CUMBERLAND LAW JOURNAL

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1 CUMBERLAND LAW JOURNAL LXVI No. 41 Carlisle, PA, October 13, COMMONWEALTH v. JUSTIN DANIEL KUZMA, CUMBERLAND CO., COMMON PLEAS, No. CP-21-CR CRIMINAL. Criminal Law Motion to Suppress Traffic Stop Odor of Alcohol Slurred Speech Standard Field Sobriety Test Signed New DL-26 and Provided Blood Sample North Dakota v. Birchfield, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016) Implied Consent Motion Denied. CUMBERLAND LAW JOURNAL (USPS ) Published every Friday by CUMBERLAND COUNTY BAR ASSOCIATION Editor Lisa Marie Coyne, Esq. Cumberland Law Journal Telephone: (717) South Bedford St. FAX (717) Carlisle, PA Copyright 2017, Cumberland County Bar Association Carlisle, Pennsylvania Containing reports of cases decided by the various Courts of Cumberland County and selected cases from other counties. Designated by the Court of Common Pleas as the official legal publication of Cumberland County and the legal newspaper for the publication of legal notices. Legal advertisements must be received by Friday Noon. All legal advertising must be paid in advance. Subscription $35.00 per year. Please note: All legal notices must be submitted in typewritten form. Neither the Law Journal nor the printer will assume any responsibility to edit, make spelling corrections, eliminate errors in grammar or make any changes in content. Periodical postage paid at Carlisle, PA and additional offices. POSTMASTER: Send change of address to: Cumberland Law Journal, c/o Clare Printing, 206 S. Keystone Avenue, Sayre, PA

2 Commonwealth v. Kuzma Commonwealth v. Kuzma 243 COMMONWEALTH v. JUSTIN DANIEL KUZMA, CUM- BERLAND CO., COMMON PLEAS, No. CP-21- CR CRIMINAL. Criminal Law Motion to Suppress Traffic Stop Odor of Alcohol Slurred Speech Standard Field Sobriety Test Signed New DL-26 and Provided Blood Sample North Dakota v. Birchfield, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016) Implied Consent Motion Denied. 1. The United States Supreme Court has determined that the Fourth Amendment to the United States Constitution permits warrantless breath tests incident to arrests for drunk driving. 2. As a result of Birchfield, Pennsylvania developed the new DL-26 form which eliminated all mention of increased penalties as a result of a refusal and instead states that if a chemical test is refused, operating privileges will be suspended. 3. Under Pennsylvania s implied consent law in effect at the time of Defendant s arrest, his consent was presumed under 75 Pa. C.S. 1574(a) and the recitation of the new DL-26 form was merely an extra precaution to ensure the voluntariness of Defendant s consent. 4. Defendant s consent was knowingly, intelligently and voluntarily given when he was informed that the chemical test was a request and that he could refuse, when he was cooperative in giving his blood and throughout his entire interaction with the police officer. JAIME KEATING, ESQUIRE, FIRST ASSISTANT DISTRICT ATTORNEY, for Commonwealth. MICHAEL HALKIAS, ESQUIRE, CHIEF PUBLIC DEFENDER, for Defendant. IN RE: OMNIBUS PRETRIAL MOTION Before BREWBAKER, J. OPINION AND ORDER OF COURT BREWBAKER, J., September 5, 2017: Before the Court is Defendant, Justin Kuzma s Motion to Suppress. Following a hearing on July 24, 2017, the matter was taken under advisement and the parties were permitted a period of time to file briefs. This Opinion is filed in support of the Court s Order denying the Motion to Suppress. FACTS On September 27, 2016, Trooper Ryan P. Ivancik was on patrol, in uniform and travelling in a marked patrol car. Trooper Ivancik noticed a gray Chevy Cruze, with license plate KBW1687 make a left-hand turn from East Louther Street in Carlisle, Cumberland County, onto Alexander Avenue, without using a turn signal. When Trooper Ivancik stopped the vehicle for the traffic violation, he immediately noticed the odor of an alcoholic beverage coming from the interior of the vehicle

3 244 Commonwealth v. Kuzma Trooper Ivancik requested that Defendant provide him with his license and vehicle documentation, which Defendant struggled to do. While conversing with Defendant, Trooper Ivancik noticed that Defendant had slurred speech, and glassy, bloodshot eyes. Defendant told the Trooper that he had left the Gingerbread Man, where he had consumed two beers. After having him perform Standard Field Sobriety tests and take a preliminary breath test, Trooper Ivancik arrested the Defendant and transported him to Carlisle Regional Medical Center. Upon arrival at the Carlisle Regional Medical Center, Trooper Ivancik read the new DL-26 form to Defendant; this new form omits any language regarding increased criminal penalties for the refusal to provide a blood sample. Defendant signed the form and provided a sample of his blood, with a result of.132. ANALYSIS Defendant Kuzma argues two points: 1) The blood draw obtained from [Defendant] violates the Supreme Court s holding in Birchfield and violates 75 Pa.C.S. 1547(b)(2) because it imposes penalties under 3804(c), and 2) [Defendant s] consent is invalid because it was not knowingly, intelligently, and voluntarily given. Defendant s first argument is that the blood draw obtained from him was in violation of the law as established in North Dakota v. Birchfield, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), as well as under 75 Pa. C.S. 1547(b)(2). Birchfield addressed the constitutionality of implied consent laws which require motorists, as a condition of operating a motor vehicle, to consent to blood alcohol testing if arrested on suspicion of driving under the influence. Id. at 2169, 195 L. Ed. 2d at 570. After a very thorough analysis, the court found that because the impact on privacy is slight, the Fourth Amendment to the United States Constitution does permit warrantless breath tests incident to arrests for drunk driving. Id. at 2183, 195 L. Ed. 2d at 587. The court arrived at a different conclusion, however, with regard to blood tests, finding that [b]lood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Id. Thus, the court held that because breath tests are significantly less intrusive than blood tests, a breath test, but not a blood test, may be administered as a search incident to an arrest for drunk driving. Id. at 2185, 195 L. Ed. 2d at 588. Pursuant to the Birchfield analysis and holding, the question then became whether Defendant validly consented to a test of his blood. 244

4 Commonwealth v. Kuzma 245 Defendant argues that Pennsylvania s implied consent law, by virtue of its mere existence, invalidates an otherwise valid consent to a blood test. Under Pennsylvania s implied consent law, as it existed at the time of Defendant s arrest,... [a]ny person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle: (1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock); Pa. C.S. 1547(a) (2016). Of particular note is the second part of the statute, It shall be the duty of the police officer to inform the person that: (i) the person s operating privilege will be suspended upon refusal to submit to chemical testing; and (ii) 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). 75 Pa. C.S. 1547(b)(2) (2016). Defendant argues that the mere fact that subsection ii still existed renders Defendant s consent to provide his blood entirely meaningless. However, this is an inaccurate interpretation of the law. As a result of Birchfield and its progeny, Pennsylvania developed the new DL-26 form, which eliminated all mention of increased criminal penalties as a result of a refusal. Instead, the new form states, in accordance with the law, [i]f you refuse to submit to a chemical test, your operating privilege will be suspended for at least twelve months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to eighteen months. Commonwealth, Exhibit #1. This form, and the reading thereof, is in compliance with the mandates of Birchfield, as it eliminates any mention of increased criminal penalties. Furthermore, under Pennsylvania s implied consent law in effect at the time of Defendant s arrest, his consent 245

5 246 Commonwealth v. Kuzma was presumed under 1574(a), and the recitation of the DL-26 form was merely an extra precaution to ensure the voluntariness of Defendant s consent. 1 Thus, Defendant s first argument is without merit. Defendant s second argument is that his consent was not knowingly, intelligently, and voluntarily given. In short, Defendant wishes to further extend the protections of Birchfield, and turn our law enforcement officers into lawyers who advise defendants that their refusal to submit to a chemical test may increase their probability of success on the underlying charge. The law does not require such a step. The DL-26 form requests consent, and advises defendants of the legal civil penalty, i.e., driver s license suspension, that will result from the refusal to provide that consent. No more is required. Defendant puts special emphasis on the fact that the Trooper told him that he would be transporting him to the hospital to read him the DL-26, which is a consent to draw blood from you. Apparently, Defendant believes that the fact that the Trooper did not specifically say that the form was an option to consent renders the entire result inadmissible; however, this is inconsistent with Pennsylvania law. The reading of the DL-26 form ensures voluntariness of consent, by ensuring that an arrestee is informed that consent is not required. Specifically, the form, as read to Defendant, states I am requesting that you submit to a chemical test of [blood]. If you refuse to submit to the chemical test. Defendant was clearly informed that the chemical test was a request, and that he could refuse; however, Defendant was cooperative with giving his blood, as he was cooperative throughout his entire interaction with Trooper Ivancik. There is absolutely no evidence that his consent was not knowingly, intelligently and voluntarily given. Finally, Defendant argues that because motorists are presumed to know the law, the fact that the new DL-26 eliminated mention of increased penalties is of no mention because the Defendant knew at the time that the increased penalties were still technically part of the DUI statute. However, Defendant s argument must fail on its own reasoning. If motorists are presumed to know the law, then they are presumed to know the current law. The current law in effect at the time of Defendant s stop was that increased criminal penalties for refusal of a blood test were 1 The Commonwealth argues that if this Court finds that the second section of 75 Pa. C.S. 1547(b) is unconstitutional, it should be severed, with the remaining part of the statute left intact. Because this Court finds that the arguably unconstitutional part of the statute was not implicated in the present case, it has no need to address the issue of severability. 246

6 Commonwealth v. Kuzma 247 unconstitutional under Birchfield; thus, Defendant was aware of the law, and aware that he had an absolute right not to consent. In reading the new DL-26 form, Trooper Ivancik properly provided Defendant with notification of the only permissible result of a failure to give blood a suspension of his driver s license and thus fulfilled the requirements of the law. Defendant submitted to the test without argument or question, just as he had done with the SFSTs and the portable breath test. Defendant s consent was knowingly, voluntarily, and willfully given. ORDER AND NOW, this 5th day of September, 2017, in accordance with the attached Opinion, the Omnibus Pretrial Motion in the nature of a Motion to Suppress filed by the Defendant is DENIED. 247