J-S79023-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JORDAN DIETRICH FINK

                            Appellant               No. 3258 EDA 2015


             Appeal from the Judgment of Sentence October 9, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000008-2015


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED DECEMBER 27, 2016

       Jordan Dietrich Fink appeals from the October 9, 2015 judgment of

sentence entered in the Delaware County Court of Common Pleas following

his conviction for driving under the influence of a controlled substance

(second offense).1 We conclude that the police officers had probable cause

to arrest Fink for driving under the influence.    However, we reverse the

judgment of sentence and remand this case to the trial court to determine

whether Fink’s consent to the blood test was validly obtained in light of

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), which was decided

after the trial court’s decision in this case.


____________________________________________


       1
           75 Pa.C.S. § 3802(d).
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       On May 4, 2014, Officer Andrew Ronsvalle of the Marple Township

Police Department responded to a three-vehicle accident at the intersection

of South Sproul Road and Williamsburg Drive in Marple Township, Delaware

County.     N.T. Suppression Hr’g, 3/4/15, at 16-17.          At the suppression

hearing,2 Officer Ronsvalle testified that when he spoke with Fink at the

scene, Fink was “confused and sluggish” when answering questions, and that

the officer often had to repeat himself. Id. at 23. Fink was unsteady on his

feet, leaned against the tailgate of a pickup truck for balance, and appeared

“very lackadaisical” and tired.         Id. at 23, 30-31.   Fink informed Officer

Ronsvalle that he had caused the crash, but was unsure how.            Id. at 26.

Officer Ronsvalle further testified that Fink’s pupils were constricted. Id. at

28. Fink told Officer Ronsvalle that he had not hit his head in the accident

and that he had taken Adderall “while on his travels back from Florida.”     Id.

at 28-29.

       Officer Ronsvalle concluded that Fink could not safely operate a motor

vehicle because he was under the influence of a controlled substance. Id. at

30. However, the officer did not perform a field sobriety test because it was

a busy roadway and Fink was having a “hard time standing.” Id. at 31-32.

       Officer Ray Stiles also arrived at the scene. Id. at 69. Officer Stiles

found Fink’s vehicle to be inoperable, and told Fink that he therefore needed

____________________________________________


       2
       The trial court conducted a two-day suppression hearing on March 4,
2015 and April 17, 2015.



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to get a ride home.        Id. at 72.     Officer Stiles noticed Fink’s pupils were

pinpointed and that his responses were sluggish. Id. at 76. Officer Stiles

found Fink to be confused at times and unsteady.3         Id. at 76, 79.

       Officer Ronsvalle then placed Fink under arrest, handcuffed him, and

drove him to the hospital.         Id. at 34-35.    Officer Ronsvalle testified that

before leaving for the hospital he informed Fink that he did not have a right

to refuse a blood test and that if he did refuse, his license would be

suspended for one year.          Id. at 35.    Officer Ronsvalle testified that Fink

responded, “yes, no problem.” Id. at 36. Officer Ronsvalle did not read the

DL-26 form4 to Fink because Fink did not refuse the testing, but did inform

Fink of “the penalty” for refusing. Id. at 36. The blood test results revealed

the presence of cannabinoids (marijuana) and alprazolam (generic Xanax).

Id. at 38.

       Fink’s father, David Fink (“David”), testified that his son had called him

from the accident scene and requested a ride.              N.T. Suppression H’rg,

____________________________________________


       3
        Officer Stiles searched Fink’s vehicle and found rolling paper, eye
drops, a prescription bottle containing two different color pills, and a one-
inch-by-one-inch Ziploc bag containing pills. The trial court suppressed the
evidence found during the search of the vehicle. The decision to suppress
that evidence is not at issue in this appeal.
       4
        The DL-26 form contains warnings of the potential consequences of a
person’s refusal to consent to a blood test, including that the individual’s
license could be suspended for at least one year and that, if convicted of
violating 75 Pa.C.S. § 3802(a), the individual will face more severe penalties
because of the refusal.



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4/17/15, at 5-6. David stated that Fink had spoken clearly and crisply. Id.

at 6. Further, David stated that Fink was not stumbling at the scene and

was standing upright next to the officer. Id. at 10. When David met with

Fink two hours later, Fink did not appear to be under the influence of

narcotics. Id. at 11-13.

       The trial court granted Fink’s motion to suppress the evidence found

during the warrantless search of the vehicle, but denied Fink’s motion to

suppress the blood test results.

       Following an August 13, 2015 stipulated trial, the trial court found Fink

guilty of driving under the influence of a controlled substance, 75 Pa.C.S. §

3802(d)(2). On October 9, 2015, the trial court sentenced Fink to 90 days

to 23 months of incarceration, 120 hours of community service, a $300.00

mandatory cost assessment, and 3 years of consecutive probation.             On

November 6, 2015, Fink filed a timely notice of appeal.

       Fink raises the following issues on appeal:

           I. DID THE TRIAL COURT ERR BY FAILING TO SUPPRESS
           ALL OF THE EVIDENCE IN THIS CASE FOR LACK OF
           PROBABLE CAUSE BY THE POLICE OFFICER TO ARREST
           THE DEFENDANT?

           II. DID THE TRIAL COURT ERR BY FAILING TO SUPPRESS
           [FINK’S] BLOOD RESULTS FOR LACK OF CHEMICAL TEST
           AND O'CONNELL[5] WARNING WHICH ARE REQUIRED BY
           75. P.S. 1547?
____________________________________________


       5
       Com., Dep’t of Transp., Bureau of Traffic Safety v. O’Connell,
555 A.2d 873 (Pa. 1989).



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          III. DID THE TRIAL COURT ERR BY FAILING TO GRANT
          [FINK’S] MOTION TO SUPPRESS HIS BLOOD RESULTS FOR
          LACK OF A SEARCH WARRANT AS IS REQUIRED BY THE
          UNITED STATES AND PENNSYLVANIA CONSTITUTIONS
          AND REPORTED CASES?

Fink’s Br. at 4 (suggested answers omitted).

      Fink challenges the trial court order denying in part his motion to

suppress.    When reviewing the denial of a suppression motion, we must

determine whether the record supports the trial court’s factual findings and

whether     the   legal   conclusions   drawn    from   those   facts   are   correct.

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013).                       We

may only consider evidence presented at the suppression hearing.               In re

L.J., 79 A.3d 1073, 1085-87 (Pa. 2013).                 In addition, because the

Commonwealth prevailed on this issue before the suppression court, we

consider only the Commonwealth’s evidence and so much of the defense

evidence “as remains uncontradicted when read in the context of the record

as a whole.” Brown, 64 A.3d at 1104 (quoting Commonwealth v. Cauley,

10 A.3d 321, 325 (Pa.Super. 2010)).             We may reverse only if the legal

conclusions drawn from the facts are in error. Id.

      Fink argues the police officers lacked probable cause to arrest him,

and that the blood-test evidence should have been suppressed as the fruit of

an unlawful arrest.       Fink’s Brief at 13-16.   In support of that claim, Fink

observes that while Officer Ronsvalle testified at the suppression hearing

that Fink had not given a reason for the accident, in the affidavit of probable

cause he stated that Fink had said he was distracted by his cell phone. Id.


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at 13. Fink also notes that Officer Ronsvalle did not conduct a field sobriety

test and was not a drug recognition expert, and that there was no odor of

alcohol or marijuana at the scene.      Further, Fink reasons that because

Officer Stiles testified that he had advised Fink to ask someone to pick him

up from the scene, and that he was not arrested until after the officers

discovered the drug evidence in his vehicle, the police did not have probable

cause before the search. Id. at 14.

      Police may not arrest an individual unless they have “probable cause

to believe that a crime has been committed by the person who is to be

arrested.”   Commonwealth v. Wells, 916 A.2d 1192, 1195 (Pa.Super.

2007). Our Supreme Court has stated:

         Probable cause is made out when “the facts and
         circumstances which are within the knowledge of the
         officer at the time of the arrest, and of which he has
         reasonably trustworthy information, are sufficient to
         warrant a man of reasonable caution in the belief that the
         suspect has committed or is committing a crime.” The
         question we ask is not whether the officer’s belief was
         “correct or more likely true than false.” Rather, we require
         only a “probability, and not a prima facie showing, of
         criminal activity.” In determining whether probable cause
         exists, we apply a totality of the circumstances test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (emphasis in

original) (citations omitted).

      The trial court found, based upon the totality of the circumstances,

that the police officers had probable cause to believe Fink was under the

influence of a controlled substance to a degree that impaired his ability to



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safely drive a vehicle.6 Opinion, 4/14/2016, at 8 (“1925(a) Op.”). The trial

court noted that Fink was leaning against a pick-up truck for balance and

was unsteady on his feet, that Fink was slow to answer questions, appeared

confused and sluggish, and had constricted pupils.      Id.   Further, Fink had

informed Officer Ronsvalle that he had not hit his head during the accident,

id. at 5, but had taken Adderall on his drive home from his school in Florida,

id. at 5, 8.

       Although Officer Stiles testified that he had suggested to Fink to call

for a ride home, Officer Stiles also testified that Fink’s pupils were

“pinpointed,” that Fink was “sluggish in his responses,” that Fink was unable

to focus on the “direct questions or exactly what was going on” and that he

was “[c]onfused at times.” N.T., 3/4/15, at 76.7 Further, Officer Ronsvalle

____________________________________________


       6
        The Vehicle Code provides that “[a]n individual may not drive,
operate or be in actual physical control of the movement of a vehicle under
any of the following circumstances: . . . (2) The individual is under the
influence of a drug or combination of drugs to a degree which impairs the
individual's ability to safely drive, operate or be in actual physical control of
the movement of the vehicle.” 75 Pa.C.S. § 3802(d)(2).
       7
         Although the search of the vehicle provided additional evidence in
support of the conclusion that Fink was driving while under the influence of
drugs, the officers had probable cause without that evidence. Further, the
officer’s testimony did not rely on the items found during the search to
support the arrest. See N.T., 3/4/16, at 60-62 (Officer Ronsvalle testified
that he did not know whether Fink was in police car before Officer Stiles
provided items uncovered in search); id. at 95-96 (Officer Stiles testified he
did not recall what step in arrest process Officer Ronsvalle was in when he
presented contraband, that is, he did not remember whether Fink was
handcuffed or where Fink was located at the time).



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explained that when Fink was being processed at the police station, he said

he was using his cell phone at the time of the accident, but, at the scene,

Fink had offered no explanation for the accident. Id. at 47.

      We conclude that the trial court’s factual conclusions are supported by

the record and that the court did not err in finding the police officers had

probable cause to arrest Fink. See Commonwealth v. Weaver, 76 A.3d

562, 568 (Pa.Super. 2013) (police had probable cause to arrest for driving

under the influence of a narcotic where an identified concerned citizen

reported that appellant’s car was weaving and crossing into the oncoming

lane of traffic; trooper followed Appellant and initiated a stop after he

observed erratic driving; appellant appeared sluggish and was slow to

respond to commands; appellant had an injured leg and could not perform

the other field sobriety tests so trooper twice administered the horizontal

gaze nystagmus test, which revealed that appellant’s eyes had extensive

nystagmus, which is rapid involuntary oscillation of the eyeballs).

      Fink’s next two issues address whether he validly consented to the

blood test. In his second issue, Fink contends the trial court erred when it

denied his motion to suppress the blood test results because the police

officers failed to issue chemical-test and O’Connell warnings, as required by

75 Pa.C.S. § 1547. Fink maintains that section 1547 requires police officers

to warn the arrested individual of both the potential license suspension and

the increased criminal penalties that will be applied if he refuses to submit to

a blood test. Fink’s Br. at 17. He argues that his consent to the test was

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involuntary because the warnings were not provided, and he was told he:

“didn’t have a right to refuse. You have to go. You have to take it. If you

don’t your license will be suspended for a year.” Fink’s Br. at 19 (quoting

N.T., 3/4/2015, 35). He argues that the police were required to tell him he

could refuse to take the blood test. Id. at 21.

       In his third and final issue, Fink makes the related claim that the trial

court erred when it denied his motion to suppress the blood test because the

test was unconstitutional.       Fink’s Brief at 23. He contends that the police

officers were required to obtain a search warrant prior to obtaining his blood

test and that he did not validly consent to the test absent the warrant

because any consent was either coerced or the result of receiving incorrect

information from Officer Ronsvalle. Id. at 23-24.

       The United States Supreme Court has concluded that because “the

taking of a blood sample” is a search within the meaning of the Fourth

Amendment of the United States Constitution, absent an applicable

exception, police officers may not compel the taking a blood sample of a

defendant without a search warrant.            Birchfield v. N. Dakota, 136 S.Ct.

2160, 2173, 2185 (2016).8            One exception to the warrant requirement



____________________________________________


       8
        The Supreme Court, however, held that police officers may
administer a breath test without a warrant as a search incident to arrest.
Birchfield, 136 S.Ct. at 2185.




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occurs where a person voluntarily consents to the search.              Id. at 2185.9

The    Court     in   Birchfield    discussed      implied-consent   laws,   in   which

cooperation with blood alcohol testing is “a condition of the privilege of

driving on state roads.”           Id. at 2168, 2185-86.       The Court held that,

although implied-consent laws that impose civil penalties and evidentiary

consequences for refusing to consent are constitutional,10 implied-consent

laws that “impose criminal penalties” for refusing to consent to a blood test

are unconstitutional. Id. at 2185-86.11


____________________________________________


       9
         Fink argues the Commonwealth did not establish exigent
circumstances to justify the warrantless search. However, the applicable
warrant exception is consent, not exigent circumstances.
       10
            The Court in Birchfield stated:

            Our prior opinions have referred approvingly to the general
            concept of implied-consent laws that impose civil penalties
            and evidentiary consequences on motorists who refuse to
            comply. See, e.g., McNeely, supra, at ––––, 133 S.Ct.,
            at 1565–1566 (plurality opinion); [South Dakota v.
            Neville, 459 U.S. 553, 560, 103 S.Ct. 916, 920 (1983)]
            Petitioners do not question the constitutionality of those
            laws, and nothing we say here should be read to cast
            doubt on them.

136 S.Ct. at 2185.
       11
         The trial court’s 1925(a) opinion preceded the decision in
Birchfield. Where a United States Supreme Court decision “results in a
‘new rule,’ that rule applies to all criminal cases still pending on direct
review.” Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 2522
(2004).




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       Pennsylvania’s implied-consent law provides that a person’s license

may be suspended if a person refuses a requested blood test. 75 Pa.C.S §

1547(b) (“If any person placed under arrest for a violation of section 3802 is

requested to submit to chemical testing and refuses to do so, the testing

shall not be conducted but upon notice by the police officer, the department

shall suspend the operating privilege of the person as follows . . . .”).

Pennsylvania law further provides increased criminal penalties if a person

refuses a blood test and is later convicted of violating section 3802(a)(1).

See 75 Pa.C.S § 3804(c) (providing sentencing ranges for “[a]n individual

who violates section 3802(a)(1) and refused testing of blood or breath or an

individual who violates section 3802(c) or (d)”). Further, Pennsylvania law

provides that:

            (2) 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).12 Accordingly, in Pennsylvania, although a driver

cannot be convicted of a separate offense for refusing to consent to a blood

____________________________________________


       12
        In Commonwealth v. Gorbea-Lespier, this Court held that
O'Connell “warnings need only be given to an arrestee when the arrestee
refuses to submit to a test to determine the alcoholic content of blood,
(Footnote Continued Next Page)


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test, the driver faces increased penalties if later convicted of certain DUI

offenses.13     Commonwealth v. Evans, 2016 Pa.Super. 293, at 17

(Pa.Super. filed Dec. 20, 2016).

      We must determine whether Fink consented to the blood test, either

expressly or pursuant to Pennsylvania’s implied consent law, and whether

any such consent was valid. The Pennsylvania Supreme Court has stated:

           In determining the validity of a given consent, the
           Commonwealth bears the burden of establishing that a
           consent is the product of an essentially free and
           unconstrained choice—not the result of duress or coercion,
           express or implied, or a will overborne—under the totality
           of the circumstances. The standard for measuring the
           scope of a person’s consent is based on an objective
           evaluation of what a reasonable person would have
           understood by the exchange between the officer and the
           person who gave the consent. Such evaluation includes an
           objective examination of the maturity, sophistication and
           mental or emotional state of the defendant[.] Gauging the
           scope of a defendant’s consent is an inherent and
           necessary part of the process of determining, on the
           totality of the circumstances presented, whether the
           consent is objectively valid, or instead the product of
           coercion, deceit, or misrepresentation.

Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (internal citations

and quotation marks omitted).


                       _______________________
(Footnote Continued)

whether it is a breathalyzer or actual blood test.”       66 A.3d 382, 389
(Pa.Super. 2013) (emphasis added).
      13
        Fink was convicted of driving under the influence of a controlled
substance in violation of 75 Pa.C.S § 3802(d)(2), which, unlike 75 Pa.C.S §
3802(a)(1), does not provide for increased penalties for refusal.



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        The trial court found that Fink affirmatively consented to the blood

test, and that his consent was “unequivocal, specific and voluntary.”

1925(a) Op. at 9. The court explained that Fink was cooperative with the

officers and, although Officer Ronsvalle did not provide Fink with a DL-26

form containing the O’Connell warnings, he did explain the penalties of a

refusal.     Id.   The trial court further concluded that because Fink did not

refuse the test, any claim based on a lack of O’Connell warnings is

meritless. Id.

        The suppression hearing, however, occurred before the Supreme Court

issued its decision in Birchfield.14 Therefore, the hearing did not focus on

whether Fink had been informed that he might face greater criminal

penalties if he refused consent. Officer Ronsvalle testified that he informed

Fink his license would be suspended if he refused to consent to the blood

test.   That warning was fully consistent with Birchfield.    What is unclear

from the record, however, is whether Officer Ronsvalle told Fink that


____________________________________________


        14
         Birchfield held that a state may not base its implied-consent law on
the risk of criminal penalty for refusal to consent to a blood test, because
imposing any such penalty would be constitutionally prohibited. A logical
corollary to Birchfield’s holding is that when a driver’s express consent to a
blood test is obtained based on a threat of criminal penalties for refusal,
penalties that may not be constitutionally imposed, the express consent is
invalid. See Bumper v. N. Carolina, 391 U.S. 543, 547, 88 S.Ct. 1788,
1791 (1968) (consent not valid where police officer asserted he possessed,
but did not possess, valid warrant).




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refusing consent would also expose him to a higher criminal penalty if he

were later convicted of driving under the influence.15

       Following Birchfield, the police may validly obtain consent based on a

warning of a license-suspension penalty, because the Supreme Court made

clear that such penalty may be constitutionally imposed. In contrast, where

consent is obtained following a warning that refusal will subject a motorist to

“the pain of committing a criminal offense,” 136 S.Ct. at 2186, a penalty

that in fact may not be imposed, that consent is involuntary. See Evans,

2016 Pa.Super 293, at 17-18 (finding officer’s advisory to appellant partially

inaccurate where officer informed appellant of increased criminal penalties

and vacating judgment of sentence and remanding for re-evaluation of

consent based on totality of circumstances); cf. Birchfield, 136 S.Ct. at

1286 (remanding to state court to determine whether appellant voluntarily

consented to blood test where appellant had been informed submission to

test was required, his license was suspended, and he was fined in an

administrative proceeding). Because we cannot discern from the record the

specific warning provided to Fink prior to his consent to the blood test, we

are unable to determine whether his consent was constitutionally obtained.

We must, therefore, reverse the judgment of sentence and remand to the
____________________________________________


       15
         When the trial court asked Officer Ronsvalle whether he “did advise
[Fink] of the penalty” on the DL-26 form, the officer answered “Yes.” N.T.
3/4/15, at 36.     The DL-26 form contains both penalties, the license
suspension and increased criminal penalty.



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trial court for a determination as to whether Fink consented to the blood test

after being informed only that his license would be suspended if he refused,

or whether he consented after also being informed that if he refused he

would face increased criminal penalties if later convicted.

      Accordingly, we find the trial court did not err in finding the police

officers had probable cause to arrest Fink for suspected DUI. However, we

remand this case to the trial court to determine whether Fink validly

consented to the blood test.

      Judgment of sentence reversed. Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2016




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