GARLIC — NOBODY LIKES IT — The Case of Robert Garlick, Penn DOT, a DUI Investigation, and a Blood Test Refusal

On July 17, 2017 Robert Garlick was operating his motor vehicle in Erie County Pennsylvania.  A state Trooper investigating his 1 car accident, suspected Mr. Garlick of being under the influence of alcohol.  Garlick was arrested for suspicion of DUI.  At the barracks the Trooper read verbatim the warnings contained in the July 2016 revised Penn DOT DL-26B form.  This form provides the following warnings with regard to a chemical test of blood:

1. You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code.

2. I am requesting that you submit to a chemical test of blood.

3. If you refuse to submit to the blood 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 18 months.

4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to a blood test, you will have refused the test.

I and many other attorneys have argued that this language in this DL-26B form fails to comply with the statutory version of §1547(b)(2) in effect at the time; that these drivers are not advised that refusing the chemical test would result in enhanced criminal penalties (i.e. the penalties provided in Section 3804(c)) as § 1547(b) requires. While there is no statutory or other requirement that the DL-26 form contain appropriate warnings, or that the form be read verbatim, it is nonetheless the duty of the police officer to inform the petitioner of the statutorily required warnings. In other words, if the police officer recites the appropriate warnings from memory without the use of any form at all that is perfectly acceptable under the law.  In this case, however, the Trooper confirmed that the only warnings he provided were those contained on the DL-26B Form which he read verbatim. Those warnings are not consistent with the law.

The law in effect in July of 2016 was 75 Pa.C.S.A. § 1547.  Section 1547 of the Vehicle Code in effect on May 24, 2017, provides in pertinent part:

(a) General rule.—Any 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 or blood 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)….
* * *

(b) Suspension for refusal.—

(1) 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 [D]epartment shall suspend the operating privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
* * *
(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(a),(b).

On July 20, 2017, the governor approved Act 30 of 2017 which provides for an amendment to Section 1547(b)(2) removing the language requiring a police officer  to provide the warnings relating to enhanced criminal penalties for refusal. This amendment was not effective on the date of Garlick’s incident.  The fact that the legislature amended it is indicative of its acknowledgement that such an amendment was necessary to effectuate the change required of the warnings pursuant to Birchfield.

Drivers license attorneys and I argue PennDOT’s amended DL–26B form, created post-Birchfield, removes references to §3804 criminal penalties. This form is not consistent with the statutory framework of the motor vehicle code and not consistent with any legislative authority. Various courts have been confronted with post-Birchfield amended O’Connell warnings that do not contain the mandatory/ statutory language of § 1547(b)(2).  These cases do not address the illegality of the DL-26B form and the incorrect recitation of law to the motorists deemed refusing.

Mr. Garlick objected to amended DL 26B reading.  The Erie County Court of Common Pleas judge denied his legal argument.  On appeal to the Commonwealth Court affirmed the trial judge and found PennDOT correctly altered its DL-26B form after the Birchfield case.  As you recall, Birchfield v North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), and Commonwealth of Pennsylvania jurisprudence interpreting it hold that 75 Pa.C.S.A. §1547(b) and Pennsylvania’s enhanced criminal penalties for refusing a chemical blood test are unconstitutional.

The complex criminal versus civil application of Birchfield, is born out in the case of Boseman v. Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017), and Gray v. Commonwealth , Dep’t of Transportation, Bureau of Driver Licensing, No. 1759 C.D. 2016, 2017 WL 2536439, at *7–8 (Pa. Commw. Ct. June 9, 2017), reargument denied (Aug. 7, 2017). These cases maintain arresting officer’s statutory obligation to inform a motorist of the General Assembly’s defined § 1547(b)’s ramifications of a refusal – not PennDOT’s version.

Garlick v. PennDOT is the first case to decide the exact argument I have raised in several cases.  Garlick rejects, though without explanation, the argument that the PennDOT revised DL-26 form is illegal.  The court  opinion adopts much of my and other defense counsel’s reasoning that; “It is true, as Licensee argues, that the language contained in Section 1547(b)(2)(ii) was mandatory at the time Trooper requested that Licensee submit to a blood test. However, while Section 1547(b)(2)(ii) then “command[ed]” that a warning about enhanced criminal penalties be given the purpose behind that provision is to make a licensee aware “of the consequences of a refusal to take the test so that he can make a knowing and conscious choice.” Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 877 (Pa. 1989); see Commonwealth v. Myers, 164 A.3d 1162, 1171 n.12 (Pa. 2017) (plurality) (“purpose of [Section 1547(b)(2)] ‘is to entitle arrestees to the information necessary to assess the dire consequences they face if they fail to consent to chemical testing, to ensure their choice in that regard is knowing and conscious, as we described in O’Connell’”

However, the court proceeds to state “Given our review of the current state of the law, Licensee’s argument that his license must be reinstated because he was not warned that he would be subject to no longer constitutionally permissible enhanced criminal penalties for refusing blood testing is unpersuasive. Trooper specifically and accurately warned Licensee about the consequences of refusing a blood test that remain following Birchfield, that is, the suspension of his license. Therefore, common pleas did not err when it denied Licensee’s appeal.”

This conclusion ignores the realty of the legislative dictate that the law as written and authorized by the General Assembly is the only permitted and regally authorized language Penn DOT can read to licensees.  More appeal will follow because of this specious and ill-informed decision.

Still on the topic of refusals to submit to  a breath or blood test, a new bill introduced into the General assembly in 2018, Senate Bill 553, makes changes to the state’s DUI laws and will take effect Jan. 11.  Among them is a new fee for refusing to submit to a blood-alcohol test, after the U.S. Supreme Court ruled in 2016 that police can’t obtain blood samples without a warrant or consent.  Under the revised law, drivers who refuse a blood-alcohol test but are convicted and lose their license will have to pay a “restoration fee” for their license of up to $2,000 — $500 for the first time a test is refused, $1,000 for the second time and $2,000 for the third and each time after. The law requires officers to inform suspects of the costs when they’re pulled over.


State Trooper Highway Automobile Dog Searches After the End of Traffic Investigation

This week the United States Supreme Court decided Rodriguez v.United States, 575 U.S. ___ (2015). The decision affirms a significant portion of Pennsylvania law in the area of extension of traffic stops beyond the initial motor vehicle code investigation. I have handled these cases in Cumberland, Lancaster, Montgomery, Bucks and Philadelphia Counties.

These cases routinely involve state troopers illegally extending basic traffic stop investigations into motor vehicle searches. These extended traffic stops discover illegal contraband leading to broader criminal charges. However, it is that extended search, based only upon a guess, hunch, or a simple illegal request to search, that is illegal.

Rodriguez v. United States rules illegal the extension of a traffic stop by calling in a dog sniff team without reasonable suspicion of criminal activity. The US Supreme Court previously stated that a dog sniff conducted during a lawful traffic stop does not violate the fourth amendment proscription unreasonable seizures. Rodriguez presents the question of whether the Fourth Amendment tolerates EXTERIOR dog sniffs after completion of a traffic stop, not during, when the time needed to handle the matter for such violation exceeds a reasonable time.

The Pennsylvania trial courts have addressed this scenario many times, leading a Chester County Judge to state, “there is a distasteful convergence of facts and circumstances … that test the bounds of credulity and requires the court’s candor in distinguishing between lawful police investigatory conduct and conduct proscribed by our Constitutions.” Commonwealth v. Parker, 2009 Pa. Dist. & Cnty. Dec. LEXIS 132 (2009)(Honorable Ronald C. Nagle, Chester County Court of Common Pleas). The Pennsylvania Supreme Court has consistently stated, “Where the purpose of an initial traffic stop has ended and a reasonable person would not have believed that he was free to leave, the law characterizes a subsequent round of questioning by the police as an investigative detention or arrest. In the absence of either reasonable suspicion to support the investigative detention or probable cause to support the arrest, the citizen is considered unlawfully detained.”

After police finish processing a traffic infraction, the determination of whether a continuing interdiction constitutes a mere encounter or a constitutional seizure centers upon whether an individual would objectively believe that he was free to end the encounter and refuse a request to answer questions. Commonwealth v. Kemp, 2008 PA Super 274, 961 A.2d 1247, 1253 (Pa. Super. 2008) citing Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000).

To determine whether interaction following a legal detention is a “mere encounter” or a detention, Pennsylvania courts analyze the totality of the circumstances including:

1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen’s movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, . . . thus suggesting to a citizen that his movements may remain subject to police restraint; 9) the presence of an express admonition to the effect that the citizen-subject is free to depart is a potent, objective factor; and 10) whether the citizen has been informed that he is not required to consent to the search.

Commonwealth v. Moyer. Conferral of the ‘free-to-go’ advice is itself not a reason to forego a totality assessment’ and therefore does not constitute a controlling factor in assessing whether a person would actually credit a police indication that he was free to leave.”

In many of these cases, the police fabricate the basis for the late night car stop, picking some specious motor vehicle code violation. Allegations of traveling too closely, lane change without a blinker, a license plate lights out, obstructions from a rear view mirror, or illegal under car lights are typical deminimus traffic violations. Sometimes tickets are issued. More often than not, no warnings or violation is recorded.

After the individual is removed from the vehicle, basic cursory flashlight investigation and driver’s information computer checks are made. In many cases all is legal.  There is no evidence of criminal activity presented to justify either a consensual search or a request for a non-consensual search. Maybe two cell phones, a rental car, and a careful driver from out-of-state is present. Troopers routinely claim under oath that the person, wherever they are coming from, was traveling from a high drug area.

At this juncture, state troopers threaten dogs ripping apart vehicles. If this does not work, suggestions of long delays and “we will just get a warrant” followed by “we will then rip your car apart” are employed. These tactics are deployed to secure consent to search. It is when the search requests are denied, as in Rodriguez, that state troopers call in backup canine officers. Here the motorist must wait and is thus detained.

When the dogs arrive and conduct the exterior sniff, alerting to “contraband”,Troopers now claim reasonable suspicion to then enter the car for further searching. Rodriguez addresses the legality of this police tactic; extending an otherwise legal traffic stop that did not present reasonable suspicion of criminal activity, by requiring a motorist to wait for the canine sniff team for the exterior search which creates the only reasonable suspicion to then enter the car without consent.

It is now the law of the land that this is illegal. Rodriquez rules that the traffic stops become unlawful when prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket. The seizure remains lawful only so long is unrelated inquiries do not measurably extend the duration of the traffic stop. The court ruled that a dog sniff, a measure aimed at detecting evidence of ordinary criminal wrongdoing, with out reasonable suspicion to do so extends illegally the duration of the traffic stop.

The Court squarely rejected the argument that an officer may incrementally prolonged a stop to conduct dog sniffs so long as the officer is reasonably diligent in pursuing the traffic related purpose of the stop. (The Court equated this to the officer earning bonus time to pursue an unrelated criminal investigation.) The magistrate’s finding that the detention for the dog sniff, which itself prolongs the traffic stop, was not independently supported by individualize suspicion, rendered illegal the extension of the traffic stop.

Call me to discuss your car investigation.

Smart Phone Police Searches Now Require a Warrant, Unless Consent is Given

Government searches of every smart phone now require a warrant. Any other ruling in Riley v. California, would have voided the United States Constitution, Fourth Amendment’s proscriptions against governmental rummaging through the personal effects of its citizens. In Riley v. California, the Supreme Court ruled that state and federal investigators’ smart phone searches incident to lawful arrests require a warrant issued upon probable cause. The court held so, comparing the search of smart phones to that of a storage unit or entire house, based upon the extent of personal privacy data contained in smart phones.

The first stated limitation of the Riley decision is clear. “Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is ‘an important working part of our machinery of government….The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.'” So, if there is a need and judicial allowance, the a warrantless search will be accepted and the evidence admissible.

The sufficiency of state or federal government probable cause proclamations in warrants, prompting judicial permission to search, has been extensively discussed in every jurisdiction in the country. The level of evidence necessary to secure a warrant is fact specific to the investigation and lower than beyond a reasonable doubt. With regard to smart phone searches, probable cause must relate to specific criminal activity of the immediate investigation and not general criminal activity for which search of the smart phone will or could produce evidence of a crime.

The ruling’s second significant limitation is that it does not discuss consensual searches of smart phones. This brings us to the future step of police investigative techniques in light of Riley. Police will now make every effort to secure consent before searching smart phones, thereby voiding both the need for a warrant and the importance of the Riley decision. These will be permissive searches, similar to consent search of automobiles on the highway during an otherwise legal car stop, that police will secure from the smart phone owner or possessor of the phone. Threat of a search based upon a warrant to coerce, connive, or simply scare a target into allowing a search of the smart phone is the step the police will now use to avoid the warrant requirement.

The Pennsylvania Supreme Court discussed consent searches in Commonwealth vs. Strickler and Commonwealth v. Freeman. There, the Court concluded that the issue of whether a minor encounter or constitutional seizure takes place centers upon whether an individual objectively believe that he is free to end the encounter and refuse a request to answer questions or conduct a search. In these cases the court made a critical determination that when an individual is subject to a valid detention ( a legal basis exists to conduct any police investigation), and the police continue to engage that person in conversation, the Citizen, having been in an official detention, is less likely to understand that he has the right to refuse to answer questions or a search. The court here must first determine is there reasonable suspicion of criminal activity to initially detain the person from whom consent is being sought.

Furthermore, while acknowledging the importance of the various factors, the court stressed that “conferral of the free-to-go advice” is itself, not a reason to forgo a totality assessment and therefore does not constitute a controlling factor in assessing whether the person would actually credit a police indication that he was free to leave. The suppression court must focus on whether there was a clear and expressed end point of the prior detention, the character of the police presence and conduct in the encounter under review, the geographic and temporal environment elements associated with the encounter, and the presence or absence of express advice that the citizen subject was free to decline the request for consent to search.

Each level of more intrusive questioning by any police officer must be based upon objective, articulable, reasonable suspicion of criminal behavior under federal and state constitutions for the officers’ subjective suspicions to be validated. Claims of heightened suspicion lead to an environment in which a defendant will be subjected to non-consensual search of both car and/or smart phone without probable cause.

Police Departments will commence training and expand investigative psychiatric and psychological tricks to secure consent searches of any smart phone. Regardless of how many police officers are present, on what road, at what time of day or night, and for what purpose, how consent is secured needs to be litigated. Custodial interrogation circumstances should be investigated to properly imply and defeat consent searches. Exploring the time period within which consents are secured under what circumstances the consent techniques will prove fruitful.

Please call me to discuss how and why your smart phone was searched and if you gave consent, why and what coercive measures were employed to secure your consent.

PNAP Conditions for Nursing License Reinstatement

The recent Commonwealth Court case of Blair v. Board of Nursing, 2013 Pa. Commw. Unpub. LEXIS 388 (May 28, 2013), reviews a Pennsylvania Nursing Board decision affirming the substantial and egregious hurdles PNAP places on reinstatement of nursing licenses. Blair, unfortunately, plead guilty to a misdemeanor drug possession charge in 2006 and admitted to heroin addiction stemming from migraine headaches. Over the next several years he entered and successfully completed several drug treatment and detoxification programs, securing temporary reinstatement of his license. Blair was compliant with all recommendations of PNAP even though he refused to enroll in PNAP. Blair rejected PNAP because he successfully worked as a home nurse in a setting without the ability to be monitored. This monitoring was PNAP’s only condition, of forty-two, to which he could not comply and PNAP would not waiver, requiring the institution of disciplinary proceeding. This case discusses the disciplinary action the Board of Nursing took against Blair and the results.

Importantly, the appellate court’s review of Department of State licensing board decisions is limited to determining whether the findings of fact are supported by substantial evidence and whether the board committed errors of law or constitutional violations. The licensing board may accept or reject the testimony of any witness, either in whole or in part. When reviewing a board decision, the appellate court may not reweigh the evidence or second guess the board’s credibility determinations. Appellate review of a board’s disciplinary sanction (requiring monitoring in this case) is limited to determining whether the board flagrantly abused its discretion or executed its duties or functions in a purely arbitrary and capricious manner. This is a very high burden.

In Blair, several facts are significant. Blair plead guilty in 2006 to heroin possession, Blair voluntarily submitted to a mental and physical examination, Blair was diagnosed as suffering from heroin dependence disorder in remission, and the finding that Blair “is safe to practice professional nursing only if he participates in a structured monitoring and treatment program for three to five years for his opiate dependence disorder.” Blair’s examination was performed pursuant to 63 P.S. §224(a)(2), which states in part, “in enforcing this clause … the Board shall, upon probable cause, have the authority to compel a licensee to submit to a mental or physical examination as designated by it.” Blair’s admission of heroin dependence gave the Board probable cause to seek the mental and physical examination. A conviction for violating any provision of the Drug Act is both an automatic one year suspension and probable cause for an evaluation upon reinstatement. DUI’s do not automatically constitute a basis for evaluation but the Board will try to use it as a basis to seek voluntary enrollment in PNAP. Don’t fall for this.

Once compelled to be examined (through voluntary enrollment in PNAP or by order), the trap is set. The catch is the report language the Board’s doctors know to employ becomes the death blow to any license. The Commonwealth’s attorneys uniquely and solely rely on their expert to hang their entire license stripping case. No other evidence is necessary.  The Board’s doctors performing these examinations are aware that a diagnosis of any condition, regardless of remission, is the kiss of death for any license. The Board’s doctors employ the same language in every medical and physical report involving individuals with drug use histories. Softly concluding the licensee’s medical condition of drug addiction or use is in “full remission” is a meaningless phrase which the Board ignores.

Once diagnosed, the doctor typically concludes that the licensee must still undergo treatment and monitoring in PNAP. Once PNAP is recommended, the proposed consent decree/settlement agreement with PNAP becomes the problem. This is because, as the Blair court stated, “PNAP’s standard treatment contract, which is modeled after the Bureau of Professional and Occupational Affairs’ (Bureau) Professional Health Monitoring Program (PHMP), prohibits participating nurses from practicing either in a home care setting or without direct supervision in the workplace. As part of its agreement with PHMP, PNAP cannot modify the contract provisions prohibiting practice…”

It is this important statement, of which every Board attorney knows, the Board knows, and the licensee does not know. The forty two conditions of every PNAP agreement, contract, stipulation, settlement, or Board Order, are non-negotiable. It’s a take it or leave it settlement. Unfortunately, once PNAP is proposed, Blair reveals that the hearing officers and the Board will compel the exact same forty two conditions regardless of the licensee’s individual circumstances, which conditions the appellate courts will not disturb. This is why experienced counsel is necessary to avoid consensually stepping into this PNAP trap. Please call me to discuss your case.

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