Com. v. Ennels, J.

Superior Court of Pennsylvania

Com. v. Ennels, J.

DecidedJuly 11, 2017

DocketCom. v. Ennels, J. No. 1895 MDA 2016

StatusPublished

This text of Com. v. Ennels, J. (Com. v. Ennels, J.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Ennels, J., (Pa. Ct. App. 2017).

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Opinion

J-A11029-17

2017 PA Super 217

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JOHN LAMONTE ENNELS : No. 1895 MDA 2016

Appeal from the Suppression Order October 19, 2016 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002605-2016

BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

DISSENTING OPINION BY STEVENS, P.J.E.: FILED JULY 11, 2017

While the United States Supreme Court has made it more difficult as a

practical matter for law enforcement officers to protect the public from

motorists who are operating a vehicle under the influence of alcohol, 1 we do

not have to do so under the specific facts of the case before us.

____________________________________________

* Former Justice specially assigned to the Superior Court. 1 In Birchfield v. North Dakota, ___ U.S. ____, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), the United States Supreme Court held that:

(1) The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving; (2) The Fourth Amendment does not permit warrantless blood tests incident to arrests for drunk driving; and (3) Motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense, abrogating State v. Smith, 849 N.W.2d 599. Id. J-A11029-17

Here, there is no question police officers had probable cause to arrest

Appellee Ennels (“Appellee”) for driving under the influence of a controlled

substance, marijuana.2 Appellee was driving a car involved in a traffic

accident and was attempting to flee the scene when officers stopped him.

The “overwhelming smell of marijuana emanating from the vehicle” led to

the arrest of Appellee for DUI.

Appellee was asked to submit to a blood test and signed the DL-26

Form in the presence of one of the police officers.3 Significantly, as stated

2 In the Affidavit of Probable Cause, Officer Marcos Rodriguez stated the following:

As I walked up to the driver’s side of the vehicle, the driver, later identified as [Appellee], opened up the front door. I ordered him to stay inside the vehicle, and as I walked up closer I got an overwhelming odor of marijuana coming from the inside of the vehicle. I asked [Appellee] if he had been smoking or drinking, to which he responded no to both. I ordered [Appellee] out of the vehicle and detained him. Due to the smell of marijuana coming from the vehicle, myself and OFF. HERNANDEZ conducted a search of the vehicle. OFF. HERNANDEZ found a partially smoked blunt of suspected marijuana, or a “roach[,]” sitting within the open center console of the vehicle. The suspected marijuana blunt was recovered at approx. 1940 HOURS.

See Affidavit of Probable Cause, filed 4/1/16, at ¶¶ 2-3. 3 Among the provisions set forth in the form was the following:

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 (Footnote Continued Next Page)

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by the trial court in its Finding of Facts, Appellee “did not express any

hesitation or concern with the DL-26 warnings.” See Findings of Fact and

Conclusions of Law in Disposition of [Appellee’s] Omnibus Pretrial Motion,

10/19/16, at 3.

Because I believe that under the totality of the circumstances Appellee

provided valid consent to the warrantless blood test which was not tainted

by an inaccurate warning of the consequences of refusal, I dissent from the

Majority’s conclusion to uphold the granting of Appellee’s motion to suppress

the results of the blood test in this case.

There is no evidence herein that if Appellee were convicted of DUI his

criminal punishment would be enhanced by failure to sign the Form. In fact,

if he failed to sign the Form he could not be given any greater penalty than if

he signed it, which Appellee did without hesitation. For example, the DL-26

Form revealed that the enhanced criminal penalties one may face for

refusing to submit to a blood test are identical to those he or she faces if _______________________ (Footnote Continued)

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.

See DL-26 FORM ¶ 3.

-3- J-A11029-17

convicted of Section 3804 (c) of the Vehicle Code relating to “incapacity;

highest blood alcohol; controlled substances.” Thus, there is no further

penalty where one is convicted of DUI-controlled substance regardless of

whether that individual previously had consented to a blood test. The

Majority actually recognizes this fact in Footnote 7 of the Majority Opinion.

In Birchfield, supra, the United States Supreme Court highlighted

the significant government interest in preserving highway safety. Id. at

____, 136 S.Ct. at 2164, 195 L.Ed.2d at ____. As such, a finding that

Appellee’s consent was voluntary, where he would not have been subject to

harsher criminal penalties were he to have refused to sign the DL-26 Form

and later convicted of a drug-related DUI, is in line with the reasoning and

promotes the spirit of Birchfield. In addition, this conclusion does not run

afoul of this Court’s recent decisions in Commonwealth v. Evans, 153 A.3d

323 (Pa.Super. 2016) and Commonwealth v. Giron, 155 A.3d 635

(Pa.Super. 2017).

In Evans, the defendant was arrested and charged with DUI highest

rate of alcohol, third offense, and DUI general impairment, third offense. In

finding the Birchfield case to be controlling, the Evans Court stated that:

with respect to an individual who refuses a blood or breath test and who is then convicted of Section 3802(a)(1) (DUI, general impairment), 75 Pa.C.S.A. § 3803 also grades the conviction at the same level as an individual who violates Section 3802(c), which is DUI, highest rate of alcohol. For individuals such as Appellant, who have “one or more prior offenses,” 75 Pa.C.S.A. § 3803(b)(4) grades a conviction for DUI, highest rate of alcohol and DUI, general impairment (when coupled with a refusal to

-4- J-A11029-17

submit to a blood or breath test) as a misdemeanor of the first degree. 75 Pa.C.S.A. § 3803(b)(4). This is a higher grade of offense than “[a]n individual who violates section 3802(a)[, DUI, general impairment] and has more than one prior offense”— which Section 3803(a)(2) grades as a second-degree misdemeanor. 75 Pa.C.S.A. § 3803(a)(2). Thus, even though Pennsylvania's implied consent law does not make the refusal to submit to a blood test a crime in and of itself, the law undoubtedly “impose[s] criminal penalties on the refusal to submit to such a test.” Birchfield, 136 S.Ct. at 2185–2186.

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