Julie NEGOVAN, Appellant v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING
No. 200 C.D. 2017
Commonwealth Court of Pennsylvania.
October 24, 2017
172 A.3d 733
Submitted on Briefs August 18, 2017
NOW, October 24, 2017, the March 8, 2017 Order of the Court of Common Pleas of Delaware County is AFFIRMED.
Julie Negovan, pro se.
Terrance M. Edwards, Senior Counsel, Harrisburg, for appellee.
BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY JUDGE COVEY
On June 29, 2016, at approximately 11:10 p.m., Upper Southampton Township Police Officer Francis Fazzio (Officer Fazzio) was operating an unmarked patrol vehicle when he observed Licensee, who was driving a black Chevy Camaro, stopped at a red light in the left lane of Street Road at the intersection of Second Street Pike in Upper Southampton Township, Bucks County. Officer Fazzio followed Licensee, estimated that her car reached speeds in excess of 60 miles per hour (MPH) in a posted 45 MPH zone, and witnessed her vehicle swerve into the center turn lane three times while she travelled westbound at that location. After effectuating a traffic stop, Officer Fazzio noticed that Licensee had glassy, bloodshot eyes, and that there was a strong smell of alcohol coming from Licensee‘s vehicle. Licensee informed Officer Fazzio that she was coming from the Philadelphia Union League, and she had consumed a couple glasses of wine. Officer Fazzio then asked Licensee to perform three field sobriety tests, including the horizontal gaze nystagmus test, the walk and turn (or nine-step heel to toe) test, and the one-leg stand test. Licensee did not touch her heel to her toe and exhibited difficulty maintaining her balance during the tests. As a result, Officer Fazzio placed Licensee under arrest for driving under the influence of alcohol (DUI).1
Officer Fazzio transported Licensee to St. Mary Medical Center, placed her in a room designated for blood draws, and read her the implied consent warnings (Form DL-26).2 Officer Fazzio also handed Licensee the Form DL-26 to read. Those portions of the implied consent warnings which related to the enhanced criminal penalties for not submitting to a blood test were redacted from the Form DL-26 as a result of the United States Supreme Court‘s ruling in Birchfield v. North Dakota, — U.S. —, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), which was decided six
On July 14, 2016, the Department notified Licensee that her driver‘s license would be suspended for 12 months, effective August 18, 2016, pursuant to
Licensee argues that the trial court erred in dismissing her appeal because
At the outset, Licensee received a 2-month license suspension as part of her voluntary participation in the DUI accelerated rehabilitative disposition (ARD)5 program. Licensee believes that the Department was not authorized to issue her a 12-month civil license suspension because Officer Fazzio admittedly did not read her the enhanced DUI criminal penalties portion of the implied consent warnings. Apparently, Licensee believes her 2-month license suspension was a “penalt[y] provided in [S]ection 3804(c) [of the Vehicle Code] (relating to penalties)[,]”
Notwithstanding, this Court has held that there is no constitutional requirement for a police officer to provide any implied consent warnings to a driver arrested for DUI. See Dep‘t of Transp., Bureau of Traffic Safety v. Sinwell, 68 Pa.Cmwlth. 605, 450 A.2d 235 (1982); Commonwealth v. Williams, 19 Pa.Cmwlth. 363, 338 A.2d 742 (1975); Commonwealth v. Abraham, 7 Pa.Cmwlth. 535, 300 A.2d 831 (1973). Accordingly, the only warnings that must be provided are those mandated by statute, and those required by the Supreme Court in Department of Transportation, Bureau of Traffic Safety v. O‘Connell, 521 Pa. 242, 555 A.2d 873 (1989).7 See Sheakley v. Dep‘t of Transp., 99 Pa.Cmwlth. 328, 513 A.2d 551, 553 (1986), appeal denied, 515 Pa. 586, 527 A.2d 546 (1987) (“We have also held that a motorist has no constitutional right to a prior warning of the consequences of a refusal to submit to a breathalyzer test and that the duty to warn is entirely statutory.“).
With respect to the redacted portions of the Form DL-26 presented and read to Licensee,
(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:
(1) in violation of [S]ection 1543(b)(1.1) [of the Vehicle Code] (relating to driving while operating privilege is suspended or revoked), [Section] 3802 [of the Vehicle Code, 75 Pa.C.S. § 3802,] (relating to driving under influence of alcohol or controlled substance) ....
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of [S]ection 3802 [of the Vehicle Code] 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 [D]epartment shall suspend the operating privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months. ....
(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
(ii) if the person refuses to submit to chemical breath testing, upon conviction or plea for violating [S]ection 3802(a)(1) [of the Vehicle Code, 75 Pa. C.S. § 3802(a)(1)], the person will be subject to the penalties provided in [S]ection 3804(c) [of the Vehicle Code, 75 Pa.C.S. § 3804(c)] (relating to [DUI] penalties).
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] (blood or breath. Officer chooses the chemical test).
3. If you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of [DUI], you [sic] will be suspended for up to 18 months.8
4. You have no right to speak with 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 chemical testing, you will have refused the test.
Commonwealth Ex. C-2 (emphasis added).
However, on June 23, 2016, the United States Supreme Court rendered its decision in Birchfield, wherein, the Court held inter alia that a motorist may not be criminally punished for refusing to submit to a blood test based on her legally-implied consent to so submit. Id. The Birchfield Court explained that there was a difference between implied consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, and a state insisting upon an intrusive blood test and then imposing criminal penalties on a refusal to submit to the blood test. Id. Thus, “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. Consequently, the enhanced criminal penalties for failure to submit to chemical testing are unconstitutional.
Importantly, the Birchfield Court clarified:
It is well established that a search is reasonable when the subject consents,
and that sometimes consent to a search need not be express but may be fairly inferred from context[.] 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. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.
Birchfield, — U.S. at —, 136 S.Ct. at 2185 (citations omitted).
In the instant case, in accordance with Birchfield, Officer Fazzio specifically omitted the inaccurate warnings from the Form DL-26 when he recited and presented it to Licensee. The redacted warnings referred to the enhanced DUI criminal penalties provided in
For all of the above reasons, the trial court‘s order is affirmed.
AND NOW, this 24th day of October, 2017, the Bucks County Common Pleas Court‘s January 19, 2017 order is affirmed.
ANNE E. COVEY
JUDGE