PENNDOT’s REVISED IMPLIED CONSENT FORM SATISFIES BIRCHFIELD REQUIREMENTS. (Oh … and we are ALL presumed to know all relevant statutory and case law.)

The PA Superior Court recently reversed the trial court suppression of BAC results in three separate cases, holding that the use of the PennDOT’s newly-revised DL-26B Implied Consent form complies with Birchfield and, placing us all on notice that we are presumed to know the law, whether it be case law or statutory compilations.

In Commonwealth v. Lisa Gay Robinson, companion cases docketed at Nos. 1493 and 1494 MDA 2017 (May 3, 2018), the PA Superior Court held that PennDOT permissibly revised the original DL-26 form to comply with Birchfield. Accordingly, in light of that conclusion and, after considering the totality of the circumstances surrounding Robinson’s consents to the blood tests in both of her DUI cases, the Superior Court concluded that Robinson’s consent was voluntary in both cases.

In Commonwealth v. Gary Miller, 779 MDA 2017 (May 3, 2018), the PA Superior Court has held that Miller’s subjective belief – that the new DL-26 form threatened enhanced criminal punishment if he refused to consent to a blood draw – could not form the basis for the suppression of his BAC results.

In Miller, the Commonwealth appealed from the trial court’s Order granting Miller’s motion to suppress BAC test results, obtained after the reading of the newly-revised DL-26B form and without a warrant. Therein, the arresting officer explicitly informed Miller of his right to refuse a blood test and correctly warned him that refusal could lead to certain civil penalties. Miller’s failure to recognize that the officer’s warnings differed from those he received during a past DUI arrest and, his reliance on the previous police interaction, could not “weigh heavily against finding voluntary consent.” Rather, the Superior Court concluded that an incorrect subjective belief based on a failure to listen to explicit warnings from police officers is entitled to little, if any, weight when evaluating the totality of the circumstances surrounding a consent to search.

Contemporaneously with Miller, the Superior Court issued Robertson holding that defendants are presumed to know case law in addition to statutory law. Additionally, the Robertson Court rejected the argument that police have an affirmative duty to inform defendants that they do not face enhanced criminal penalties if they refuse a blood test.

Robertson was arrested twice within a month’s time and read the DL-26B form on both occassions. That form notified her she could face civil penalties for failing to consent to a blood draw. However, it did not inform her that she would be subjected to enhanced criminal penalties if she refused a blood test.

The Robertson trial court found that, notwithstanding the amended DL-26B form, courts in Pennsylvania generally presume that defendants are aware of the law. Therefore, it reasoned that, even though she was read the DL-26B form which deleted any reference to criminal penalties for the failure to submit to a blood test, she was presumed to be aware of the (unconstitutional) Motor Vehicle Code provision that, until July 20, 2017, mandated enhanced criminal penalties for those convicted of DUI who refused a blood test.

The Superior Court then noted that the trial court apparently failed to also presume that Robertson knew about the Birchfield decision and its impact on the statutory warnings that are read to individuals who are asked to consent to a blood test. In other words, the Superior Court concluded that the presumption that an individual is aware of the law includes not just statutory compilations but also judicial decisions. Thus, the trial court erred in finding that Robertson was presumed to believe she was subject to enhanced criminal penalties because of the unconstitutional provision of the Motor Vehicle Code.

Lastly, the Superior Court also rejected the trial court’s contention that the police had an affirmative duty to inform Robertson that she had a right to refuse a blood test without risking enhanced criminal penalties. Robertson’s consent to the blood draws was therefore voluntary and, accordingly, the trial court’s suppression orders reversed.

CASE LINKS:

Commonwealth v. Lisa Gay Robinson, companion cases docketed at Nos. 1493 and 1494 MDA 2017 (May 3, 2018)

Commonwealth v. Gary Miller, 779 MDA 2017 (May 3, 2018)

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