Price v. Commonwealth, 092917 PACCA, 1873 C.D. 2016

Docket Nº:1873 C.D. 2016
Opinion Judge:HONORABLE MARY HANNAH LEAVITT, PRESIDENT JUDGE
Party Name:Sandra Price v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
Judge Panel:BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge McCULLOUGH JUDGE COSGROVE JUDGE
Case Date:September 29, 2017
Court:Commonwealth Court of Pennsylvania

Sandra Price

v.

Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant

No. 1873 C.D. 2016

Commonwealth Court of Pennsylvania

September 29, 2017

OPINION NOT REPORTED

Submitted: May 5, 2017

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge

MEMORANDUM OPINION

HONORABLE MARY HANNAH LEAVITT, PRESIDENT JUDGE

The Department of Transportation, Bureau of Driver Licensing (Department) appeals an order of the Court of Common Pleas of Bucks County (trial court) sustaining the appeal of Sandra Price (Licensee) from a one-year suspension of her operating privilege under Section 1547 of the Vehicle Code (Implied Consent Law), 75 Pa. C.S. §1547.1 For the following reasons, we reverse.

On May 14, 2016, Licensee was arrested for driving under the influence of alcohol or controlled substance pursuant to Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802.2 On June 17, 2016, the Department notified Licensee that her operating privilege would be suspended for a period of one year, effective July 22, 2016. The notice explained that the suspension resulted from her refusal to submit to chemical testing following the arrest, in violation of the Implied Consent Law. 75 Pa. C.S. §1547(b).3 Licensee appealed, and the trial court held a de novo hearing on September 21, 2016.

The Department presented the testimony of Solebury Township Police officer Gary Forrester. Forrester testified that on May 14, 2016, he was on patrol when he "observed a black Audi travel southbound on Route 202, [and] make a wide right turn to go north on Street Road." Notes of Testimony, 9/21/2016, at 5 (N.T.); Reproduced Record at 18a (R.R. _). Forrester followed the vehicle and observed it "veer off to the right side of the roadway where there is no shoulder; it's just road and grass. The front tire of the vehicle was touching the grass on two separate occasions." Id.

Forrester testified that he stopped the vehicle, which was being driven by Licensee. He asked Licensee for her driver's license, and "it took approximately a minute for her to retrieve it." N.T. 6; R.R. 19a. Licensee stated that "she had a glass of wine about 6:00 pm." Id. Forrester conducted three field sobriety tests, all of which Licensee failed. Forrester also administered a preliminary breath test, which registered a blood-alcohol content of 0.203 percent.

Forrester arrested Licensee for driving under the influence. He asked her to submit to a blood test, and she agreed. Forrester took Licensee to Doylestown Hospital for testing. Once there, Licensee refused to submit to a blood test. Forrester testified that he "read the DL-26 form [to Licensee], word for word in front of the nurse and security guard. After reading the DL-26, [he] again asked [Licensee] if she was willing to submit to a blood test, and at that time she said, no." N.T. 8; R.R. 21a.

The Form DL-26 Forrester read to Licensee contained the following language: HONORABLE MARY HANNAH LEAVITT, President Judge 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 driving under the influence, you will be suspended for up to 18 months. In addition, if you refuse to submit to the chemical test, and you are convicted of violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, then, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code. These are the same penalties that would be imposed if you were convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1, 000.00, up to a maximum of five years in jail and a maximum fine of $10, 000.

R.R. 37a. On cross-examination, Forrester acknowledged that the current version of Form DL-26 no longer warns a licensee of criminal penalties for refusing to consent to chemical testing.

Licensee presented no evidence but argued that the imposition of a criminal penalty for refusal to submit to a chemical test was held unconstitutional by the U.S. Supreme Court in Birchfield v. North Dakota, _U.S. _, 136 S.Ct. 2160 (2016). Therefore, Licensee argued, the warning contained in the Form DL-26 Forrester used was "inaccurate, " and her refusal, which was made based upon the "inaccurate" warning, should be stricken. N.T. 13; R.R. 26a.

The trial court sustained Licensee's appeal. The Department appealed to this Court. In its opinion filed pursuant to Pa. R.A.P. 1925(a), the trial court concluded that, upon further consideration of the record and the case law, it had erred in sustaining Licensee's appeal based on Birchfield, which applies only to criminal proceedings. The trial court urges this Court to reverse its order and remand the matter for further proceedings.

On appeal, 4 the Department contends that the trial court erred in sustaining Licensee's appeal because Birchfield is inapplicable to a license suspension proceeding, which is a civil, not criminal, proceeding. Licensee was warned that her operating privilege would be suspended but nevertheless refused to submit to a blood test; therefore, the suspension is proper under 75 Pa. C.S. §1547. Licensee counters that Sections 3803 and 3804 of the Vehicle Code, 75 Pa. C.S. §§3803, 3804, are unconstitutional insofar as...

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