Com. v. Veasy, J.

J-S23014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERMAINE VEASY :
:
Appellant : No. 1100 EDA 2019

Appeal from the Judgment of Sentence Entered March 25, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000503-2018

BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: Filed: October 1, 2020

Appellant Jermaine Veasy appeals from the judgment of sentence

imposed following his conviction for driving under the influence (DUI)—highest

rate of alcohol and related offenses at a non-jury trial. Appellant argues that

the trial court erred by denying his pre-trial motion to suppress. We vacate

the judgment of sentence, reverse the order denying suppression, and remand

for a new trial.

The trial court set forth its factual findings regarding the suppression

hearing as follows:

On November 5, 2017, at approximately 1:40 a.m., [Appellant]
was observed traveling west on 10th Street in Marcus Hook
Borough, Delaware County, Pennsylvania by Officer Daniel Barnett
and Officer Daniel Pasley. The officers, while sitting in their patrol
cars in a parking lot at the intersection of 10th Street and Church
Street, noticed [Appellant’s] white Mercedes-Benz was audibly
operating at a high rate of speed. As they continued to observe
[Appellant’s] vehicle, the Officers noticed [Appellant’s] vehicle did
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not have headlights on in conditions that were dark and rainy.
After pulling behind [Appellant], Officer Barnett witnessed as
[Appellant’s] vehicle came up on another vehicle at a high rate of
speed and then went around a median on the road to travel into
the oncoming traffic lane. Officer Barnett immediately attempted
to pull [Appellant] over following these observations. [Appellant]
stopped his vehicle two blocks later at around 10th Street and
Blueball Avenue.

Officer Barnett noticed a strong odor of alcoholic beverages
coming from the vehicle immediately upon making contact with
[Appellant]. [Appellant] informed Officer Barnett of his license to
carry a Smith & Wesson M&P firearm, located in the glove
compartment. After checking [Appellant’s] credentials, Officer
Barnett returned to the vehicle and asked [Appellant] to step out.
Officer Barnett then asked [Appellant] whether or not he had been
drinking that evening, to which [Appellant] responded by asking,
“What time is it?” [Appellant] had slurred speech and difficulty
speaking throughout the encounter. Officer Barnett then
requested [Appellant] undergo a series of three field sobriety
tests. [Appellant] was compliant with the Officer but failed each
of the three field sobriety tests administered. Officer Barnett then
asked [Appellant] to submit to a Preliminary Breath Test (PBT) but
was unable to get a proper readout from the device. Following
[Appellant’s] failure to complete the field sobriety tests, Officer
Barnett placed him under arrest for suspicion of driving while
intoxicated. [Appellant] was placed in the back of Officer Pasley’s
patrol car in handcuffs. Officer Barnett then requested [Appellant]
submit to a chemical test of his blood, warning [Appellant] that
his refusal “could” lead to the suspension of his license for
“approximately 12 months.” [Appellant] gave verbal consent to
Officer Barnett’s request. [Appellant] was transported by Officer
Pasley to Crozer-Chester Medical Center. During the ride, Officer
Pasley and [Appellant] made no conversation besides
[Appellant’s] request for his handcuffs to be loosened. At the
hospital, [Appellant] was brought into an examination room and
uncuffed by Officer Pasley, who warned him, “not to do anything
stupid”. A nurse extracted two vials of blood from [Appellant].
Later testing of the blood revealed a BAC of 0.239%.

Trial Ct. Op., 8/2/19, at 2-3 (record citations omitted). We add that Officer

Barnett testified that he did not read the DL-26B implied consent form to

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Appellant because Appellant had already given his verbal consent to the blood

draw. N.T. Suppress Hr’g, 9/20/18, at 40-41. Officer Barnett testified that it

was his understanding that the DL-26B form is only used when a motorist is

going to refuse. Id.

Appellant was later charged with DUI—general impairment, DUI—

highest rate of alcohol, failing to use required lighting, driving at an unsafe

speed, careless driving, reckless driving, and disregarding traffic lanes.1 See

Criminal Compl., 11/5/17; see also Criminal Information, 2/28/18. On March

29, 2018, Appellant filed an omnibus pretrial motion, which included a motion

to suppress. Therein Appellant argued that pursuant to Birchfield v. North

Dakota, ___ U.S. ____, 136 S. Ct. 2160 (2016), the trial court should

suppress evidence of the blood test results, because the Commonwealth

conducted an illegal, warrantless blood draw, and Appellant did not provide

knowing, voluntary, or intelligent consent to the blood draw. See Omnibus

Pretrial Mot., 3/29/18, at 1-4.

The trial court held a suppression hearing on September 20, 2018. At

the end of hearing, the trial court held its decision under advisement.

Additionally, the trial court ordered the parties to submit briefs containing their

____________________________________________

175 Pa.C.S. §§ 3802(a)(1), 3802(c), 4302(a)(2), 3361, 3714(a), 3736(a),
3309(1), respectively.

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arguments, which they did.2 In his brief, Appellant argued that Officer

Barnett’s verbal implied consent warning, including the use of the word “could”

instead of “will” for the driver’s license suspension upon refusal, was

inaccurate and therefore, Appellant did not voluntarily consent to the blood

draw. Mem. of Law, 12/10/18, at 2, 7-11. On December 6, 2018, the trial

court issued an order denying Appellant’s motion to suppress.3

On January 25, 2019, the Commonwealth withdrew the charge of

reckless driving and the case proceeded to a non-jury trial. The trial court

held the verdict under advisement. On February 11, 2019, the trial court

found Appellant guilty of DUI—general impairment, DUI—highest rate of

alcohol, driving at an unsafe speed, and careless driving. The trial court found

Appellant not guilty of the remaining charges.

____________________________________________

2 Appellant and the Commonwealth apparently served their briefs on the trial
court without filing them as of record. After the trial court denied his motion
to suppress, Appellant filed a copy of his brief, captioned “Defendant’s
Memorandum of Law in Support of Motion to Suppress” with the trial court on
December 10, 2019.

3 The trial court’s order reads as follows: “AND NOW, to wit, this 6th day of
December, AD, 2018, upon consideration of Defendant’s Omnibus Pretrial
Motion filed on March 29, 2018, and after a hearing thereon, it is hereby
ORDERED and DECREED that said Motion is DENIED.” Order, 12/6/18. The
trial court’s order does not include findings of fact and conclusions of law
required under Pa.R.Crim.P. 581(I). However, we may “look at the trial
court’s Rule 1925(a) opinion to garner findings of fact and conclusions of law.
Here, the trial court issued a 1925(a) opinion that adequately relates the
court's findings of fact and conclusions of law.” Commonwealth v.
Stevenson, 832 A.2d 1123, 1126 (Pa. Super. 2003) (citation omitted).

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On March 25, 2019, the trial court sentenced Appellant to twenty-three

months’ county intermediate punishment, of which 180 days were to consist

of home confinement with electronic home monitoring, and a consecutive term

of three years’ probation. Appellant was also ordered to pay $1,550 in fines,

$300 in court costs, and a $134 lab fee and to undergo a drug and alcohol

evaluation.

On April 15, 2019, Appellant filed a timely notice of appeal. He filed an

untimely court-ordered Pa.R.A.P. 1925(b) statement.4 The trial court issued

a Rule 1925(a) opinion addressing Appellant’s claims.

Appellant raises two issues for our review:

1. Based on the totality of the circumstances relayed during the
Suppression hearing, did the trial court commit an error of law
in denying Appellant’s motion to suppress?

2. Did the trial court err in denying Appellant’s suppression
motion when the arresting officer did not provide Appellant
with the required opportunity to chose between yielding
consent to a warrantless chemical test or, alternatively,
refusing to yield[?]

____________________________________________

4 We note that the trial court ordered Appellant to file a Rule 1925(b)
statement by May 7, 2019. Appellant filed his 1925(b) statement on May 15,
2019. Appellant did not request, nor did the trial court grant, an extension of
time to file the 1925(b) statement. Therefore it was untimely filed. Under
Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009) (en banc), the
late filing of a Rule 1925(b) statement is per se ineffectiveness of counsel in
criminal cases. Burton, 973 A.2d at 433; accord Pa.R.A.P. 1925(c)(3).
Nevertheless, a remand is not necessary here since “the trial court has filed
an opinion addressing the issue[s] presented in [Appellant’s] 1925(b) concise
statement.” Id.

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Appellant’s Brief at 6-7 (unpaginated) (some capitalization omitted).5

We summarize Appellant’s arguments together as they are closely

related. Appellant argues that the trial court erred in denying his motion to

suppress because Appellant did not voluntarily consent to the blood draw.

Appellant’s Brief at 13-23 (unpaginated). Appellant argues the trial court

erred in not considering our Supreme Court’s decision in Commonwealth v.

Myers, 164 A.3d 1162 (Pa. 2017) in its analysis. Id. at 13 (unpaginated).

More specifically, Appellant argues that the trial court erred in concluding that

because Appellant immediately verbally consented to the blood draw, the

arresting officer did not have to read the implied consent warnings from the

DL-26B form to Appellant. Id. at 15 (unpaginated). Appellant argues that

the facts of this case are comparable to those of Commonwealth v. Krenzel,

209 A.3d 1024, 1032 (Pa. Super. 2019), appeal denied, 222 A.3d 370 (Pa.

2019). Id. at 19 (unpaginated). In both Krenzel and this case, the drivers

were pulled over and arrested for DUI after police administered field sobriety

____________________________________________

5 Appellant’s brief lacks page numbers. Pa.R.A.P. 2173 requires that all pages
of a brief, except for the table of contents and table of citations, to be
numbered separately in Arabic figures. We have explained that “compliance
with the Rules of Appellate Procedure concerning the briefs and reproduced
record are not guideposts but a mandate.” McGee v. Muldowney, 750 A.2d
912, 913 n.1 (Pa. Super. 2000) (citation omitted). However the lack of page
numbers, and other technical defects of Appellant’s brief, do not impede our
review. See Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa. Super.
2013) (noting that despite the defects in appellant’s brief, appellant “has
presented to this Court a thorough and well-developed brief in support of his
arguments. Thus, [the appellant’s] omissions do not impede our review.
Accordingly, we do not find them to be ‘substantial,’ and we will not exercise
our discretion to quash or dismiss his brief.” (citations omitted)).

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tests. Id. (citations omitted). Appellant states that neither he nor Krenzel

were informed of their rights under 75 Pa.C.S. § 1547. Id. at 20

(unpaginated). Appellant argues that the police are “statutorily obligated”

under 75 Pa.C.S. § 1547 to inform a suspect of the “right to refuse chemical

testing and the consequences arising therefrom” and the failure to do so is

grounds to suppress the blood draw. Id. (quoting Krenzel, 209 A.3d at

1032).

Appellant also argues that the Commonwealth’s reliance on

Commonwealth v. Gorbea-Lespier, 66 A.3d 382 (Pa. Super. 2013), to

establish that he consented to the blood draw is in error. Id. at 20-22

(unpaginated). According to Appellant, in Gorbea-Lespier, the defendant

was informed that a refusal to submit to the test would result in a minimum

twelve month license suspension. Id. at 21 (unpaginated) (citing Gorbea-

Lespier, 66 A.3d at 384). Here, Appellant contends that Officer Barnett

informed him that a refusal to submit to the blood test “could” result in a

license suspension of “up to twelve months” instead of informing him that

refusal will result in a twelve month license suspension. Id. (citation omitted).

Appellant additionally notes that in Gorbea-Lespier, the defendant was

informed that he did not have a right to consult with anyone, including an

attorney prior to testing, while here Officer Barnett did not provide the

statutorily required warning that Appellant did not have a right to consult

anyone, including an attorney, before choosing to consent to the blood test.

Id. at 21-22 (unpaginated) (citing Gorbea-Lespier, 66 A.3d at 384).

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Lastly, Appellant essentially argues that Officer Pasley, who escorted

Appellant to the hospital for the blood draw, also failed to provide Appellant

with the necessary implied consent warnings at the time of the blood draw,

which is tantamount to a separate statutory violation supporting the

suppression of the blood draw as nonconsensual. Id. at 22-23 (unpaginated).

Appellant claims that implied consent warnings should have been given at the

time of the blood draw, which Officer Pasley did not do. Id. (citing Myers,

164 A.3d at 1174 (plurality)).

The Commonwealth responds that under 75 Pa.C.S. § 1547(a), a

motorist is deemed to have consented to chemical testing and a police officer

has the duty to inform the driver that his or her driver’s license will be

suspended upon refusal. Commonwealth’s Brief at 7-8. According to the

Commonwealth, the officer had no duty to read the implied consent warnings

to Appellant because Appellant never refused his consent. Id. at 8 (citing

Gorbea-Lespier, 66 A.3d at 390). Furthermore, the Commonwealth argues

that the trial court’s finding that Appellant’s consent was voluntary was correct

based on the facts in the record. Id. at 9-10, 13-14. The Commonwealth

further contends that although Officer Barnett’s statements to Appellant

deviated from the implied consent warnings contained in the DL-26B form,

the deviation did not affect Appellant’s decision to consent to the blood draw.

Id. at 11. The Commonwealth argues that Krenzel is distinguishable from

the facts of this matter because in Krenzel the police did not provide the

defendant with the implied consent warnings at all, while in this case, Officer

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Barnett did provide a warning. Id. at 12-13. The Commonwealth argues that

although Officer Barnett’s warnings differed from those contained in the DL-

26B form, Officer Barnett sufficiently advised Appellant of the consequences

of refusal and Appellant consented to the blood test. Id. at 13-14.

We apply the following standard when reviewing the denial of a

suppression motion:

[o]ur initial task is to determine whether the [trial court’s] factual
findings are supported by the record. In making this
determination, we must consider only the evidence of the
prosecution’s witnesses, and so much evidence of the defense that
remains uncontradicted when fairly read in the context of the
record as a whole. When the evidence supports the factual
findings, we are bound by such findings; we may reverse only if
the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (citation omitted).

In addition, “our scope of review from a suppression ruling is limited to the

evidentiary record that was created at the suppression hearing.”

Commonwealth v. Rapak, 138 A.3d 666, 670 (Pa. Super. 2016) (citation

omitted).

“The United States Supreme Court has held that because ‘the taking of

a blood sample’ is a search within the meaning of the Fourth Amendment to

the United States Constitution, police officers may not compel the taking of a

blood sample without a search warrant, absent an applicable exception.”

Commonwealth v. Haines, 168 A.3d 231, 234 (Pa. Super. 2017) (quoting

Birchfield, ___ U.S. at ____, ____, 136 S. Ct. at 2173, 2185 (footnote

omitted)). “One such exception is consent, voluntarily given.”

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Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000) (citation

omitted); see also Myers, 164 A.3d at 1178 (plurality) (explaining that

Birchfield’s holding “supports the conclusion that . . . an individual must give

actual, voluntary consent at the time that testing is requested”).6

In determining whether Appellant provided voluntary consent to the

warrantless blood test, we note:

[i]n 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.

____________________________________________

6Only section II(C) of Myers is a plurality opinion. Myers, 164 A.3d at 1164,
1173-81. A majority of our Supreme Court joined the remainder of the
decision. Id. at 1164.

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Commonwealth v. Venable, 200 A.3d 490, 497-98 (Pa. Super. 2018)

(citations omitted).

The following Motor Vehicle Code provisions address circumstances in

which an individual arrested for DUI refuses to submit to chemical testing:

§ 1547. Chemical testing to determine amount of alcohol or
controlled substance

(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 . . .
3802 (relating to driving under influence of alcohol or controlled
substance). . . .

(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 (emphases added).

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In Gorbea-Lespier, this Court considered the issue of whether a

motorist’s consent to a first blood draw after being given implied consent

warnings extends to a second blood draw. Gorbea-Lespier, 66 A.3d at 384-

85. In that case the defendant was involved in a two vehicle accident. Id. at

384. The defendant was arrested for suspicion of DUI and transported to a

nearby hospital. Id. On the way to the hospital, the state trooper advised

the defendant of the implied consent warnings and defendant consented to a

blood test. Id. About thirty minutes after the defendant’s blood was drawn,

a supervisor requested that the state troopers obtain a second blood draw.

Id. at 385. The troopers did not read the defendant the implied consent

warnings a second time before the second blood draw. Id. The Gorbea-

Lespier Court found that under the plain language 75 Pa.C.S. § 1547(a) “a

driver is deemed to give consent to one or more chemical tests of blood for

the purpose of determining the alcoholic content of blood if the police officer

has reasonable grounds to believe that person is under the influence of alcohol

when operating his vehicle.” Id. at 389 (emphasis in original). The Gorbea-

Lespier Court further noted that under Commonwealth, Department of

Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873 (Pa.

1989), the police only have to inform a motorist of the consequences of

refusing a breathalyzer test upon the motorist’s refusal. Id. Therefore, this

Court found that the defendant consented to the second blood draw and there

was no need for the police to give him a second implied consent warning. Id.

at 389-90.

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Subsequently, in Myers, our Supreme Court examined Section 1547,

and determined that

[b]y operation of the implied consent statute, once 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. 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.

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. §
1547(b)(1); (ii) renders the fact of refusal admissible as evidence
in a subsequent DUI prosecution pursuant to 75 Pa.C.S. §
1547(e); and (iii) authorizes heightened criminal penalties under
75 Pa.C.S. § 3804(c) if the arrestee later is convicted of DUI. In
very certain terms, this 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 O’Connell, 555 A.2d at 877-78. 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 1170-71 (some citations and footnote omitted, some

formatting altered) (emphasis added).

More recently in Krenzel, this Court interpreted Section 1547 and

Myers as requiring the police to inform suspects arrested for DUI of their right

to refuse chemical testing in order for consent to be valid. See Krenzel, 209

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A.3d at 1031-32 (holding that the trial court erred as a matter of law in finding

that the defendant’s consent to a blood draw was voluntary where she was in

custody and the police asked her to submit to a blood draw without providing

a recitation of the defendant’s rights under 75 Pa.C.S. § 1547, reading the

DL-26B implied consent form, or by confirming her consent in writing). In

Krenzel, the officer did not read any part of the DL-26 implied consent form

to the defendant, and he asked for her consent to the blood test and the

defendant consented. Id. at 1031. The Krenzel Court concluded that the

defendant could not make a knowing choice of whether to submit to a blood

draw when an officer fails to recite the Section 1547 rights informing the

defendant of her right to refuse chemical testing. Id. at 1032.

Here, the trial court held that:

Because [Appellant] gave verbal consent immediately upon the
request of the officer, there was no need to read the DL-26B form.
[Gorbea-Lespier, 66 A.3d at 389-90]. Additionally, because
[Appellant] consented to the blood test, Officer Barnett’s
statements were not misleading and did not affect [Appellant’s]
decision. Peppelman v. Commonwealth, 403 A.2d 1041, 1042
(Pa. Cmwlth. Ct. 1979).

Officer Barnett and Officer Pasley did not have a general duty to
inform [Appellant] of his right to refuse chemical testing of his
blood. Police officers only have a duty to warn individuals of the
consequences of their right to refuse, if they refuse the test. In
[O’Connell], the Supreme Court of Pennsylvania held that police
officers have a duty to inform citizens of the potential
consequences of refusal. Following the decision by the Supreme
Court of the United States in [Birchfield] the standards formed
under O’Connell were modified slightly as to prevent defendants
from facing both civil and criminal penalties as a result of refusing
to consent to a chemical test of their blood. Later, in [Gorbea-
Lespier], the Superior Court of Pennsylvania held that a

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defendant must only be informed of their right to refuse chemical
testing and consequences of doing so after they have already
attempted to refuse. Gorbea-Lespier, 66 A.3d at 389-90.

* * *

Here, Officer Barnett and Officer Pasley did not have a duty to
inform [Appellant] of his right to refuse and the consequences of
doing so because [Appellant] never refused testing. After being
placed into custody, Officer Barnett requested that [Appellant]
submit to a blood test. In response, [Appellant] verbally agreed
to give blood. He did not become argumentative, confused, or
even ask for his attorney; instead he continued to show the same
level of compliance displayed throughout the entire encounter.
While being transported to the hospital by Officer Pasley,
[Appellant] made no statements that indicated he would
withdrawal the consent given to Officer Barnett. At the hospital,
[Appellant] remained compliant with the requests of Officer
Pasley, and allowed the nurse to withdrawal blood without issue.
[Appellant’s] own testimony at the hearing for his Motion to
Suppress offers no evidence suggesting that he otherwise tried to
refuse. At no time, before, during, or after the drawing of
[Appellant’s] blood, did [Appellant] attempt to retract his consent
and refuse a blood test. Because [Appellant] never refused or
attempted to refuse a blood test, Officer Barnett and Officer Pasley
never had a duty to inform him of his right to refuse and the
consequences of doing so.

[Appellant] also argues that Officer Barnett’s extemporaneous
statements violated his right to informed consent, by leading
defendant to inaccurately believe that his license “could be”
suspended, as opposed to the more precise and accurate term
“would be.” [Appellant] cites to case law showing that
Pennsylvania courts have not only imposed a high standard of care
on the warnings to be given to defendants in this situation, but
even that the “could be” and “would be” difference argued here is
in violation of this standard. Still, Officer Barnett’s statements do
not represent a violation of [Appellant’s] right to informed
consent, even if improper, because under O’Connell and its
progeny, police only have a[] duty to inform a defendant of their
rights to refuse after they have begun to refuse or become
uncompliant.

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Trial Ct. Op. at 4-7 (some citations and parentheticals omitted). The trial

court also rejected Appellant’s argument that his consent was not knowing,

intelligent, and voluntary because Officer Barnett’s implied consent warnings

were defective, stating:

[Appellant] was made aware of his right to refuse. Officer Barnett
informed [Appellant] of his right to refuse as he was making his
initial request to [Appellant] to submit to a blood test. [Appellant]
testifies that he was never told he could refuse testing. This court
has already expressed that Officer Barnett’s testimony is more
credible. Additionally, [Appellant] argues in a separate issue,
discussed, supra, that his consent was reliant on the Officer
Barnett’s use of the language “could” instead of “will” when
informing him of his right to refuse. Therefore, it seems that
[Appellant] does in fact recall Officer Barnett informing him of his
right to refuse chemical testing.

Id. at 10 (record citations omitted).

Here, the trial court’s reliance on Gorbea-Lespier was in error. In that

case, this Court interpreted O’Connell as requiring that police only give a

motorist implied consent warnings upon a refusal to submit to chemical

testing. See Gorbea-Lespier, 66 A.3d at 389-90. In Myers, our Supreme

Court explained that when a police officer requests that an arrestee submit to

a chemical test, the 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 Myers, 164 A.3d at 1171. The Myers Court

held that “[a]n arrestee is entitled to this information so that his choice to

take a [chemical] test can be knowing and conscious.” See id. (citation

omitted). This Court, applying Myers, subsequently held that an arrestee

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cannot make a knowing and conscious choice of whether to submit to a blood

draw when an officer does not inform the arrestee of his or her “right to refuse

chemical testing and the consequences arising therefrom . . . .” See Krenzel,

209 A.3d at 1032.

Here, the trial court considered various factors and concluded that the

police did not coerce Appellant, he fully cooperated, and he did not appear

confused by Officer Barnett’s request. However, the primary issue is whether

Officer Barnett complied with his statutory obligation to inform Appellant of

his “right to refuse chemical testing and the consequences arising therefrom.”

See id. In Krenzel, this Court concluded that where an officer does not

inform an arrestee of his or her statutory rights to refuse chemical testing and

the consequences arising therefrom, the arrestee cannot have made a

knowing choice regarding whether to submit to the blood draw. See id.

Officer Barnett testified that he informed Appellant that a refusal of the

blood test “could” lead to the suspension of his license for “approximately 12

months.” N.T. Suppress Hr’g at 17, 19. However, this warning was

inaccurate, as a refusal will lead to a driver’s license suspension of 12 months

for a first time offender and 18 months for a second time offender. See 75

Pa.C.S. § 1547(b)(1), (b)(2)(i). Additionally, Officer Barnett did not inform

Appellant that he did not have the right to consult with an attorney before

making his decision. N.T. Suppress Hr’g at 19; see also Myers, 164 A.3d at

1171 (stating the police must “notify the arrestee that there is no right to

consult with an attorney before making a decision.”) Therefore, Officer

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Barnett’s description of the consequences of refusal did not comply with his

statutory obligations under Section 1547(b). Lastly, neither Officer Barnett

nor Officer Pasley obtained Appellant’s written consent to the blood draw.

While in Krenzel, the officer failed to inform the arrestee of her right

under Section 1547 to refuse chemical testing and the consequences of

refusal, here, Officer Barnett provided Appellant with incomplete information.

See Krenzel, 209 A.3d at 1031-32. Due to the above described

incompleteness of the police warnings, we conclude that Officer Barnett did

not comply with his statutorily mandated duty to inform Appellant of his right

to refuse the blood test and the consequences of refusal. Therefore, because

he was misinformed about his rights, we hold that Appellant did not make a

knowing and conscious choice of whether to submit to the blood draw.

For the foregoing reasons, and in light of Krenzel, we are constrained

to conclude that the trial court erred in denying suppression. See Bryant, 67

A.3d at 724 (stating we may reverse only if the trial court’s legal conclusions

drawn from its factual findings are erroneous).

Judgment of sentence vacated. Order denying suppression motion

reversed. Case remanded for a new trial. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/1/20

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