MEMORANDUM OPINION BY JUDGE PATRICIA A. McCULLOUGH.
Jesse John Ofsharick (Licensee) appeals from the July 17, 2017 order of the Court of Common Pleas of Montgomery County (trial court) denying his 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.
The underlying facts of this case are not in dispute. On December 9, 2016, Officer Stephen Nick of the Upper Dublin Police Department responded to a 9-1-1 call from a woman who stated that her boyfriend, Licensee, had struck her in the face and fled in their car. The woman provided Officer Nick with a description of the car. Shortly thereafter, police officers from a neighboring municipality, Horsham Township, had received a call concerning an intoxicated individual who had been driving a car that matched the description given to Officer Nick. Officer Nick later learned that Licensee had driven to a nearby Wawa, where Licensee was placed under arrest by officers from Horsham Township for public drunkenness and disorderly conduct. Officer Nick proceeded to the Wawa and found Licensee in a Horsham Township police car. He described Licensee as extremely agitated and uncooperative, slurring his speech, and yelling insults. (Trial court op. at 1-2.)
Officer Nick, believing that Licensee was intoxicated, advised Licensee that he was also under arrest for driving under the influence and read him the DL-26B form warnings.
By notice mailed December 22, 2016, DOT advised Licensee that his operating privilege was being suspended for a period of one year under section 1547(b)(1)(i) of the Vehicle Code as a result of his failure to submit to chemical testing. Licensee filed a statutory appeal with the trial court. The trial court conducted a hearing on July 17, 2017.
Officer Nick noted that officers in Horsham Township had received a call regarding Licensee only six minutes after he responded to the domestic assault call by Licensee's girlfriend. (Reproduced Record (R.R.) at 13a.) He also noted that the Wawa was only approximately three miles from the scene of the domestic assault call. Id. After speaking with the other 9-1-1 caller that initiated the response of police officers in Horsham Township and his supervisors, it was decided that Officer Nick would take custody of Licensee and transport him back to the Upper Dublin police station. (R.R. at 17a-18a.) Officer Nick then identified the DL-26B form that he read to Licensee upon his arrest at the neighboring Wawa, which requested that Licensee submit to chemical testing. However, Officer Nick testified that Licensee refused to submit to testing. (R.R. at 19a.)
Licensee did not cross-examine Officer Nick or offer any other testimony or evidence. Rather, Licensee proceeded to argue that section 1547 was unconstitutional in light of the United States Supreme Court's June 23, 2016 decision in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).
The trial court took the matter under advisement and closed the hearing. By order of the same date, the trial court denied Licensee's appeal and reinstated the one-year suspension of Licensee's operating privilege. Licensee filed a notice of appeal with the trial court. By order dated September 21, 2017, the trial court granted Licensee's request for a supersedeas pending resolution by this Court.
One week later, on September 28, 2017, the trial court issued an opinion in support of its order. The trial court concluded that Officer Nick had reasonable grounds to request that Licensee submit to chemical testing, citing the statements made by Licensee's girlfriend in the domestic assault incident, the other 9-1-1 caller in Horsham Township, and the responding officers in Horsham Township. The trial court stated that such statements were properly admissible under Duffy v. Department of Transportation, Bureau of Driver Licensing, 694 A.3d 6 (Pa. Cmwlth. 1997) (holding that out of court third-party statements are admissible to establish the reasonable grounds of an investigating officer). The trial court also concluded that Licensee's actions and statements demonstrated an "unwillingness to take a blood test" and, thus, constituted a refusal. (Trial court op. at 5.) Finally, based on Boseman, the trial court concluded that Birchfield had no application to this case.
On appeal,
In order to support a suspension of Licensee's operating privilege under section 1547(b)(1) of the Vehicle Code, DOT had the burden of proving the following:
Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005). The testimony of Officer Nick satisfied DOT's burden herein.
Licensee's argument is limited to the fourth prong above. In that regard, the DL-26B form that Officer Nick read to Licensee contained the following warnings:
(R.R. at 38a.) This DL-26B form contained no warning advising Licensee that a refusal to submit to chemical testing could result in enhanced criminal penalties upon conviction of driving under the influence, as required by then-section 1547(b)(2)(ii) of the Vehicle Code. Prior to the July 2017 amendment, this section provided that "if the person refuses to submit to chemical 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)." Former 75 Pa.C.S. §1547(b)(2)(ii). The 2017 amendment inserted the term "breath" between the terms "chemical" and "testing."
Licensee argues that if the warnings provided by Officer Nick had properly advised him that he might be subject to enhanced criminal penalties if he refused the chemical testing, he may have submitted to the testing. However, Licensee concedes that this Court previously considered and rejected an identical argument in Garlick v. Department of Transportation, Bureau of Driver Licensing, 176 A.3d 1030 (Pa. Cmwlth. 2018) (en banc). Licensee requests that we overrule Garlick, which is something this panel cannot do,
In Garlick, a Pennsylvania State Police Trooper had reason to believe that the licensee had operated a motor vehicle while under the influence of alcohol. Following a field sobriety test, the licensee was asked and refused to consent to a breath test. The Trooper placed the licensee under arrest on suspicion of DUI and transported him to the police station. At the station, the Trooper requested that the licensee submit to a chemical test of his blood and read verbatim the warnings contained in the DL-26B form, the same warnings provided to Licensee in the present case. The Trooper did not warn the licensee that he would be subject to enhanced criminal penalties under section 3804(c) for refusing the chemical blood testing, despite the requirement of former section 1547(b)(2)(ii).
Following DOT's notice to the licensee of a one-year suspension of his operating privilege, the licensee appealed to the common pleas court. Before that court, the licensee argued that his operating privilege could not be suspended because the Trooper failed to warn him that he would be subject to enhanced criminal penalties for refusing the chemical blood test. The licensee further argued that police officers must comply with the mandates of former section 1547(b)(2)(ii) until such time as the General Assembly amended the statute. The common pleas court denied the licensee's appeal and reinstated his suspension. On further appeal, this Court affirmed the common pleas court's order.
In rejecting the identical argument currently before this Court as unpersuasive, we explained as follows:
Garlick, 176 A.3d at 1036-37 (emphasis added). Finally, we concluded that the "Trooper specifically and accurately warned [l]icensee about the consequences of refusing a blood test that remain following Birchfield, that is, the suspension of his license." Id. at 1037.
Similarly here, Officer Nick specifically and accurately warned Licensee of the consequences of refusing a blood test that remained following Birchfield, namely a suspension of his license. Consistent with Garlick, the fact that Officer Nick failed to advise Licensee of enhanced criminal penalties for refusing a blood test that have since been determined to be constitutionally infirm does not invalidate the one-year suspension of Licensee's operating privilege imposed by DOT under section 1547(b)(1)(i) of the Vehicle Code.
Accordingly, the trial court's order denying Licensee's appeal and reinstating his suspension is affirmed.
AND NOW, this 4
75 Pa. C.S. §1547(b)(1)(i).