Anthony Marchese, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
No. 1996 C.D. 2016
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
September 13, 2017
HONORABLE ROBERT SIMPSON, Judge; HONORABLE MICHAEL H. WOJCIK, Judge; HONORABLE DAN PELLEGRINI, Senior Judge
Submitted: June 30, 2017
OPINION
BY JUDGE SIMPSON FILED: September 13,
Anthony Marchese (Licensee) appeals from an order of the Court of Common Pleas of Lycoming County (trial court)1 that dismissed his license suspension appeal from the Department of Transportation‘s (DOT) 18-month suspension of Licensee‘s оperating privilege under
I. Background
In November 2015, Pennsylvania State Police Trooper Adam Kirk stopped Licensee‘s vehicle in the City of Williamsport for violations of the Vehicle Code,
At the hospital, Licensee declined to participate in a drug recognition evaluation (DRE). Trooper Kirk read Licensee the implied consent warnings in DOT‘s DL-26 form verbatim and asked Licensee to consent to withdrawal of a blood sample for chemiсal testing in accord with
By letter dated January 12, 2016, DOT notified Licensee that his driving privilege would be suspended for a period of 18 months as a result of his chemical test refusal. Licensee timely appealed the notice of suspension. At a hearing, DOT submitted Licensee‘s driving record, which included a certified record of an earlier DUI-controlled substance conviction in 2012. See Tr. Ct. Hr‘g, 8/23/16, Ex. C-1. In addition, Trooper Kirk testified regarding the particular circumstances of his stop of Licensee‘s vehicle and Licensee‘s refusal of the trooper‘s request for a blood test.
In response, Licensee presented no evidence, but asked to submit a brief regarding the effect оf the U.S. Supreme Court‘s decision in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016), on the case. In Birchfield, the Supreme Court held that a state cannot criminally penalize a motorist for refusing to submit to a warrantless request for a blood test after being arrested for suspicion of DUI. The trial court granted Licensee‘s request and set up a briefing schedule for the parties.
II. Discussion
A. Argument
Licensee contends that in light of the holding in Birchfield, Pennsylvania‘s Implied Consent Law violates the
In addition, Licensee argues the language in Birchfield stating its holding does not apply to implied consent laws merely imposing civil penalties is obiter dicta. Therefore, because such civil penalties were not at issue in Birchfield, Licensee asserts this language is not binding precedent.
Licensee further contends the Implied Consent Law violates the unconstitutional conditions doctrine by requiring a motorist to surrender his constitutional right to refuse a warrantless sеizure of his blood in order to operate a motor vehicle on the highways of Pennsylvania. In support of his position, Licensee cites: Koontz v. St. Johns River Water Management District, ___ U.S. ___, 133 S.Ct. 2586 (2013) (unconstitutional conditions doctrine vindicates the Constitution‘s enumerated rights by preventing governments
Summarizing, Licensee asserts it is clear that DOT penalized him under the Implied Consent Law by suspending his driving privilege because he refused to submit to a warrantless request for a blood test. In accord with the unconstitutional conditions doctrine, Licensee requests that we find DOT‘s suspension of his driving privilеge, based on his refusal of a warrantless request for a blood test, to be a violation of his constitutional rights against unreasonable searches and seizures.
B. Analysis
Initially, we note that license suspensions, unlike the DUI proceeding, are civil, not criminal, proceedings. See Dep‘t of Transp., Bureau of Traffic Safety v. O‘Connell, 555 A.2d 873 (Pa. 1989); Bashore v. Dep‘t of Transp., Bureau of Driver Licensing, 27 A.3d 272 (Pa. Cmwlth. 2011) (a licensee suspension stemming from a refusal to submit to chemical testing is an administrative proceeding seрarate from the criminal DUI proceeding).
Here, Licensee seeks to extend the scope of the holding in Birchfield, that a state may not impose criminal penalties on the refusal to submit to a warrantless blood test. Recently, this Court determined that Birchfield does not apply to civil license suspensions under Pennsylvania‘s Implied Consent Law for refusing to submit to a warrantless request for a blood sample for chemical testing following a DUI arrest. Boseman v. Dep‘t of Transp., Bureau of Driver Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017), appeal denied, ___ A.3d ___ (Pa., No. 210 MAL 2017, filed August 22, 2017).
Nevertheless, Licensee asserts that civil penalties were not at issue in Birchfield, wherein the Supreme Court recognized that the petitioners did not question the constitutionality of such statutes. Therefore Licensee argues Birchfield is not binding precedent as to the constitutional validity of implied consent laws that impose civil penalties. We disagree. In particular, the Supreme Court observed: Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Birchfield, ___ U.S. at ___, 136 S.Ct. at 2185 (citing Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013) and South Dakota v. Neville, 459 U.S. 553 (1983)). Moreover, the Birchfield Court instructed, nothing we say
Turning to recent Pennsylvania case law, we believe our Supreme Court‘s discussion in Commonwealth v. Myers, ___ A.3d ___ (Pa., No. 7 EAP 2016, filed July 19, 2017), 2017 WL 3045867, of a motorist‘s rights under the Implied Consent Law to refuse a warrantless blood test, is helpful herе. In Myers, the Court rejected the Commonwealth‘s argument that the Implied Consent Law constitutes a valid exception to the warrant requirement of the
Notably, the Supreme Court declined to address the issue of whether the civil penalties in the Implied Consent Law render the statute invalid under Birchfield. In particular, the Court noted:
In a future case, Birchfield may impact the constitutional validity of certain provisiоns of Pennsylvania‘s implied consent scheme. But the instant case presents no facial constitutional challenge to any statutory provision. Accordingly, we do not consider the effect of the Birchfield decision upon our statutes. Rather, we consider Birchfield only as it relates to our conclusion that, in the absence of actual, voluntary consent, statutorily implied consent does not dispense with the need for police to obtain a warrant before conducting a chemical test of a DUI arrestee‘s blood.
Myers, slip op. at 30, ___ A.3d at ___, 2017 WL 3045867 at *13.
However, in Boseman this Court determined that the rule in Birchfield, that a DUI arrestee may not be criminally prosecuted for refusing a request for a warrantless blood test, does not apply to civil license suspensions. As discussed above, a license suspension stemming from a refusal to submit to chemical testing is a separate civil proceeding from a criminal DUI proceeding arising out of the same incident. Bashore. It is not a crime to refuse chemical testing under the Implied Consent Law. Boseman.
By its own language, the Birchfield Court unequivocally stated that nothing we say here should be read to cast doubt on the constitutionality of state implied consent laws imposing civil penalties and evidentiary consequences for refusing a blood test. Birchfield, ___ U.S. at ___, 136 S.Ct. at 2185 (emphasis added). Contrary to Licensee‘s characterization of this language as obiter dicta, we believe the U.S. Supreme Court clearly indicated nothing in Birchfield questions the constitutionality of state implied consent laws imposing only civil sanctions. To that end, the Court stated: It is another matter, however, for a State to not only insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. Id. (emphasis added). Thеrefore, the Court concluded that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense. Birchfield, ___ U.S. at ___, 136 S.Ct. at 2186 (emphasis added).
Given the Birchfield Court‘s explicit limitation on its holding to implied consent
Further, we also reject Licensee‘s contention that Pennsylvania‘s Implied Consent Law violates the unconstitutional conditions doctrine by conditioning a person‘s driver‘s license on the implied consent to submit to a warrantless blood test in violation of his Fourth Amendment rights against unlawful searches and seizures. It is well settled in Pennsylvania that driving is a privilege, not a property right. Plowman v. Dep‘t of Transp., Bureau of Driver Licensing, 635 A.2d 124 (Pa. 1993); Alexander v. Dep‘t of Transp., Bureau of Driver Licensing, 880 A.2d 552 (Pa. Cmwlth. 2005). To obtain the benefit of such a privilege, a driver must abide by the laws of the Commonwealth relating to the privilege. Alexander. In Department of Transportation, Bureau of Driver Licensing v. Scott, 684 A.2d 539, 544 (Pa. 1996), our Supreme Court stated:
Driving is a civil privilege conferred on state residents who meet the necessary qualifications.
75 Pa. C.S. §1501 . Under the terms of the Implied Consent Law, one of the necessary qualifications to continuing to hold that privilege is that a motorist must submit to chemical sobriety testing when requested to do so, in accordance with the prerequisites of the Implied Consent Law, by an authorized law enforcement officer. The obligation to submit to testing is related specifically to the motorist‘s continued enjоyment of his operator‘s license.
When a licensee refuses to submit to chemical testing, DOT is statutorily required to impose a civil license suspension.
Regardless, Licensee contends the Implied Consent Law imposes an unconstitutional condition upon his driving privilege by rеquiring that he submit to a warrantless request for a blood test under pain of a license suspension. We disagree. In order to uphold a license suspension, DOT must establish: (1) that the licensee was arrested for DUI by a police officer who had reasonable grounds to believe the licensee was operating a vehicle while under the influence of alcohol or a controlled substance, (2) was asked to submit to a chemical test, (3) refused to do so, and (4) was warned that a refusal would result in a license suspension. Regula v. Dep‘t of Transp., Bureau of Driver Licensing, 146 A.3d 836 (Pa. Cmwlth. 2016). An officer has reasonable grounds to believe an individual was operating while under the influence if a reasonable person in the position of a police officer, viewing the facts and circumstances as they appeared to thе officer at the time, could conclude the individual operated his vehicle while under the influence of alcohol or a controlled substance. Id.
The standard of reasonable grounds to support a license suspension is akin to the reasonable suspicion standard of the Fourth Amendment. Id. (citing Terry v. Ohio, 392 U.S. 1 (1968)). The basis for the exclusionary rule in Fourth Amendment situations is to deter police officiаls from engaging in improper conduct for the purpose of obtaining criminal convictions. Id. (citing Terry; Mapp v. Ohio, 367 U.S. 643 (1961)). As discussed above, license suspensions are
The Birchfield Court noted that efforts to combat drunk driving across the nation, including implied consent laws, have been remarkably successful. All 50 states have adopted implied consent lаws that require motorists, as a condition of driving within the state, to consent to blood alcohol testing following an arrest for suspicion of DUI. Birchfield (citing McNeely). Suspension or revocation of the motorist‘s driver‘s license remains the standard legal consequence for refusal. Id. Therefore, because a license suspension under Pennsylvania‘s Implied Consent Law does not involve criminal penalties аnd thus does not implicate Fourth Amendment rights, a warrantless request for a blood test under the Implied Consent Law, based upon a reasonable suspicion of DUI, does not violate the Fourth Amendment or the unconstitutional conditions doctrine. Birchfield; Boseman; Regula.
Moreover, none of the U.S. Supreme Court cases Licensee cites support his contention that the Implied Consent Law places an unconstitutional condition on his driving privilege. As we noted in Delchester Developers, L.P. v. Zoning Hearing Board, 161 A.3d 1081 (Pa. Cmwlth. 2017), unconstitutional conditions cases generally arise in the context of land development or zoning approval process and involve a request that a developer dedicate or turn over property to the municipality, or something similar, in order to obtain a permit. This results in a taking without just compensation. See, e.g., Koontz (Flоrida water management district may not require landowner to forfeit Fifth Amendment right to just compensation for taking by requiring landowner to fund offsite mitigation projects lacking a proper nexus and proportionality to the impacts of the proposed development).
In addition, Camara is distinguishable because it involved the imposition of a criminal penalty upon tenants who refused warrantless seаrches of their leasehold by municipal inspectors. The Court determined the municipal ordinance authorizing such inspections violated the tenants’ Fourth Amendment rights. Likewise, Frost, a 1926 case wherein the U.S. Supreme Court held invalid a California statute conditioning a private carrier‘s access to its public highways upon the carrier‘s agreement to obtain a certificate of cоnvenience and assume the duties and burdens of a common carrier, is of little help in the present case.
The touchstone of Fourth Amendment analysis is reasonableness. Birchfield. Here, Pennsylvania‘s Implied Consent Law subjects a Pennsylvania resident seeking a driver‘s license to the reasonable condition of an implied consent to chemical testing under pain of civil license suspension following a DUI arrest. In accord with the Commonwealth‘s legitimate objective of combatting drunk driving, it may reasonably condition continuation of an operator‘s driving privilege upon the requirement to submit to a warrantless blood test following an arrest for DUI under pain of a civil license suspension. Birchfield; Boseman. The purpose of the exclusionary rule for Fourth Amendment violations is to deter pоlice officials from engaging in improper conduct for the purpose of obtaining criminal convictions. Terry, Mapp; Regula. The Implied Consent Law does not authorize police officers to seize a person‘s blood without permission; instead, it imposes an ultimatum upon the
III. Conclusion
For the above reasons, we discern no error in the trial court‘s order denying Licensee‘s statutory appeal of his civil license suspension. Accordingly, we affirm. Further, we grant DOT‘s request to reinstate the 18-month suspension of Licensee‘s operating privilege under
ROBERT SIMPSON, Judge
Anthony Marchese, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
No. 1996 C.D. 2016
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ORDER
AND NOW, this 13th day of September, 2017, the order of the Court of Common Pleas of Lycoming County is AFFIRMED. Further, the Department of Transportation, Bureau of Driver Licensing, is hereby directed to REINSTATE the 18-month suspension of Anthony Marchese‘s operating privilege under
ROBERT SIMPSON, Judge