also inquired if Kiger had

been drinking, to which Kiger replied in the affirmative. Because he was alone,

the trooper did not conduct a complete set of standardized field sobriety tests.

Trooper Borkowski then placed Kiger under arrest for suspicion of DUI, and

transported him to the state police barracks in Waynesburg, Pennsylvania.

At the barracks, Trooper Borkowski advised Kiger of his implied consent

rights and read a DL-26 form that pertained to a breath test. With respect to

the breath-related DL-26 form, “those warnings would have included the

admonishment that refusal would not only result in a license suspension, but

also would result in a presumption of the highest level of blood alcohol.”

Order, 4/9/2018, at unnumbered 3. Kiger did not refuse to submit to the

breath test, but he was physically unable to perform the breath test.

Trooper Borkowski then asked Kiger to submit to a blood test. The

trooper indicated Kiger was “completely cooperative” with agreeing to the test.

N.T., 4/9/2018, at 11. The trooper advised Kiger that the blood draw was

voluntary, he could not be forced to submit to it, he did not have the right to

speak with an attorney when deciding whether to submit, and that he would

only have his license suspended and have to pay a restoration fee if he

refused. Kiger consented to the blood draw, and the test revealed he had a

blood alcohol content (“BAC”) of 0.206%. See id. at 27.

Kiger was charged with two counts of DUI, one count of careless driving,

and one count of stops and park at an intersection. He filed a motion to

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suppress on February 5, 2018, alleging his consent had been involuntary and

the results were obtained in violation of his rights pursuant to Birchfield v.

North Dakota, 136 S.Ct. 2160 (U.S. 2016). A suppression hearing was held

on April 9, 2018. One day later, the trial court entered an order, denying

Kiger’s suppression motion. Kiger then filed a motion for reconsideration of

the court’s decision on April 16, 2018. The court granted the motion to hear

further argument on the matter. A hearing was subsequently held on May 29,

2018. Two days later, the court denied Kiger’s motion for reconsideration,

stating it remained “convinced that [Kiger] consented to the draw of blood[.]”

Order, 5/31/2018. The matter proceeded to a non-jury trial on August 29,

2018. At the conclusion of the trial, the court convicted Kiger of two counts

of DUI, and found him not guilty of careless driving and stops and park at an

intersection. The court immediately sentenced Kiger to a term of 72 hours to

six months’ incarceration for the DUI (highest rate of alcohol) count. The

remaining DUI offense merged for sentencing purposes. Kiger did not file

post-sentence motions, but did file this timely appeal.5

In his sole issue on appeal, Kiger complains:

[The trial court] err[ed] in finding that no warrant to take the
blood of the driver suspected of driving under the influence of
alcohol was required where the police warned the driver of an
enhanced penalty if he refused to take a breath test which … the
____________________________________________

5 On October 2, 2018, the trial court ordered Kiger to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Kiger filed
a concise statement on October 19, 2018. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on November 2, 2018.

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driver could not complete due to his physical condition and then
[was] taken to the hospital for a blood draw[.]

Kiger’s Brief at 16. Moreover, he states:

Once a Trooper tells a person arrested for driving under the
influence of alcohol, and that person understands that a refusal to
take a chemical test will result in an enhanced penalty, it cannot
be erased from memory. When the Trooper cannot complete the
breath test, if the person is taken to the hospital, there should, at
least, in the absence of a search warrant, be a knowing consent
to the blood test. The driver did not know the officer would have
to obtain a search warrant. The driver was not given an
explanation of the difference in the reading of the forms. There
was no effort on the part of the arresting officer to correct the
understanding that the absence of enhanced penalty language
does not mean the penalty to this driver would be less. The mere
boiler plate reading of the two inconsistent DL-26 forms in a
“contract of adhesion-like” situation while under arrest and
detained for chemical test is not sufficient to remove from the
motorist’s mind the first admonishment that a refusal may result
in an enhancement of his penalty.

Id. at 21-22. Additionally, he contends:

The driver here submits that the court did not determine whether
or not the consent was voluntary or compelled by the threat of an
enhanced penalty and the expectation that giving the blood test
yielded a lesser penalty.

There is nothing in any of the forms read to advise the
motorist that higher criminal penalties cannot be imposed for
refusal of the blood test to correct what had been stated as to the
other chemical test that his lung capacity prevented him from
taking. The trooper did not tell him. There was nothing at the
hospital that erased the warning first given to the motorist at the
police station.

Id. at 24-25.

Our standard of review regarding suppression challenges is well-settled:

Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the

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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, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. The
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the [trial court’s]
conclusions of law [] are subject to our plenary review.

Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.

Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (internal

citation omitted).

Additionally, we are guided by the following: Both the “Fourth

Amendment to the [United States] Constitution and Article I, Section 8 of [the

Pennsylvania] Constitution protect citizens from unreasonable searches and

seizures.” Commonwealth v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016),

quoting Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013). “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.”

Evans, 153 A.3d at 327-328, quoting Commonwealth v. Kohl, 615 A.2d

308, 315 (Pa. 1992). “A search conducted without a warrant is deemed to be

unreasonable and therefore constitutionally impermissible, unless an

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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).

[A panel of this Court] set forth fundamental law with regard to
warrantless blood draws and consent as follows:

In Birchfield [v. North Dakota, U.S. , 136 S.Ct. 2160
(2016)], the Supreme Court of the United States 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). Within one week of that decision, [the
Pennsylvania Department of Transportation] revised the
[standard consent form used by police, known as the] DL-
26 form[,] to remove the warnings mandated by 75
Pa.C.S.A. § 3804 that theretofore informed individuals
suspected of DUI that they would face enhanced criminal
penalties if they refused to submit to a blood test in order
to comply with Birchfield. [The] revised form [is] known
as Form DL-26B[.]

***

This Court subsequently held that [] enhanced criminal
penalties [imposed] for failure to consent to a blood draw
constituted an illegal sentence because of Birchfield. See
Commonwealth v. Giron, 2017 PA Super 23, 155 A.3d
635, 639 (Pa. Super. 2017).

On July 20, 2017, Governor Thomas W. Wolf signed into law
Act 30 of 2017, which amended 75 Pa.C.S.A. § 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.A. §
3804(c). Hence, from July 20, 2017 onwards the DL-26B
form conforms to the revised statutory law.

Commonwealth v. Venable, 2018 PA Super 329, 200 A.3d 490,
495 (Pa. Super. 2018) (original brackets omitted).

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Commonwealth v. Krenzel, 209 A.3d 1024, 1028 (Pa. Super. 2019).

In analyzing whether consent is voluntary, we note:

In determining the validity of a given consent, the Commonwealth
bears the burden of establishing that a consent is the product of
an essentially free and unconstrained choice—not the result of
duress or coercion, express or implied, or a will overborne—under
the totality of the circumstances. The standard for measuring the
scope of a person’s consent is based on an objective evaluation of
what a reasonable person would have understood by the exchange
between the officer and the person who gave the consent. Such
evaluation includes an objective examination of the maturity,
sophistication and mental or emotional state of the defendant.
Gauging the scope of a defendant’s consent is an inherent and
necessary part of the process of determining, on the totality of the
circumstances presented, whether the consent is objectively valid,
or instead the product of coercion, deceit, or misrepresentation.

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.

Venable, 200 A.3d at 497 (citations omitted).

Furthermore, 75 Pa.C.S. § 1547 is relevant to our analysis, which states,

in pertinent part:

(a) General rule.--Any person who drives, operates or is in
actual physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given consent to one or
more chemical tests of breath or blood for the purpose of
determining the alcoholic content of blood or the presence of a
controlled substance if a police officer has reasonable grounds to
believe the person to have been driving, operating or in actual
physical control of the movement of a vehicle in violation of
section [...] (relating to driving under influence of alcohol or
controlled substance)[.]

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(b) Civil penalties for refusal.

(1) If any person placed under arrest for a violation of
section 3802 is requested to submit to chemical testing and
refuses to do so, the testing shall not be conducted but upon
notice by the police officer, the department shall suspend
the operating privilege of the person[.]

***

(2) It shall be the duty of the police officer to inform the
person that:

(i) the person’s operating privilege will be suspended
upon refusal to submit to chemical testing and the
person will be subject to a restoration fee of up to
$2,000; and

(ii) if the person refuses to submit to chemical breath
testing, upon conviction or plea for violating section
3802(a)(1), the person will be subject to the penalties
provided in section 3804(c) (relating to penalties).

75 Pa.C.S. § 1547 (emphasis in original). Moreover,

[o]ur Supreme Court examined Section 1547 in Commonwealth
v. Myers, 640 Pa. 653, 164 A.3d 1162 (Pa. 2017), a case wherein
the defendant who was arrested on suspected DUI charges was
unconscious in the hospital when a police officer read him consent
forms and then directed hospital personnel to conduct a blood
draw. The Myers Court determined:

[O]nce a police officer establishes reasonable grounds to
suspect that a motorist has committed a DUI offense, that
motorist “shall be deemed to have given consent to one or
more chemical tests of breath or blood for the purpose of
determining the alcoholic content of blood or the presence
of a controlled substance.” 75 Pa.C.S.A. § 1547(a).
Notwithstanding this provision, Subsection 1547(b)(1)
confers upon all individuals under arrest for DUI an explicit
statutory right to refuse chemical testing, the invocation of
which triggers specified consequences. See 75 Pa.C.S.A. §
1547(b)(1) (“If any person placed under arrest for DUI is

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requested to submit to chemical testing and refuses to do
so, the testing shall not be conducted[.]”).

Under this statutory scheme, a motorist placed under arrest
for DUI has a critical decision to make. The arrestee may
submit to a chemical test and provide the police with
evidence that may be used in a subsequent criminal
prosecution, or the arrestee may invoke the statutory right
to refuse testing, which: (i) results in a mandatory driver’s
license suspension under 75 Pa.C.S.A. § 1547(b)(1); (ii)
renders the fact of refusal admissible as evidence in a
subsequent DUI prosecution pursuant to 75 Pa.C.S.A. §
1547(e); and (iii) authorizes heightened criminal penalties
under 75 Pa.C.S.A. § 3804(c) if the arrestee later is
convicted of DUI. In very certain terms, [the Supreme]
Court has held that, in requesting a chemical test, the police
officer must inform the arrestee of the consequences of
refusal and notify the arrestee that there is no right to
consult with an attorney before making a decision. See
[Com., Dept. of Transp., Bureau of Traffic Safety v.]
O’Connell, 521 Pa. 242, 555 A.2d [873,] 877-878 (Pa.
1989). “An arrestee is entitled to this information so that
his choice to take a chemical test can be knowing and
conscious.” Id. at 878. The choice belongs to the arrestee,
not the police officer.

Myers, 164 A.3d at 1170-1171 (some case citations, original
brackets, and footnote omitted) (emphasis added). The Myers
Court further noted that 75 Pa.C.S.A. § 1547 expressly “states
that, ‘[i]t shall be the duty of the police officer’ to inform the
arrestee of the consequences of refusal.” Id. at 1175 n.12, citing
75 Pa.C.S.A. § 1547(b)(2). Our Supreme Court held that “[t]his
unambiguous statutory command leaves no doubt regarding the
obligations of the police officer requesting the arrestee’s
submission to a chemical test.” Id. (citation omitted).

Krenzel, 209 A.3d 1024, 1030-31 (Pa. Super. 2019). Lastly, this Court has

previously rejected claims asserting that “awareness of pre-Birchfield

enhanced criminal penalties for refusing a blood draw render[s a] blood draw

involuntary[,]” having opined as follows:

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[I]t is not necessary that the police completely review changes in
the law, from the time of a motorist’s previous arrest or DUI-
related schooling until the motorist’s next traffic stop. [An
appellant’s] ignorance of the most recent Supreme Court
decisional law did not impose upon the police [] an affirmative
duty to provide [him] with an update on criminal procedure prior
to requesting a blood-draw. Neither our state nor the federal
constitution compels our police officers to serve as road-side law
professors.

Given the foregoing, [an appellant’s] personal failure to realize
that the Supreme Court's issuance of Birchfield struck down §
3804(c)’s enhanced criminal penalties is irrelevant. [...Believing]
that our Commonwealth’s enhanced penalties remained in full
force and effect [... was a m]isconception [] predicated upon a
fundamentally flawed view of our federalism.

Venable, 200 A.3d at 496-497, quoting Commonwealth v. Johnson, 188

A.3d 486, 491 (Pa. Super. 2018) (finding defendant’s ignorance of the law did

not render her consent involuntary). See also Krenzel, 209 A.3d at 1029.

Here, the court concisely found the following:

Mr. Kiger was fully cooperative with the Pennsylvania State
Police. He consented to a breath sample and was unable to
perform that test. He continued to cooperate and the facts
establish that his consent to the draw of blood was not a product
of coercion, and considering the totality of the circumstances the
Court determined the consent to the draw of blood to be
voluntarily and freely given.

Trial Court Opinion, 11/2/2018, at 9-10.

We agree with the court’s conclusion. Trooper Borkowski utilized DL-26

forms that accurately reflected the current law in accordance with Birchfield

and this Commonwealth’s progeny. As the trooper pointed out, he presented

Kiger with two different DL-26 forms – one for breath and one for blood. See

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N.T., 4/9/2018, at 10, 22.6 First, he read Kiger the breath-specific form at

the police barracks, which contained a warning of enhanced penalties. Id. at

10, 22. When Kiger could not complete the breath test for physiological

reasons, the trooper then transported him to the hospital to complete the

blood test. Id. at 10. After arriving at the hospital, Trooper Borkowski stated

he then read the blood-specific DL-26 form to Kiger. Id. at 10. The trooper

advised Kiger that he could not be forced to submit to the blood test, he does

not have the right to an attorney, and there were civil penalties for refusing,

namely, a license suspension and a restoration fee. Id. at 12, 24. The trooper

indicated he was aware of the ramifications of Birchfield,7 and did not discuss

any enhanced criminal penalties for refusal to consent to a blood test with

Kiger because as noted above, Birchfield declared such enhancements

unconstitutional. See Commonwealth v. Smith, 177 A.3d 915, 921 (Pa.

Super. 2017) (restating Birchfield “prohibited states from imposing criminal

penalties upon an individual’s refusal to submit to a warrantless blood test.”).

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6 We note the DL-26 forms were not admitted into evidence at the time of
the suppression hearing. Nevertheless, the trial court found the trooper
provided Kiger with the proper warnings. See Order, 4/9/2018, at 8.

7 N.T., 4/9/2018, at 12, 21-22.

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Kiger consented to both tests and was “cooperative the entire time.” Id. at

11-12, 28.8

Furthermore, to the extent Kiger alleges that he did not know the

trooper would have to obtain a warrant if Kiger did refuse and he was not

given an explanation of the difference in the substance of the forms, we find

his argument fails for several reasons. First, in accordance with Johnson and

Venable, Kiger’s “ignorance of the most recent Supreme Court decisional law”

did not impose an affirmative duty on Trooper Borkowski to provide Kiger

“with an update on criminal procedure prior to requesting a blood-draw.”

Venable, 200 A.3d at 497. Accordingly, the trooper did not have to inform

Kiger about the warrant requirement if he chose to refuse the blood test.

Second, as noted above, “the standard for measuring the scope of a

person’s consent is based on an objective evaluation of what a reasonable

person would have understood by the exchange between the officer and the

person who gave the consent.” Venable, 200 A.3d at 497. We find that

based on the totality of the circumstances, a reasonable person in Kiger’s

position would understand the content on the two DL-26 forms, given that the

trooper read the appropriate form prior to each test, each form described

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8 Kiger testified and agreed that he was cooperative with the trooper’s request
for a blood test, stating, “I figured it’d be less of a penalty if I cooperated and
gave him the test[.]” N.T., 4/9/2018, at 41. It also merits mention that while
Kiger did not sign the forms, Officer Borkowski testified that a defendant’s
signature is only necessary for “refusal purposes.” Id. at 23.

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different consequences based upon refusal, and there was a passage of time

between the two tests when Kiger was transported from the police barracks

to the hospital.

Based on our review of the record in the present case, we conclude that

the totality of the circumstances, clearly weigh in favor of finding that Kiger

provided knowing and voluntary consent to the blood draw. Kiger presents

no compelling case law to support his argument regarding Trooper Borkowski’s

instructions with regard to the two DL-26 forms. Additionally, Kiger fails to

present any evidence to suggest that the trooper’s recitation of the DL-26

forms was coercive, deceitful or misrepresentative. See Venable, 200 A.3d

at 497. Notably, counsel for Kiger did not object to the forms at the time of

the suppression hearing. Kiger agreed to submit to the test and underwent

the blood draw. Therefore, we conclude no reasonable fact-finder could

determine his consent was involuntary. Accordingly, we affirm the judgment

of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/24/2019

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