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Home My WebLink About96-06770 t. ~ ~ . >-... ~ ~ 3 ~ . , i ~ 't Ii! ,t'; "~1 ,,' .' ," J.l 'i I j. ,:1 'I, ,I , , "I '1. .1' '\: ,\ /1 , , , , \ ~j ,Ii :~ .(~~ , N~ !~ 'il ~W i , >it ,J, Y" ,'-',\,; i':j ;~ ',t'/if I';'JI \ 'I~J I i i i I I , " ,j' , "1 " , ,. I" " ;,' ", {jj I ) ri)J \)lff'~ " ',' , ' 'i1,~ 'l'H . \.~ ' '~,+ ':',f~ !;;'I~i. ',',II::i.- ,1'_,' l ,i:::!~;' ,'i~ _,;1[., ;:.'~ , ,'Ii , '\ll, " " " ~ 1",',1 WILLIAM J. FULTON ATTORN[Y AT LAW loe WALNUT STREET HARRISBURG, PENNSYLVANIA 17101 17171 233.15133 April 7, 1997 VIA TELEFAX TO 717-240-6462 AND FIRST CLASS MAIL ADDRESSED TO The Honorable President .Judge Harold E. Sheely Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Re: Kathy Jean Yocum v. PennDOT No. 96-6770 civil Term Dear Judge Sheely: Thank you for allowing this response to the legal authorities cited by the Commonwealth at the hearing held on Monday, March 31, 1997. On behalf of the Petitioner, it is necessary to briefly discuss and distinguish the cases cited by opposing counsel and to direct Your Honorable Court's attention to authority favorable to the Petitioner's Appeal. Because the ancillary substantive criminal charge of driving under the influence was dismissed by the district justice in Delaware County, the Commonwealth cited Commonwealth v. Wvsocki, 517 Pa. 175, 535 A,2d 77 (1987). While it is true that the case stands for the proposition that the legality of the stop is not an iSSUE! in a breath test refusal case, it holo.s at the same time that: .. .although the fact that the initial stop may have been improper would not necessarily prevent a suspension of license where there was a subsequent refusal to submit to a breathalyzer test, ~ a suspension will r~o~ ~~ ~~l~~~~ ~f .tM-officer's reauest was not supported by a 0 b n s for the officer to have believed that the person was unde~ the influen~of alcohol. 535 A.2d pp 79 to 80 (emphasis supp1 ied) While Wysocki involves a roadblock or sobriety check point, most aases in this area arise from accidents. Indeed, the next case cited by counsel for the Department, Commonwealth v. McDonald, 130 Pa.Cmwlth. 276,567 A.2d 1127 (1989), is stereotypical but for the absence of failed field sobriety tests. In M&Qonald, a hit and run accident had occurred, the operator exhibited a strong odor of alcohol, had glassy blood shot eyes and was uncooperative with the police. President Judge Sheely April 7, 1997 Page 'fwo Similarly, the Commonwealth cites the court to Keane v. DOT, 127 Pa. Cmw1th. 220, 561 A.2d 359, another fact pattern involving an accident and an issue over possible post accident drinking. Its holding is that the officer's subjective belief that the operator wan driving under the influence must be objectively reasonable in light of the sur.rounding circumstances. The facts in the instant case are far less dramatic than in most reported decisions. There was no accident. The probable cause for the stop was merely a wide left turn in which a front tire grazed not a curb, but a rounded gutter. Ms. Yocum had apparently arrived at the apartment complex where she resides when encountered by the policeman. No violations of the vehicle code were witnessed nor charged and her car had travelled only a short distance at a slow speed before pulling in a private parking lot. She was not unresponsive nor uncooperative. The odor of alcohol was not severe. She passed field sobriety tests designed to detect cognitive impairment and did not dramatically fail to perform those which test physical coordination and balance. The scope of appellate review in a license suspension case is limi ted to: ..,determining whether the trial court's findings are supported by competent evidence, whether errors of law have been committed, or whether the trial court's decision demonstrates a manifest abuse of discretion. Commwealth v. Dixon, Pa.Cmwlth. ,596 A.2d 2B6 (1991). In Dixon, an accident had occurred and the operator had bloodshot eyes and had difficulty performing field sobriety tests. There was inconclusive evidence concerning the odor of alcohol; and, like in this case, the driver's speech was not slurred, his gait was not unsteady and he, like Ms. Yocum, was neither abusive nor uncooperative. The trial court's decision that reasonable grounds did not exist was affirmed. Similarly, in Commonwealth v. Shultz, Pa.Cmwlth ,360 A,2d 754 (1976) the trial court's decision favoring an operator in a "close case" on reasonable grounds was affirmed despite the occurrence of a minor accident, an odor of alcohol on the driver's breath and an unsteady gait observed by the police. The court held that the reasonable grounds issue in these cases is a mixed question of law and fact. The following language from the Shultz decision is particularly relevant given the subtle and equivocal symptoms of impairment allegedly observed in Ms. Yocum's driving, appearance and condition: President Judge Sheely April 7, 1997 Page Three The trial court, hearing the matter de novo, must, of course, pass on the credibility of the witnesses. [citation omitted) The phrase "under the influence of intoxicating liquor" includes both the well-known and early-recognizable conditions of intoxication and any other abnormal mental or physical condition resulting from indulgence in intoxicating liquor which tends to deprive the motor vehicle operator of the clearness of int.ellect and control that he or she would normally possess. 360 A.2d at 757 In this case, there iB little, if any, evidence to suggest an abnormal mental or physical condition which renders the officer's subjective belief concerning Ms, Yocum's condition objectively reasonable. The court must consider the driver's behavior and appearance are to be considered; and, the presence or absence of an odor of alcohol is not the only test of whether there was reasonable ground to believe that one was under the influence to a sufficient degree. Corry v. commonwealth, 59 Pa. Cmwlth. 324, 429 A.2d 1231 (1981). Finally, it has been held that a wide turn does not amount to the level of "erratic driving" that is necessary to justify a stop. "A quick left turn, possible speeding and a possible wide right turn do not provide reasonable grounds to believe that a defendant was operating under the inf luence. II ~.mm..QDweal th v. Plis~, 17 D&C4th 461 (Fayette county, 1992). Because of the isolated instance of arguably inept driving involving the wide left hand turn and the weak and equivocal evidence of cognitive and/or physical impairment and based upon the authorities cited, it is respectfully submitted that Your Honorable Court should hold that objectively reasonable grounds did not exist to justify the officer's belief that Ms. Yocum was driving under the influence and that her appeal from the Department's Order suspending her driving privileges pursuant to Section 1547 should be sustained. Respectfully submitted, W J.l. ~ -:{ JAJ william J. Fulton cc: George Kabusk Assistant Counsel Department of Transportation 1101 South Front street HarriSburg, PA 17104-2516 Kathy Jean Yocum lIJ., ,~'} !I"/ Iii: \' I III I ' , ~, I Pr.."ldont. ,Judqn ,';11"'111 y Apr II '/, I ')'r! i'aqo Two Uimlll'trly, t.llf.' ('o"'mC)nw,~nllll .:it.llI' th" "OUl't, I.CI l<(''''lli v. U!J'I, ''''/ Pu. Cmwlth. ~:~O. '11'\1 A..ld p,,'), ,.trlothr:t (;.h.:t piltt~rr1 1llvqlvJIH.l itrl uccidnnt c'lrld un h;~;I,I~ OVc't' E,o~H;jhl... pOHt ~h':('jd'Jnt dr'LI1KlfltJ' rl~,. holdinq l~.; t.h,1.l th(~ uttir:('t,'t"~ ::~lItljl~Cti\ll! bt~1 ic'f. th"t. ttll~ f)~HJr,1t.(lL WiH'i drivlrlcJ und(~t' till") inff~H!lIf'I,~ lIIt1fit be \.)tl.lf..'l;;tivl!ly n,!11t.HHlatlLfJ "1 liqht of t.he t;~H'r()undlnq c;n'Um::it;ln(:f.~t.;. '['tip. fi:lctf~ in th,' im~t~nt eM:n <lrfl I..t' 10"" dr"mill ic t.hdl1 in must rnJ.lortnd d(r(; i!; l 011(:. tl'h":H'O war: no UC(; idr.'nt. 'l'hi~ 111'ot,t,t,Le C"U(;C for l.hfl f:l.op 1.1,)" mel'nly il wlr.lt, lofl. tUI'11 in whil'h " t,'nnl t i ['C qrll\(od nol " I:urb, IJut II "uundn" gut.t..t'. M". Y"':l.Im h:1d "l'pat'onLly Ilt'r-j v(!rl dt th... apM.t.ml'nt r:nmplell whr.!rc nho r..", lUll!: wh':11 oncountercd by t.ho pol it'emnn. No vio13tinns 01 t.hfl vnhjcIl! corln WflrlJ witnl!ssed nut' r:hiir<jed ...,d hnr' car h..d tl'i1ve11flrl only.. :.;hort clio.tanc" at II ,;low ,.pefld tJ",fol'n pull Inq in " privAt.... pnt'kinq It)t, .she wnn not. unrnr.p':Jn~'~;Vt' nor' 'Itll.~(JUpl~'tttjV(~. Thtl u(,hn' of ,)Ic:ohol wnA not !if1vert1. Sho (1~1~:-~t1d (le I d ~;C)br 1 f~t.y tt."H.L!, deFi 1 CJr!(.!d t () d(~t,C'I.~t cognitive imp(dr'Illt'!f1L t!n(J did not drdl11Mllccllly till I lo pC~'fOl'l1l t:h(J~,,' which tflnt. phYf;ic<l1 courdll1Hllon 1111<.1 ~)1I(;1nC(!. Thr..! ~copo ot dppell;..l~ r0view ir!~, lic(.'nf)(~ Ht.I~.ipell!';ion ('.1~3e ;~:; 1imit.cd to: .. .det(!r'mln;rl<] whnt,hol'" the trilll <':OUl"t '!:I findir\(JI.~ nr'c ~-Hlpported by c;(J1llpc~tent ('vi(h'~nce, whpth(H' cr'r()t~; of Li"l'N ht1v~ tJe~ti committod, (,.ir wtlt~t.ti(',t' t.tH~ tt'J(ll court'H dt'!(;lsinFl dnmOnF:t.rHtef; ,~ m..nlfe~t, ;'1bu~;c~ of c11tK"rnt.!()n. CP.mmWJHJ.ltb v..J.!jxOtl, P,1.Cmwlth. , '>'16 JI.2d :>nt> (1'1'11). In r>-lX9.J:l, an "ec; dent. hud occutT"d .:111<1 1'.Il(! CiP"l'O to,' hild I>loo<l';hot. t'ye~' ..nd had dift.lclIlty pet"fol'lninCj I j'31rl "tJl>I"II'ty t.",,;ts, TII"l'''1 "''''; incorlclufiivc oviderH"f' cOfH'prnillq trl(: odor of alccJ~)f..)I; '-'1nd, 1 i kl' 1" this cal;e, thp drivf?ra,/,. ~.iP(!c~(:h w;)~; not !;lut'lc<J, t1i~j qhit W"~j nnt llrlfitenrly nnd he', I i kt! MI;. Ynvum, W,Jf~ ne I f:hcr n})ut: 1 ve nur uncoo(Jerllt.lve. 'J'hc'! tl'lal court's (if'(:i~'lnn tt\flt rf~"~./Jnilt"I(' qr'c)undl. clid not "xi!lt. WiH: '1ttinnf.)(L Similarly, ill ~011l111C.)m>/0..IJ;h v. _~7hlJl~, Pll,Cmwllh ,thO JI.2d 7,,~ (19'/6) I. he t.";i1J COllrt'" ueciniol1 f'lvol'inq nil UP"rlltOt. in ,1 "cl()~e <:.1:;0" l."ltl retH;()nflt.,)(~ qr'oundti wa:"j iitrl'''rn(td d(.'~'~ri te t.hQ {)cC;UrrnnCf1 ot fl mlnot" ()ccid(~f1t., (111 CJrJn,' or fllcohol 011 t.hf! drIVl~r'f: hrellt.h and an lIn:.;t"'1dy 'laj t olJsnl vl.'d I'IY th" po Ii,."). The ,'UUI.t he I d thnt. the! r(~"'I~..;()nAblE1 (Jro\lrld~.~ l~,,;~.~Uf! 111 thela~ CiHH~~:) I!; il ml)(f'U qllost~"n ~f 1<11.1 i~nrl tilcl.. The fOllow;fI') l..nqllillJe frum the ~;.h4Jt.? decis!on lS p<lrttclIlat'ly I'''lev,)/It qlv'.!l1 the t;lIlltl.. mId flquiv.'....11 symptomH of impitlt"mC!r1l'" ,111('(Jedly (Jb,;eI'Vl'd ir, M'.~. YO(:um':; dri,v;r,q, ~lppna.r,'f1(':e iHHJ (:onu it. i 011: U.l \.,., !J'/ II i : ~':J '" I' ill I'r",...lrJollt ,7\lllga Shen I Y April "/, 1'1\1'/ Paqo 'l'h rete 'l'tlfllrillL COIJ,.t, h<.wt'jn'J t.lw mllt.ter de novo, tnUl-lt., of <.'ounw, plltll..1 Oil tho r.:l'ndibi 1 j I"y "r thu wit.r\l~Sfl"'J. r,;ltlll ion oml t lllrll 'I'h.... phru",,, II undur.' t.h..! 1"r:1u"'".'e of illtoxientinq liqllOr" inclu<lllfll>oth Iho "'<.'ll-knowII and "UI'ly-rn"oqnj~uhl() condlt.ion" of lntoxict'lioll and any oth,)!" IllJnol'tnul lIIentHl or' pllYfl1<'tll condition "Q:,;ultinq tr',,", illdl.llql'n<:.1 in int<)xic:.JLinq 11'1""'1' whleh tflllds 1.0 dl!privo t.ho 11I0 lot' vehkln op""'dtnr of thl' <:leornP..'H.I of inte! I(!et Mnd ('ont.I'ol lhat he IJ!" ,;hi' wOllld normnl1y POS"P",,:, :I,il) A,?d at '/':,/ Tn this r:dsn, thl1('€ i" 1 iUle, it Ilr'Y, I'vidPllce 1.0 f""Jqn"t ,," "bnormul menLlIl or physi{~'11 c",,,tition which relldet'fl the 'Jrfl<.'er',; Hub;tH.:t i ve bpI i (~f ~.:()nc;;~"!r'nl nq MfI. YOCl..lm' ,; CO!ltU t i ()n 00 jl1ct i v(~l y ran~>onl)t)le. Till.' COUI"t. mUrit (;orl~ji(h'r:' tho dr.'lvor"~.; behflvj(Jr und nppeot'Hnco ~1r(~ to IK' C(lrl~.~ldf.'r-~d; and, thl~ pr'p$en<:e or tlhHCnc.':(~ ot rln odor ot _1Jcohol i~, not. thl! on ly t.,.:.;t of whet.her' thl'r-F.! W/I~; ret\(Jonilblo 'JrOll[1d tu h,,jiev,-, tl1Ht ono Wilt, unltor t.hf,1 lnt )Il<,'n{~" to .1 ~utt i"ient. 'lfllJren. CI.'..l.".I'Y::I... C\UllmOtl~e~WI, ~') "CI. Cmwl t.h. 1~4, 4;>q A.2d 1/.11 (1\181). rini11ly, it. hns bEH111 h01d t.11;.1t II wldo turn do,..,., II0t ClmrJllnt t.o t.he lev"l of ""r-rntic driving" th;..t j,., ""ce'''.'/Iry to jUF'Iity <.l stop. "A quick 1..,1'1 t.llr-n, fJ(')t."jt,)I' ~.r"'(~dill<.J dn<J II po,,~;itlie wj(JI! riqht t.ut." do not. pl'<lV1 d... ""M:Olli1t>II! qround" to tJ(,) ievl' U",t .. dntendant. loin" "pInal inq under the influen"o." COJI\.m"'lWElijJth_v. eJ..t5.&Q, l"l D&C4Lh ,II;.) (l-'ay"tt(, county, 1')9;>). Bec:au~o of th.., i f;olnt.cd inst'1l1cn ot tlrquiJhl y inept. dt'ivlnq inVOlving t.he widQ ,,,tt hond turn ,~nrl till! w"Clk and eqlliv(H.'lI) .,videnc" of cO'lnit.i.vli! and/or pliyr.ical imp"i rlllf,1nt. and bn"o(J lIpOll the (luthor-iti"s (:It.~d, 11. in renpecl.fully slIt.lMittt'ld that Your' HonOI'lIb],. Court ~'hOll1(111OId tlMt obj"ctively r-t.""';onHlJi" qroun(Js did not "xI"t t.o jtwtify the offic"r'F: ueliet thnt. Ms. Yocum IN",; d"ivinq unrl"J" the influnnce und t.hat. her' "l'pe,1l ft'om UH' I)"pal.tmellt'>; Or'del suspending her driVing prlvil"'leF' pUn;Uflrlt t.o Suction l'J~'1 F;hould be su~taln"d. He"[.JeCI fUlly ""hlllitt,!<.l, wJ.l. ~ 1J)y-- Wi llinm J. ~ulton ce: George Kubu~k ^ssint.ant COUrl!;pl [)t'pilf.t.melll. of 'rn) "'.lpor' t.at- ion 1101 f;out.h Ft'ont ~;I"t'c"t: HlIrrif<uurq, PA 1'I104-~":Ilh Kathy ,Jflan Yocum 4. Petitioner bel ieves and therefor avers that the suspension is improper, illegal and contrary to law for the following reasons: (a) Reasonable grounds to believe that Petitioner was operating a vehicle under the influence did not exist. (b) The stop of the vehicle operated by Petitioner was not supported by probable cause. (c) The warnings required by 75 P.S. U547(b) (2) were not adequately and correctly given. (d) The location and circumstances under which the arresting officer attempted to give the required warnings made it physically impossible for the Petitioner to accurately hear and understand the arresting officer. Several police cars were present and because the public address loudspeakers were blaring police radio broadcasts, the information being conveyed to the Petitioner concerning the breathalyzer test by the arresting officer as they stood in a parking lot was oftentimes drowned out by the ambient noise. The request and warnings were never repeated in a more benign and quiet environment, although reasonable opportunity to do so later existed. 5. petitioner respectfully reserves the right to raise additional and supplemental grounds in support of the instant appeal should such additional reasons appear following a hearing de Il.Q.Y.Q . WHEREFORE, pursuant to 75 Pa.C.S.A.B 1547(b)(3) & 1550, Petitioner respectfully prays that Your Honorable Court accept this Peti tion for Appeal and grant her an appeal from the suspension order and schedule a hearing !1~ 1lQllQ to determine whether the Order COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 NOVEMBER 16, 1996 KATHV JEAN VOCUM ~04 BRENTON STREET SHIPPENSBURG PA 17257 '~310641~001206 001 U/O'/l"~ 17~27004 02/16/1'57 Dear Motorist I As a result of your violation of Section 1547 of the Ve- hicle Code, CHEMICAL TEST REFUSAL on 10/26/1996. your driving privilege is being SUSPENDED for a period of 1 YEAR(S). In order to complY with this sanction you arlll required to return any current driver's license, learner's permit and/or te.porary driver's lir.:ense (camera card) in your possession no later than the effective date listed. If YOU cannot ce.- ply with the requirements stated above, you are required to submit a DL16LC Form or a sworn affidavit stating that you are aware of the sanction against your driving privilege. Failure to comply with this notice shall result in this Bu- reau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Vehicle Code. Although the law mandates that your driving privilege is un- der suspension even if you do not surrender your license. Cr..d,.t will not begin until all current driver's license product(s), the DL16LC Form. or . letter acknOWledging Your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE. YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The effective date of suspension is 12/21/1996, 12101 .... .................................................................... IWAHNINGI If you are convicted for driving while your license is I Isuspended. the penalties will bel not less than 90 days i.prison-I I.ent and a fl,OOO fine and an additional 1 year suspension. I ......................................*............................. !::Klfl 8, r- I~ A; " /~ , I I f,l, , ~i I ......... Q ~ oj "- ~ ~~ '1 I I ~, J , , ~~ " , , " ~ " ~ 'F , R'\ ( I. ~\ , --. Y2 ~ I. ' , " 'I , ~\) , ' ..., I,., j , ' OCT-3la-1996 15:58 FROM SUPREI'E COURT OF PA TO 87177051122 P.01/16 J-27-1996 IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant v. RONALD C. SCOTT, JR., Appellee No. 35 Eastern Diatriat Appeal Docket 1995 Appeal from the Order of the Commonwealth Court : at No. 2448 C.D. 1993, dated February 13, 1995 affirming the Order of the Court of Common Pleas of Delaware County, Civil Division, at No. 92-19645, dated September 15, 1993. A.2d , : (pa. commW:-1995) ARGUED: January 24, 1996 HR. JUSTICE CAPPY OPINION OF THE COURT DECIDED: October 30, 1996 The issue presented in the instant case is whether the COll1lllonwealth Court erred as matter of law in concluding that a motorist who had been provided with a legally sufficient O'Connell' warning, could still establish that, upon request to submit to chemical testing under the Implied Ccnsent Law, he was so confuaed about the applicability of his Miranda2 rights that he did not knowingly or consciously refuse to submit to the testing. For the 1 The phrase, "O'Connell warning" derives from the decision of this aourt in Commonwealth v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). Therein the court held that when a motorist is requested to submit to chemical tenting under the provioions of the PennsYlvania Implied Consent Law, 75 Pa.C.S. !i 1547,' the law enforcement officer making the request has a duty to explain to the motorist that the rights provided by the United States Supreme Court decision in Mirllnda v. 1\rizonf\, 384 U.S. 436 (1966), are inapplicable to a request for chemical testing under the Implied Consent Law. 2 Miranda v. Arizona, 384 U.S. 436 (1966). OCT-3e-1996 15:58 FR01 SLPREME C~T OF PA TO 87177051122 P.02/16 r~sons that follow, we find that the Commonwealth Court committed an error of law in finding that a motorist, who had been adequately apprised of his O'Connell warnings, could avoid the consequences of his refusal to submit to chemical testing as mandated by the Implied Consent Law.) The facts which prompted the presen.t appeal can be briefly summarized. On October 9, 1992, Officer Jerome J. Cartmell of the Tredyffrin Township Police Department observed appellee's vehicle proceed at a speed in excess of the posted speed limit, Upon stopping the vehicle the officer noticed that appellee eXhibited signs. of intoxication, his speech was slurred, his eyes were glassy, he smelled of alcohol, and he swayed when he walked. Officer Cartmell asked appellee to perform field sobriety tests. Appellee was unable to perform the tests. Officer Cartmell then placed appellee under arrest for driving under the influence of alcohol in violation of 75 Fa.S.C. ~3731. Officer Cartmell transported appellee to Paoli Memorial Hospital for a blood alcohol test. At the hospital Officer 3 Although the case comes before us as an appeal from the decision of the COmmonwealth Court, that oourt adopted the findings and rationale of the trial aourt in reaching its decision. Therefore within the body of this opinion we discuss the findings as originally made by the trial court. OCT-30-1996 15:58 FRCX1 5lIPRE1'F. CCLRT IT rn III 1J'1I7'705 11;>;1 P, 03/ I (, cartmell advined llppolleo of the rmp1 i...ll Conllunt L/lW4 and ~oad to him the following warning: As a police officllr, it 111 my duty .to explnln tCl you thllt the aonstitutional riqhtu duo you In n criminal prosecution as sot forth in tho Miranda decl"ion do not apply to chemical testing undor tho 1111pl ied consent law. Specitically, you do not havo a riqht to oonBult with n lawyer or nnyonlJ elno pdor to tnking tho chllmical tont. nor do you have thu right to rom", in Il i 1 unt when 1\ police officer asks you to nubmit to a chumicnl tellt. Your continued requont to speak t;a I' 1 awy.r or unyollu ,1110 4 The relevant port.ion of t.he ImpJ It,d CCJIl'l(lnt 1,IlW found at 75 Pa.C.S. ~1547(a) and (h), provides llll ful1ow"1 Ii 1547. Chemical testinq to determine l.IlIount of alcohol or controlled substance. (a) Goneral rule. - Any poraon whu ddvnn, oporates or 1. in actual physical control of Lhe movomont of 11 motor vehiclo in thin Commonweal th oshaU be dClomed to havlI 9 I vun connClnt to one or more chemical tests of broath, blood or \It-ine for tho purpollo of determining the alcoholic content of' blood I'll' the prl.'lIenc:o of u controlled aubstanc<1 it il pol ice officer hllll n'lIson/lhle groundfi to believe the person to havo been driving, opt'rlltln4 or in /lctuul physical control uf tho muvement. of u mot.ur vehlr.ll.-: (1) while undo!" the influonce of 1I1coho1 or A controlled substance or bothl or (2) which was involvlld in /In C1C:cJdont in whic:h t.he operator or passenger of any vehi cl 0 illvo1 vorl ur 1I p'ldClutrion roquired treatment at a medicnl fucility Dr wan killed. (b) Suspension tor refusal. - (1) If any person pll1ced undllr lIrn'l/lt. for tl viulation of section 3731 (rolat.ing to drlvlnrJ undllt' lntlut'lll(~l) of IIlcohol or controlled subDt~nce) in r~quest~d t.o ~ubmit. to chemical testing and refune.. to do so, the tellting uhuH lloL be cOllllucted but upon notice by the pol i cu oft icel', thCl depar'lmcnt f1h/lll suepom' the operating prlvill!';/<J o! the perllon tor II pt'rlod or: 12 monthn. (2) It Ilhllll be th" duty of tlw pol ico oHicor to inform the person that the pClr/lnn's opero\tin'.l pr.iviloge wi 11 be Ilullponded upon rofunal to illulJmlt to chftmica1 tefltlll<J, (3) Any person whose opOl'at,inrJ privilege jn uUllIpendnd und.er the prov.lsion~ of this ,,(,c:t.lon mhall huve tho uume rIght ot appeal as prClV idod tor" ill CUl1en of ~Iuspnrmiun tor ot.her reanuns. lJ-n-l!J!J(,] - ) OCT-30-1996 15:59 FRCtl Sl..PREME Ca.RT IF PA TO 87177051122 P.04/16 after this explanation ia giv~n, or your &ilence when asked to submit to a chemical test, will be considered as a refusal of the chemical test subject.ing you to the suspension of your driving privilegll. [See Reproduced Record at 37a]. .. Even after being given these warnings, appellee refused to submit to the blood test and continued to request to speak with his attorney. Officer Cartmell then told appellee that because this was a drunk driving case he was not entitled to consult with an attorney at that time. Appellee continued to refuse to submit to the blood test until he was first afforded the opportunity to speak with counsel. Officer cartmell then transported appellee to the Tredytfin Township Police station. At the police station appellee was again read the above cited warnings. Appellee again r.efused to submit to chemical testing without first consulting his attorney. Another officer, Officer Marc A. Reider, explained the ~Connell warnings once again to appellee, reiterating that he was not entitl.ed to speak to counsel before the blood test. Appellee continued to refuse and to demand that he see his attorney. At that point a refusal was noted. As a result, the Department of Transportation, Bureau of Driver Licensing (DOT), notified appellee that his driving privileges would be suspended for one year. Appellee appealed the suspension to the Court of common Pleas. The trial court rescinded the suspension finding that because appellee believed he was entitleC\ to consult with an attorney, he did not knowingly or consciously refuse to sUbmit to the blood test. The trial court reasoned that although appellee was properly provided with [3-27-1996) - 4 OCT-30-1996 15:59 FRCtl 5lFRE/'E Ca.RT IF PA TO 07 1 7?051 122 P.05/16 o~Connell warnings, whon Officer cartmoll then told appellee that "beoauae this is a drunk drivinq 011110 you do not havo the right to counsel," that misstatement ot lllw incn/lflod i1llpelleo'D confusion, thus, vitiating the properly givon ~nnllll wllrnlngs. DOT appealed the 'rUlltliLlUlon ot: tho lIullpcnlSion to the Commonwelllth Court. Thu Commonwealth Court attirrned, Illlreeing with the trial court t.hat uppellaQ'f1 confulllon Willi jUfltit'icd following Officer Cartmell'. miflflhtemont re~Qrding IIppellec's right to counsel. AllowanclI of llppeol WilD grlllll.llc.1 to re.view whether, as a matter of law, a foet rindor ill tn'o t.o find thllt a refusal is not knowing where tho pol j 110 uff lClu' hllll ndflqulltoly complied with his duty under 0' ConrUU.l . :In reviowing (\ d...cilllon of the trilll court in a license suspension case, thfl ntnnlJnt"CI ot ruv low of on appellate court is to determine if thn fllCtUll! findinC'Ja of the trial court are supported by compotent evldence, Gnd whother tho trlal court committed an error of law or all I1l.Juuo of dlllcutlon. Q.!.Connell, 521 Pa. at 242, 555 A.2c1 at U7~. ouotltlonll of credibility are for the trial court. .liL. lIot'orll /I 11oo/lno nUDponslon will be sustained DOT must ollt.abl.luh: 'l"hat the driver involved: (1) was arrested tor dr.ivinq undftr thl! influencl! of alcohol; (~) WAll I1l1ko\1 to lIubmi t to a breathalyzer te.t I (3) refu..d to do so; and (4) was Rpcc.ltieally wurned that a refusal would re.ult in the revocation of his driver's licen... Onca lOOT) nleotn itn burden, it is the drivar'f1 ronponnibility to prove that he was Jlut cllllablo or making a knowing and conscious ratun~l tn t~ko tho tost. [J-2'1-1996) - 5 OCT-30-1996 15:59 FRO'1 SUPREME COJRT OF PA TO 87177051122 P.06/16 Id. at 248, 555 A.2d at 876. The trial court herein determined that DOT did not meet its burden of proof. (b'. ct. slip op. at 9). The trial court premised its ruling upon its finding that appellee believed he had a right to speak with an attorney and that his right to do 50 was being denied. The trial court found the testimony of appellee on this point to be credible. The trial court in so ruling committed an error of law. As set forth above, DOT's burden in a license suspension case is met once it has established that the motorist was arrested for driving under the influence of alcohol: the motorist was asked to submit to chemical testing for blood alcohol: the motorist refused to submit to chemical testing: and the motorist was specif.ically warned that a refusal would result in the revocation of his operating privileges. O'Connell, supra. In finding that DOT did not meet its burden the trial court focused upon the fourth prong of the above stated test: the motorist was specifically warned that a refusal would result in the revocation of his operating privileges. Although the trial court did find that pr'oper O'Connell warnings were given, the court then went on to conclude that when the officer followed the first O'Connell warning with the statement: "you do not have the right to an attorney because this is a drunk driving case," the effect of the previous proper warning was dissipated. The trial court ignored the fact that proper O'ConnlU...! warnings were givcn to appellee two more times following this one misstatcment by Officer [J-27-1996] - 6 OCT-30-1996 15:59 FROM SLf'REl'E CCLlRT IF PA TO 8717?OSl12~ P.07/16 Cartmell. To find that Officer Cartmell's misstatement, sandwiched in betwQon three properly worded O'Connell warnings, would have the devastating offect of nullifying all the correct statements of law provided to appellee, is a conclusion unjustified on the basis of this record. The pertinent portion of appellee's testimony is as follows: hI was told that because I was arrested for drunk drivin~ I was not allowed to have an attorney at this time." (N.T. 51) At page 52: " . . . .. "Q. And in that situation, were you -- what was going through your mind, or what were your questions at that point? "A. Well, I felt, first of all, that I should have had a lawyer by my side, and since I did not, I felt very weird, because I felt like this wasn't right. It wasn't going correctly. I felt that -- well, I thought that I was entitled to an attorney. "Q. Have you had any schooling in law? "A. Yeah, a little bit. "Q. Okay. "A. And my understanding is you have the right to an attorney, and anything can be held against yoU in the court of law and all that. After that . . . " . . .. .. At page 68: " "Q. So you were aware at the hospital that if you did not take the test this is what was going to happen to you, is that correct? "A. I was a~;~ that they wer<il tellinq roe that. I Si~d not believe that. I didn' t think that that colJl.c;! reallv haop~ (emphasis supplied). As the testimony of appellee reveals, it was not th,is misstate~ent that created the problem: rather, appellee refused to believe the substance of the o'Connell warnings. Thus, c~ntrary to the conclusion of the trial court, DOT satisfied its burden of proof, including full compliance with the fourth element as required in ~QD~. [J-27-1996j - 7 OCT-30-19'36 16: 00 FROM SUPREI"'E Cct.RT OF PR TO 87177051122 P.08/16 The trial court compounded its error by then going on to conclude that DOT tailed to prove that appellee made a knowing and conscious refusal to submit to chemical testing. However, it was appellee's burden, not OO'1"s burden, to establish that he was "nn.t caDable, of making a knowing and conscious refusal to take the test. II 9..' Connell, supra. [emphasis suppl ied] . In essence, the trial court determined that although the officers had advised appellee of his O'C:onnell warnings, as appellee l:efuBed to believ~l the officers, his subsequent refusal to submit to chelDical testing was not a knowing and conscious refusal. A motorist's subjective beliefs are an insufficient justification for refusing to comply with the mandates of the Implied Consent I.aw. Retusing to believe the substance of the O'Connell warnings as given docs not render the motorist incaoable of making a knowing and conscious decision regarding chemical testing. As this court recognized in 0' Connell, a motorist is incapable of making a knowing and conscious refusal when he is unaware that his right to remain silent and his right to consult with an attorney are not applicable to the provisions of the Implied Consent Law. o'conn~l, 521 Pa. at 252, 555 A.2d at 877. Plainly stated, in the typo of situations whore this issue arises, we have a police officer dealing with a motorist who is suspected of being inebriated to tho point that hill e.bility to drive sa1'ely is being questioned. Obviously, whon a motorist manifests intoxication to such a degree that. an off icer reasonably bol ieves it is necessary to place the motorist. under llrrest and e.~lk that the motorist submit [3-27-199(,] - 8 OCT-30-1996 16:00 FR01 Sl.PREI'E COURT IF PA TO 87177051122 P.09/16 to a chemical sObriety test, it is reasonable to assume that the motorist may b~ somewhat confused. The source of confusion for the motorist lies in the fact that the Implied Consent Law is civil in nature and deals only with the motorist's continued privilege of having an operator's license. Driving in Pennsylvania is a civil privilege conferred on state residents who meet the necessary qualifications. 75 Pa.C.S. !i 1501. Under the terms of the Implied Consent LaW, one of the necessary qualifications to continuing to hold that privilege is that a motorist must submit to chemical sobriety testing when reque.sted to do so, in accordance with the prerequisites of the Implied Consent Law, by an lluthorized law enforcement of!icer. The obligation to submit to testing is related specifically to the motorist's continued enjoyment of the privilege of maintaining his operator's license. 75 Pa.C.S. S 1547(b). The problem for most motorists is that the chemical sobriety test has the potential of revealing evidence that links the motorist to criminal wrongdoing, driving while under the influence (DUl). ~ 75 Pa.C.S. S 3731. Once the motorist has been placed under arrest, the arresting officer normally provides Min.ru;!A warnings relevant to the criminal offense of DUI. So, armed with this knowledge of his rights, the motorist may reasonably assume he has the right to consult with an attorney before the chemical testing, or to refuse 'to submit to the testing as an exercise of his right to remain silent. The fact that tho sanctions imposed by the Implied Consent Law are wholly separate and unrelated to the [J-27-1996) - 9 OCT-3<1-1996 16:00 FROM Sl..PREt'E CCLRT IF PA TO 87177051122 P.10/16 consequencos of a criminal DUl prooecution is a nuance of the law that can readily escape the average motorist, let alone ono Buspected of being inebriated to the degree wJ:1ich prompted the officer to request that he submit to the test. Thus, the motorist faces the dilemma of submittinq to the test and thereby "proving" that he is in fact driving under the influence, or refusing the test and facing the absolute penalty of losing his driver's license for one year while still facing criminal prosecution. Reason and justice dictate that the motorist should be advised before making his decision that the loss of his driving privileges is a matter controlled completely by the Implied Consent Law and that his Miranda rights are not applicable to the decision to submit to chemical sobriety testing. As this court clearly stated in 0' Connell, the police have an affirmative duty to instruct the arrested motorist that his Miranda rights may not be exercised prior to SUbmitting to the chemical sobriety test: An arrestee is entitled to this information so that his choice to take a breathalyzer test can be knowing and conscious and we believe that requiring the police to qualify the extent of the right to counsel is neither onerous nor will it unnecessarily delay the taking of the test. Since the course of conduct of the police creates the confusion in these cases, it is appropriate to place the duty on them to clarify the extent of the right of c 0 u n s e 1 when aSking arrestees to take breathalyzer tests thereby i.nsuring that those arrestees who indicate their confusion over their Miranda rightB arc not being misled into making uninformed and unknowing decisions to take the test. [.7-27-1996] - 10 OCT-30-1996 16:01 FRO'! Slf'REI'E CaJRT IF PA TO 87177051122 P.11/16 ~, at 252-3, 555 A.2d at 878. Since o'conn&ll, this court has struggled with the problem of when O'connell warnings must be provided and what those warnings must specificallY contain. Recentl.y, in commonwealth v. Inara)'11 and Frain, 538 Pa. 236, 648 A.2d 285 (1994), this court catalogued in great detail our litany of rulings on this issue. In an effort to finally settle this question we will here limit our discussion bY briefly setting out the holding in each of our cases as they have developed from o'connell through Inoram. Beginning with o'connell, we stated that where an arrestee is confu~ed about his right to speak with counselor remain silent, as explained in the Miranda warnings provided by the arresting officer when asked to submit to a chemical sobriety test, the officer must advise the arrestee that Miranda rights do not apply to chemical testing. In commonwealth v. McFadden, 522 pa. 100, 559 A.2d 924 (1989), the court held that the arrestee does not need to express his confusion regarding Miranda warnings and the request to submit to chemical testing. Rather, when McFadden requested the right to speak to his attorney before submitting to the test, the officers at that point had an affirmative duty to advise him that the right to speak to his attorney did not apply to the request to submit to the breathalyzer test. ~. at 102, 559 A.2d at 925. Following our decision in McFadden, this court. in commonwealtl'l v. Danforth, 530 Pa. 327, 608 A.2d 1044 (1992), moved away from the motorist's confusion as thE: triggering point at which the arresting officer must supply the motori.lt with Q-'_!;QJ\nell Warnings. In an [J-27-1996] - 11 ocr-30-1996 16'01 FR01 SlFREI"E Co..RT OF PA TO 87177051122 P.12/16 effort to clarity the obligations of the arresting officor in situations where n chomical sobriety test is requested, the Court declared that in all situations whcrc Miranda rights have been given prior to chemical tcsting: The police have an affirmative duty to not only inform the arrestee that refusal to submit to chemical testing will result in susponsion of his driving privileges, but also that the arrestee does not have the right to speak with an attorney or anyone else in connection with his decision as to whether he will sUbmit to chemical testing. .xg., at 333, 608 A.2d at 1046. Thus, with our decision in Danforth, the factual determination of whether the arrestee is confused after receiving Mirandq warnings was eliminated. A brightline rule was established: whenever Miranda warnings are given, they must be followed by O'Connell Warnings. In ComIDQ~ealth v. Mccann, 529 Pa. 444, 604 A.2d 1027 (1992), the Court expanded the decision in .~. In Mccann, the motorist had not been advised of his Miranda rights, yet had requested to speak with counsel before taking a breathalyzer test. The court held that O'connell warnings were required under those circumstances. Thus, with McCann, the arresting officer is now required to give o'Connell warnings whether or not Miranda warnings have been given before requesting a motorist to submit to chemical sobriety testing.6 6 The decision in Mg,Cann is logical in light. of the common knowledge of the average citizen that upon arrest the arrestee is entitled to counsel. Thus, the fact that the arrestee was not specifically advised of his Miranda rights cannot logically be the trigger for O'Connell war.nings given the common awareness of the average citizen of his "TV version of Miranda rights." [J-27-1996j - 12 OCT-30-19'36 16'1111 FRO'1 SUPREI'E CCLI'T OF PA TO 8717'Xl51122 P.13.116 Raving concludec1 with the decision in McCann that the ramifications of tho Implied consent Law are sufficient to r4lquire ~pnneli warnings, the Court next turned to a discussion of the adequacy of the actual warnings to be provided. In ~ommonwealth v. Inaram & Frain, 538 Fa. 236, 648 A.2d 205 (1994), this court held that 9'connell warnings arc sufficient if they include the following information: First, a motorist must be inforned that his driving privileges will be suspended for one year if he refuses chemical testing I second, the motorist must be informed that his ~iranda rights do not apply to chemical testing. ~., at 256, 648 A.2d at 294-95 (footnote omltted).7 From the above lineage of decisions beginning with o'connell and coming through to Inaram, we have established the following principles: 1) the provisions of the Implied consent LaW which require a motorist to submit to chemical sobriety testing or face the temporary loss of driving privileges havc the potential to create confusion for the lIlotorist: 2) in order to guarantee that a motorist makes a knowing and conscious decision on whether to submit to testing or refuse and accept the consequence of losing his driving privileges, the police must advise the motorist that in making this decision, he does not have tho right to speak with counsel, or anyone else, before submitting to chemical testing, and further, if the motorist exercises his right to remain silent as a basis for refusing to submit to testing, it will be considered a 7 In Inaram, this court specifically approved of both sets of warnings given in each of those cases which had been com;olldated therein for our review. (J-2t-199u] - 13 OCT-30-1996 16:01 FRCtl SlPRHE CCLRT IF PA TO 87177051122 P.14/16 refusal and he will Buffer the loss of his driving privileges; 3) the duty of the officor to provide the O'Connell warnings as described herein is triggered by the officer's request that the motorist submit to chcmical sobriety testing, whether or not the motorist haa first becn advised of his Miranda rights. ThUD, WC now hold, whenever u motorist has been requested to submit to chemical sobriety testing the motorist must be provided O'ConnelJ. warnings regardle$s of whether Miranda warnings have been given, and, regardless of whether the motorist exhibits confusion concerning his rights when asked to submit to chemical sobriety testing. Once an officer provides O'Connell warnings to a motorist, the officer has donc all t.hat is legally required to ensure that the motorist has been fully advised of the consequences of refusing to submit to chemical testing. By requiring the officer to advise the motorist that his ~nd~ rights are not applicable to the request to submit to chemical sobriety testing, the officer can be assured that he has done everything possible to assist the motorist in making an informed decision consistont with that motorist's rights as articulated by the Constitution and by the Implied Consent Law. Placing this additional burden on law enfOl'cement in order to attempt to insure that. a motorist if; making a knowledgeable and informed decision is certainly reasonable and justified given the potential for confusion in circumstancc!! such a!! these. Furthermore, the additional burden of requiring O'ConrLc...u Warnings, whenever an officer requests a nlotoriflt. to f1ubmit to chemical (J-27-l996] - 14 OCT-30-1996 16:02 FRCtl Sl..PREt"E COJ<T ()= PA TO 87177051122 P.15/16 testing, is ~inor when balanced against the obvious need to verify that the motorist ill fully aware of his rightEl and responsibilities when being asked to submit to the testing. As previously stated, the trial court erred in finding that Officer Cartmell's misstatement that "because this is a drunk driving case you are not entitled to an attorney" was of such magnitude that it voided the preceding and subsequent, thorough and legally correct ~onnell warnings. To the contrary, appellee herein testified that he was clearly aware of what the officers had explained to him regarding the right to counsel and its inapplicability to chemical testing. Appellee just "didn't believe it." After an officer has fully and thoroughly complied with his obligations in accordance with o'connell, the motorist may not validly continue to refuse chemical testing by Claiming that he did not believe the O'Connell warnings. Appellee's subjective belief, when faced with a correct statement of his rights, is insufficient to support II legal conclusion that under such circumstances he was not capable of making a knowing and conscious refusal.! I O'Connell warnings, a refusal to submit to chemical testing under I Accordingly, once a motorist has been properly advised of his of the Implied Consent Law will not be excused as the terms 8 The situation at bar is completely distinguishable from the facts before the court in Commonwealth v. Frain, 538 Pa. 236, 64B A.2d 285 (l994). In ~'rain, the trial court had found that the motorist was only told that he did not have the option of speaking to an attorney before SUbmitting to a blood alcohol test. The trial court did not find credible the officer's testimony that he had advised the motorist of hie O'Connell warnings. In tho inntant case, appellee was thoroughly advised pursuant to ~C~nnell on at least threo separate occasions. (J~27-19!l6] - 15 MAR 11 ' 97 138: 03P~1 RADNOR POLlCE DEPT P.2 Radnor Township Police Department . Driving Under the Influence Arrests Police Offlcers shall give the following warnings to every D U I defendanl who Is asked to submit to a chemica/lest 01 their breath, blood or urine to determine blood alcohol content: . 1, Please be advlsed1hat you are now under arrest for driving under the Inftuence 01 alcohol ora controlled subslance pursuant to section 3731 of the Vehicle Code. 2, I am requesting thaI you submit 10 a chemical test of br't.aJ-h '" __(~!ealh, _~loOd, or urine. Offlcor chooses Ihe chemical test.) . 3. It Is my dUlY, as a police officer, tQ inform you that if you refuse to ' submit to the chemical test, your driving privilego will be sU!lpended for a period of one year. 4. The constitutional rights you have as a criminal defendant, commonly known as the Miranda rights, including the right to speak wilh a lawyer and the righl to remain silent, apply only 10 criminal prosecutions and do nol apply 10 the chemlcallllsling procedure under Pennsylvania's '.' Implied Consont Law, Which is a civil, nol criminal proceeding. 5. You have no righl to speak 10 a lawyer, or anyone else, b9fore laking the chemical lest requested by the police oHicor nor do you have a righl to remain silent when asked by tho police of near 10 submit to the chemical test. Unless you agree 10 submil to Ihe test roquesled by the police officer your conduct will be deemed 10 be a refusal and your , operating privilege will be suspended lor one year. 6. Your refusal to submit to chemical testing undor the Implied Consent Law may be inlroducod into evidence in a criminal prosecuiion for driving while under the influence of alcohol or a control/ed substance. Defendant: Arresting Officer: k'l1rllY ,J~~rl y"CVlY) Name (type I pnnl) Of'" 1\1I/(//11(; l., A, J.MJl?IIIt:-, \Jr'-.. ..Name (type I pnnt) ... ).., ,f (.I..'UI~ (":" !.,/ ()(: '.L oi,\ 'S1gnaturr- S v ~. AAGJ:Ja ~c-f.1L. I alure ,.' 26 oa' 7~. Dale As per the Chiof Counsel lor tho Ponnsylvania Departmenl 01 Transportation, April 21, '992, reforonce 01 Howard Yerusalim. p, E. Secretary of Transportali , . . Commonwealth' . EXHIBIT I F' L f ( >. ,... c.r, ~ !t i.:, ,~ ..: :-~ ')f ::; .. f' CI.. ::.i I.. a) :,,.j L , ! .. , (,:,' (l;: i (I] rtJ... '''- ,. -..: 11,. ,... ,l (.) C' .) COMMONWEALTH OF PENNSYLVANIA I DEPARTMENT OF TRANSPORTATION, I BUREAU OF DRIVER LICENSING I I V. I : KATHY JEAN YOCUM I I : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-6770 CIVIL TERM CIVIL ACTION - LAW IN REI LICENSE SUSPENSION IJrORE SHEELY. P.JL OPINION AND ORDER or COURT A hearing was held on March 31, 1997, regarding petitioner's appeal of her driver's license suspension. The Department of Transportation (DOT) presented testimony from Officer Michael A. Hajdak and offered one exhibit into evidence. We also heard testimony from petitioner. At the close of the hearing, DOT gave the Court eeveral cases for consideration, and petitioner was given one week to submit cases for our review. flHQINGS OF FACT l. Petitioner is a forty year old female who resides in Shippensburg and also maintains a part-time residence in Delaware County due to her employment in Philadelphia au a paralegal. 2. On October 26, 1996, at approximately 2:35 a.m. Officer Hajdak of the Radnor Township Police, Delaware County, while patrolling west on Ivan Avenue, observed the right front wheel of petitioner's Camry strike a curved concrete drainage ditch ae she widely negotiated a left hand turn. Petitioner then continued to drive at a speed lower than the posted 25 mph speed limit. NO. 96.6770 CIVIL TERM 3. Officer Hajdak proceeded to follow petitioner about l/lO of a mile to an apartment complex where petitioner pulled into a parking area, and continued through the lot. 4. Officer Hajdak activated his lights, and petitioner stopped her vehicle. When the officer approached her car, he could detect the smell of alcohol. 5. When Officer Hajdak asked her where she was coming from, she did not answer, but her passenger stated that they had come from a friend's house. When the officer asked her for her license and registration, petitioner produced them, although he felt that petitioner's movements were awkward and sluggish, and she appeared highly nervous; her demeanor continued to be nervous throughout the entire episode. 6. Petitioner was then asked to step out of the car for a field sobriety test, and she complied. The officer could smell alcohol on her breath, although not severe. 7. Officer Hajdak asked petitioner to complete several tests, for instance, he requested her to recite the alphabet from L through Y and count backwards from 67-53. petitioner repeated the letters L through Z instead of Y, and counted back from 67 accurately, but continued counting past 53 until the officer told her to stop. The officer testified that one of the purposes of this test is to determine if the dr.iver is cognitive enough to follow directions. petitioner was able to complete the fingertip coordination test without difficulty. However, when requested to 2 NO. 96-6770 CIVIL TERM walk eight (8) steps heel to toe, petitioner side stepped a few times. Additionally, when petitioner was told to stand on one foot and point her toe, she got off balance twice and had to touch her foot down. The officer further noted that petitioner asked him to repeat directions several times durlng the testing, but did acknowledge that his walkie-talkie wae cackling with radio broadcasts at this time. He further acknowledged that the parking lot was not lined and therefore petiti.oner did not have a frame of reference for walking a straight line. 8. Petitioner did not exhibit some of the signs indicative of driving under the influence, for. example, she did not slur her speech, or stumble or raise her hands in order to keep balance. 9. Petitioner was placed under arrest and transported to the station but she was not yet given her Miranda warnings. lO. While at the station, Officer Hajdak handed petitioner a copy of a form utilized by the Radnor Township Police Department for. DUI arrests, and read the form to her. The form states, among other things, the following: . . 3. It is my duty, as a police office!:', to inform you that if you refuse to oubmit to the chemical test, your driving privilege will be suspended for a period of one year. 4. The constitutional rights you have as a criminal defendant, commonly known as the Miranda rights, including the right to speak with a lawyer and the right to remain silent, apply only to criminal prosecutions and do not apply to the chemical testing procedure under Pennsylvania's Impled Consent Law, 3 NO. 96-6770 CIVIL TERM which is a civil, not criminal proceeding. 11. Petitioner asked to spoak with an attorney. She at some point signed the form but did not give consent to the breath test. Instead, she again asked to speak with an attorney. 12. There are no pending criminal proceedings against petitioner. 13. Petitioner testified that she had one beer. DISCUSSION Although petitioner has presented four issues in support of her appeal, two need little attention. First, her claim that the stop was not supported by probable cause is disposed of by the case of Commonwealth v. Malizia, 152 Pa.Commw. 57, 618 A.2d l09l (l992)(DOT's burden does not require a showing of probable cause). Additionally, the facts did not bear out petitioner's last claim that "[t]he location and circumstances under which the arresting officer attempted to give the required warnings made it physically impossible for [p]etitioner to accurately hear and understand the arresting officer and "[t]he request and warnings were never repeated in a more benign and quiet environment." We now address the remaining issues. Petitioner avers that reasonable grounds that she was operating a vehicle under the influence did not exist. She further alleges that the warnings required by 75 P.S. S l547(b)(2) were not adequately and correctly given. In order to decide petitioner'S appeal, the Court must 4 NO. 96-6770 CIVIL TBRM decide if DOT has met its burden in showing (l) the motorist was arrestej for driving under the influence by an officer who had reasonable grounds to believe that the motorist was operating a motor vehicle while under the influence of alcohol or a controlled substance; (2) the police requested the motorist to submit to a chemical test; and (3) the motorist refused to do so. Malizio, 152 Pa.Commw. at 62, 618 A.2d at 1094. The Commonwealth Court has stated the following regarding the test for reasonable grounds: The test is not very demanding. We note initially for 'reasonable grounds' to exist, the police officer need not be correct in his belief that the motorist had been driving while intoxicated. We arB dealing here with the authority to request a person to submit to a chemical test and not with the admission into evidence of the result of such test. Commonwealth v. Dreisbach, 26 Pa.Commw. 201, 204-205, 363 A,2d 870, 872 (1976) (footnotes omitted), cited in Malizio, 152 Pa.Commw. at 63, 618 A.2d at l094. The test has been explained from the viewpoint of the reasonable person in the position of the arresting officer: from the facts and circumstances as they appeared at the time, if the officer could have concluded that the driver was operating a vehicle while under the influence of alcohol or a controlled substance, reasonable grounds exist. McCallum v. Commonwealth, 140 Pa.Commw. 3l7, 320, 592 1I.2d 820, 822 (l991) (citation omitted). In addition, the driver must be specifically warned that a refusal will result in the revocation of the driver'S licenss. 5 NO. 96-6770 CIVIL TERM Commonwealth v. O'Connell, 521 Pa. 242, 248-249, 555 A.2d 873, 876 (1989). Whenever a driver has been requested to submit to a chemical sobriety test, the foregoing O'Connell warnings must be provided, "regardless of whether Miranda warnings have been given, and, regardless of whether the motorist exhibits confusion concerning his rights when asked to submit to chemical sobriety testing." Commonwealth v. Scott, ___ A.2d ___, (Pa.Commw. 1995). Once the officer provides the warnings, he has done all that is legally required. rd. Of course, credibility issues remain in the domain of the trial court. O'Connell, 52l Pa. 242, 248, 555 A.2d 873, 875 (l989) Turning to petitioner's first argument concerning reasonable grounds to believe that petitioner was driving under the influence, this Court believes the standard has been met. As set forth above, the arresting officer did not have to comply with the stringent test for probable cause for this civil matter. He saw petitioner strike the ditch and appear to drive what he believed in a manner overly cautious. The attention of Officer Hajdak was also alerted when petitioner pulled of into the apartment complex, in view of his learning during training that drivers will sometimes attempt to evade the police in such a manner. He smelled alcohol when he approached the car, and petitioner did not respond directly to his questions, which could indicate to a reasonable person in the shoes of a police officer that she did not answer because she did not want him to smell 6 . ' NO. 96-6770 CIVIL TERM ~lcohol on her bre~th. Her movemente appe~red ~wkw~rd ~nd sluggish. Her nervousness, although ~lone would not be satisfactory to meet the standard, could also be viewed as an indicator that petitioner may be intoxicated, in consideration of the officer's other observations. Moreover, petitioner did not perform the fiald test to the officer's satisfaction. Thus, we will not grant petitioner's ~ppe~l on this basis. With respect to the alleged improper warnings, we have accepted as true the testimony of Officer Hajdak that he read to petitioner the required O'Connell warninge. Furthermore, petitioner never denied that the warninge had been read but only stated that she could not remember them being read. Her concern was that she wished to speak with an attorney but as the Pennsylvania Supreme Court recently emphasized in Scott, supra, the officer's responsibility is complete once he has provided the warnings. It seems obvious from the testimony Ms. Yocum did not exhibit some of the usual signs of one under the influence. Also, her testimony as to limited drinking would seem to indic~te she would have successfully passed the breath test had she taken it. However, I believe the evidence requires that the suspension must be upheld and her appeal is denied. 7