Patane v. Commonwealth
| Decision Date | 09 August 2018 |
| Docket Number | No. 973 C.D. 2017,973 C.D. 2017 |
| Parties | Robert Wayne PATANE, Appellant v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING |
| Court | Pennsylvania Commonwealth Court |
William J. Brennan, King of Prussia, for appellant.
Philip M. Bricknell, Acting Deputy Chief Counsel, Harrisburg, for appellee.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge
OPINION BY JUDGE COHN JUBELIRER
Robert Wayne Patane (Licensee) appeals from a June 27, 2017 Order of the Court of Common Pleas of Delaware County (common pleas). By order dated March 28, 2017, common pleas denied Licensee's appeal from a one-year suspension of his operating privilege imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT), under Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i), commonly referred to as the Implied Consent Law.1 Subsequently, common pleas granted Licensee's Motion for Reconsideration of the March 28, 2017 Order to the extent of holding a hearing thereon, and then effectively confirmed its March 28, 2017 Order in its June 27, 2017 Order.2 On appeal, Licensee argues that he did not knowingly and consciously refuse a chemical test of his blood and was, therefore, deprived of procedural due process of law. He claims this is because the Pennsylvania State Police Trooper who stopped him provided him with "partially incorrect" information, telling him that he would be subject to enhanced criminal penalties if he refused the blood test and was convicted of driving under the influence of alcohol (DUI). (Licensee's Brief (Br.) at 8.) It was shortly after Licensee's arrest that the United States Supreme Court decided Birchfield v. North Dakota , 579 U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), which held that a state may not impose criminal penalties on a motorist for refusing to submit to a chemical test of his blood requested pursuant to an implied consent law. Licensee argues that, had he been correctly informed that only his operating privilege would be suspended if he refused a chemical test of his blood, consistent with Birchfield , then he would have submitted to the test. We conclude that Licensee knowingly and consciously refused chemical testing, and he was not deprived of procedural due process. The Pennsylvania State Police Trooper provided Licensee with a warning that was accurate at the time it was given. While the portion of the warning about enhanced criminal penalties was retroactively rendered inaccurate following Birchfield , Licensee's refusal at the time was still knowing and conscious and he was not deprived of procedural due process by the suspension of his operating privilege. This is because Licensee knew, as the Pennsylvania State Police Trooper had conveyed it to him, that if he refused chemical testing he would be in violation of the law and he would be penalized for that violation with the suspension of his operating privilege. Therefore, common pleas properly reinstated the suspension of Licensee's operating privilege.
DOT informed Licensee that his operating privilege was suspended for one year as a result of his failure to submit to chemical testing in violation of Section 1547(b)(1)(i) of the Vehicle Code. On May 19, 2016, Licensee appealed to common pleas pursuant to Section 1550(a) of the Vehicle Code, 75 Pa. C.S. § 1550(a).3
At the hearing, testimony was presented that on April 13, 2016, at 8:44 p.m., Pennsylvania State Police Trooper Erjon Mollaj (Trooper) was traveling southbound along Route 476 in Radnor Township, Delaware County, when he observed Licensee's vehicle traveling at a high rate of speed. During the ensuing traffic stop, while Trooper questioned Licensee, Trooper detected an odor of alcohol emanating from Licensee's breath and the inside of Licensee's vehicle. Trooper testified that Licensee admitted to him that "he had a few drinks." (Reproduced Record (R.R.) at 35a.) Licensee agreed, at Trooper's request, to submit to a series of field sobriety tests, which he did not successfully complete. Trooper placed Licensee under arrest for DUI and transported him to a hospital for chemical testing of his blood. At the hospital, Trooper read verbatim to Licensee DOT Form DL-26, which stated, in relevant part, as follows:
(Id. at 90a (emphasis added).) Trooper explained the warnings to Licensee twice. Licensee signed the form , acknowledging that he understood the warnings, but stated, "I'm not taking the test ." (Id. at 39a (emphasis added).)
Licensee testified that when Trooper warned him that if he refused chemical testing he could be imprisoned for five years and fined $10,000, Licensee "froze, completely." (Id. at 67a.) Licensee further testified that he had "never had anything criminal in [his] life before this" and he "was shell-shocked." (Id. ) Licensee testified that if he had known that there were only civil penalties for refusing chemical testing, and not also criminal penalties if he was subsequently convicted, Licensee would have submitted to the blood test.
At the conclusion of the evidence and in a brief, Licensee argued that following his arrest, the United States Supreme Court issued Birchfield , which precludes a state from imposing a criminal penalty for refusing to submit to a blood test required under an implied consent law. Thus, Licensee continued, when Trooper warned Licensee that he would be subject to criminal penalties if he refused a blood test, Licensee was provided with incorrect information. (R.R. at 76a; Record (R.) Item 7, Amended Memorandum of Law at 2.) Licensee noted that just days after the Birchfield decision, DOT amended Form DL-26 and created DOT Form DL-26B, which removed any mention of enhanced criminal penalties for refusing a blood test.5 Since Licensee was informed that he was facing a criminal penalty, he believed that he should neither speak nor consent to a blood test. Licensee contended that his confusion was directly attributable to the incorrect information Trooper provided him. Had Licensee been correctly informed that if he refused the blood test, he was facing only a civil penalty of the loss of his operating privilege, Licensee, as he testified, would have submitted to the blood test.
Common pleas denied Licensee's appeal and reinstated DOT's suspension of Licensee's operating privilege. In its decision, common pleas rejected Licensee's reliance on Birchfield , concluding that it "does not apply to civil license suspension proceedings." (Common Pleas Opinion (Op.) ¶ 25.)
Licensee then filed a Motion for Reconsideration, arguing that common pleas "did not address the central question" Licensee raised, "which was that [Licensee] was denied due process because [Trooper] provided [Licensee] with incorrect information[.]" (R. Item 7, Motion for Reconsideration at 1-2.)
Common pleas granted the Motion for Reconsideration to the extent of holding a hearing thereon, but then denied the Motion for Reconsideration, which, in this instance, operated as confirmation of common pleas' prior Order denying Licensee's appeal. Following Licensee's filing of a Concise Statement of Errors Complained of on Appeal, common pleas issued its opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a). Common pleas noted that in Birchfield , the Court "did not question the constitutionality of the implied consent laws that impose only civil penalties." (Common Pleas 1925(a) Op. (1925(a) Op.) at 9, Aug. 16, 2017.) Further, citing Boseman v. Department of Transportation, Bureau of Driver Licensing , 157 A.3d 10, 20 (Pa. Cmwlth.), petition for allowance of appeal denied , 170 A.3d 996 (Pa. 2017), common pleas noted that this Court "emphasized that a license suspension stemming from a refusal to submit to chemical testing [of blood] is a separate administrative proceeding from a criminal DUI proceeding arising out of the same incident." (1925(a) Op. at 9.) Common pleas concluded that Birchfield and Boseman controlled. ( Id. at 12.) Based on Birchfield and Boseman , common pleas held that Licensee was not denied due process. ( Id. at 13.) Licensee was not denied due process because: Licensee was advised of the civil penalty of the suspension of his operating privilege for refusing a blood test; Licensee knowingly and voluntarily decided not to submit to a blood test; and the civil penalty occurs in the context of a "separate administrative proceeding from a criminal DUI proceeding arising out of the same incident." ( Id. at 12-13 (emphasis in original) (citing Boseman , 157 A.3d at 20 ).) Accordingly, "the reading of the enhanced criminal penalties did not deny [Licensee] procedural due process in the separate civil administrative proceeding." ( Id. at 13.)
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