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HomeMy WebLinkAbout98-06423 ! ,,) '+-' -I q:' \II ~I < o ~I ~! ~l ~1 i J '. ~ \..'" O't" -..,,< ''JI'.. V'i:' Q,! " c:t U I I ~i ~! -:--1 ~I .~ \01 ~I ~I ;:,...1 ....j ~ 1:3'1 ~. PROCEDURAL HISTORY On September 19, 1998, ,'\prJf:11ant "dS arrested and asked to submit to a chemical test to determine tLe quantity of alcohol in his blood. Appellant was taken to the Carlisle Hospital where he was given a portion of his O'Connell warnings and asked to submit to a blood test. Appellant refused to submit to the blood test and instead offered to take any other chemical test, including urine or breath. On October 17, 1998 the Pennsylvania Department of Transportation, Bureau of Licensing Division suspended Appellant's operator's license. On November 12, 1998, Appellant filed a timely Appeal with the Cumberland County Court of Common Pleas. On January 25, 1999 the underlining DUI charge was withdrawn and a charge of public drunkenness was entered in front of Cumberland County District Justice Paula Correal. Appellant subsequently entered a guilty plea to the charge of public drunkenness. On February 8, 1999 a hearing was held on the matter of the Appellant's Appeal from the driver's license suspension. This brief springs from that hearing. ARGUMENT 1. APPELLANT WAS NOT PROVIDED ADEQUATE O'CONNELL WARNINGS AND HIS REFUSAL OF THE BLOOD TEST WAS NEITHER KNOWINGLY OR INTELLIGENTLY GIVEN, AND THEREFORE, THE SUSPENSION OF HIS DRIVING PRIVILEGE IS IN CONTRAVENTION TO THE LAW. In the case sub judice it is clear that the officer did not read 1 the warning contdirl(!rj in tt:.. D':'p'1rtm'-~nt ,)f Trdnsporta.tion' s form DL 26 to the Appellant. In fdCt, the of fic"r totally skipped the portion of the form which indicates thdt the officer chooses the test. The Appellilr't in thIS CdS(', "ccordinq to the officer's testimony, offered several times to submit to a different chemical test, He was denied an opportunity to do so and this was marked on Pennsylvania Department of Transportation's form DL 26 by the officer as a refusal, The Conunonwealth has the burden of Showing that the Appellant was given a opportunity to make a knowing and intelligent refusal. In the case of Joon Ho Yoon v. Commonwea 1 th of Pennsvl vania. Department of Transportation. Bureau 718 A.2d 386 (Pa.Cmwlth., 1998), the Court held that: In view of the Department's clear burden of proving that it informed the licensee of the consequences of a refusal to submi t the chemical testing and the lengthy suspension imposed on a licensee who refused to consent is not an unreasonable burden to require a police officer to verbally inform a licensee of the consequences of a refusal. We agree with the Trial Court conclusion that the licensee was not adequately informed of the consequences of a refusal when the police officer merely provided licensee with a form rather than reading the warnings to him. This case is directly analogous to Yoon. While in Yoon, the issue was consequences, in the case sub Judice, the issue was the failure to convey to the Appellant, the officer's right to choose the test. Because Appellant could reasonably believe that he was not refusing 2 a te!lt d~) hf~ did not kno..... thdt ttll:! 01: i'::-'I,'[ ('(lI.Jld pii~k tt}l~ tf~:;t, h(~, like the App':"lldnt in '(non ......]~-' iflcdpdbl.~. of !ndkinlJ ,) kno....'ilHJ dna intolligl;>nt refll~3dl. Thf.'n~t(lr,!, ~hi~; I.>Jllrt. Ulll:-;l rind in td'JUI of the ^ppoll.1.nt d.lid ~;t~t d~l(l(~ ttle Depdrtna,nlt of Transportation':3 license suspension. 2. APPELLANT COULD NOT MAKE A KNOWING AND INTELLIGENT REFUSAL TO SUBMIT TO THE CHEMICAL TEST WHERE HIS MEDICALLY DOCUMENTED HEROIN ADDICTION RENDERED HIM INCAPABLE OF DOING SO. Appellant testified at great length about his ongoing addiction to heroin. He testified that, to this day, he is an addict despite the fact that he has not administrated heroin into his blood stream in almost a decade. This was supported by the expert testimony of Mr. James Eash who explained that heroin addiction is a life long illness from which one never truly recovers but which only goes into remission. Appellant and Mr. Eash provided lengthy testimony as to how important the use of a hypodermic needle is in the "drug ritual" that surrounds heroin. Mr, Eash testified that for most heroin addicts the most pleasurable and anticipated moment of heroin use is not the high produced by the drug, the ritual leading up to and inClUding, the administering by hypodermic needles, the drug itself 3 i I, The Commonwealth did not contro'/ert drl'/ ()f 'h.~ ~J~st.irnuny of either Mr. Eash nor the r\ppcll'Jllt in r.,~:;pl,'~ct to h.~[uin use, nor did they contest Mr. Eash's expert opinion that ^ppell~nt had a legitimate medical fear of having a needle inserted into him. The Department of Transportation can be expected to make the argument that once they have shown their prima facia case, the I~' burden shifts to the licensee to show that he was not knowing or conscious in his refusal or that he was physically unable to take the test. Laurita v. Department of Transportation, Bureau of Driver's Licensina 632 A.2d 611, (Pa.Cmwlth.1993). Based on the expert testimony of Mr. Eash, combined with the testimony of Appellant, it is clear that Appellant had a valid medical reason to refuse the exam. Appellant, according to the arresting officer state numerous times, "no needles". While Appellant concedes he did not fully explain the nature of his heroin addiction to the officer that evening, he assert that the fear of having a needle brought to his arm was so great, and that his panic was so great, he was unable to knowingly and intelligently explain his reason for refusing a blood test. Further, this is coupled with the fact that he was never informed that the officer chooses the test. It is highly likely that if confronted with this information, Appellant may have given a longer 4 and more detailed Qxpldnati(Jf1 t.u the offic>.'r as to ''''hy he was refusing \\the needles". Appell~nt respectfully dH9~rts th~t he w~s in so much fear of heroin re-addiction that he could not make a knowing and intelligent refusal of the blood test. further, his increasing panic and fear that evening, rendered him incapable of adequately explaining his fear to the officer. further, even if this Court finds that his fear and loathing of heroin re-addiction was not sufficient to cause him to be unable to explain his reason for refusal, Appellant would then assert that he could not knowingly and intelligently refuse to explain his reason without the specific knowledge that the officer was allowed to choose the test. By his testimony and the officer's testimony, he asserted several times that he was ready and willing to take a chemical test, however he was not given an opportunity to do so and he was never informed that he had no right to ask for another test. Thus, the refusal cannot be said to be knowing and intelligent, given the lack of basic information provided to the Appellant. Additionally, Appellant seeks to remind this Court that he is not asserting a fear of needles for his reason for not taking the blood test. While a needle was certainly involved in the facts of this case, his refusal was based solely on the fact that he had a 5 legitim"ltf~ nlpdir:'d1 f'~',lr r)t r'.~"{Ff!jicti(jn tl) h'~loin. Penn!;y 1 Vdn i it Courts have tleld ttlat d f.~dr 0% ne0dle~ is not slJfficient reilsun to refuse " te,;t. Hov:ever, III those. Cd:H..'s the f(,",-Jr of needles was based on either Zj f(!,-Jf of If IV or ~u:r:c :Jthcr (!t::'=!J t:it:l tJdthologica: fear of the needle itself. None of those cases have dealt with a legitimate medical fear. Further, in the one case where the Court found medical testimony was provided as to the fear of needles, it found no relief under statutory law. Leberfinaer v. Commonwealth. Department of Transportation. Bureau of Traffic Safety 587 A.2d 46 (Pa.Cmwlth. 1990) However, in a case where the fear is based on are-addiction of heroin, one can find statutory relief by reading together the total sum of the Commonwealth's statutory law. It is clear from the Commonwealth's strong regulation of narcotics, particularly heroin, that Pennsylvania has a long standing policy discouraging drug use and addiction. Further, aside from the many penal sanctions associated with use of narcotics, Pennsylvania has, by legislative decree, spent millions and millions of dollars combating drug addiction. Clearly it is the will of the Legislature that Pennsylvanian citizens refrain from using narcotics like heroin, and that through State programs, we help addicts1 recover and learn to refrain from using narcotics. 6 @ " ., mo' __:v'''' :~;~~~~~~I!:~N:ITW:O,,=:'::"D~:== .1. . '~82B~~ ~6't da' . '624~6~2:~'~,. : AUTHORlZED8Y OJlTHI!YI!H1CLeCODI! ':. .~. ::'..:' \ l,. SECTION t~ 17 ......... 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Sognature of MoconIt Date: -:- ::. ~t ',lIi;" -"-IO"O".""'Dolng_ itJ..L-.... ~ 'o"'/,Q/OO' ':"'<"?-!i;" s;gna..". 01 0Illcat: ~ b. _ Dola: , _ .J. _ I Q .:~~~_ AmOAVIT .:,.'~: 1 ~--"'---""drIwlg-llNI~oI_or"O",..IIId_In_"hCIonmlol" ~~ v_~. ............... __eo __IIle__1Iad _drtvlng. ""'rating orin 1CIUII~_Of ',lil trte ~'menr of I fftOtOI wetIIdI...... UflOIt Wtellnflulnceollll:oftotOt. _11II =~.~ IUtIiIIanca or bOCh. . ..,~ << . :~ TIIor... - _ _.....U InvoIvod In.. _In _1Ile "",..lOt Of ~"IIlQt'oI OIlY _",......., or. ptdIIlNn lIqUftd.' ',~, ItNtrnlftlllllneQICII faoc.ry 01 .11 lulled. _ ~~~ 2.TIIe-_"U_"-"_-.a"_Dy__I547o1IlN1V_c:o. ....!;...~.. ~ TIIe___.........., Dy.-_oI"'__.omlnga"',_In--. 3""._. "'.. . ...., ..~, · T..____.._.._lalllng.. "."." CIIIN!IIlIttlTtl.,.... _10 ...__ Ie ...._10_10 lIII_lcIIlIIl. Yau __'...lIII_............. .~., ...,1O_lIII_...__II1lM....._-.llllll....lJu.._......IlIIg.__wlIlcIa_hntog..,,: '.' I :..~ _Of.._.I..._._..._~rou___....IIII_~.".~.,orm. . , . ......, ""}.1 ....._0__ 2 __ OIIIcerSlgl\Ocu..: ~ ti. ~. .,,' : '}~ fOil "" 0&., 'If"'~. ~ _ __ .,:.~;! ,,,", omc., Name: hrat.on D. ~ :~~ IT........., .';}' ,,' ,," .'. 27-36 _JurtlCkaon: (I.AAr.Tm:~.~f~. :~l Pftone:~ ~..d~5252 ,'. ._..,....~.,.~:~:-.~-::-:.~~~... . "', . , . 'n . .. ,I, .I.. ~d:Jr.,,:.~.... . :'~" ';', '..:t .,~..t,~. ,:,.;~f t. . . .~.. .1 I .- L :~:~ i~ .l~r. . .11,'-"1 ~~'X'_, Of . Ilodg. Numlllt: IIoINng Ackl.... 53 If SOtl'1'l1 ST CARLISLB " PA17 "_ltO '0: DellI"",.", 01 T..nlpotllaon lIutIlII oIllftwr L1ctnllnll PO.... 80037 H.rrtthtQ. PA 17.oe.oo37 THII ,011II YAY II OUPLlCATID IN TilE ClJ~IIlERL/\ND COlI:--lTY ('Ol Jln OF COMMON PLEAS NIl, 'l1l-6423 CIVIL TERM .lACK R. ('ARDONI' \'. COMMONWEALTII OF PENNSYL VANIA BRIEF FOR APPELLANT IN SUPPORT OF APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE LA W OFFICES OF PAUL BRADFORD ORR KARL E. ROMINGER, ESQUIRE 50 E. HIGH STREET, CARLISLE. PA 17013 (717) 258-8558 PA 1.0. #81924 ATTORNEY FOR APPELLANT PROCEDURAL HISTORY On Septemb'", 19, 1998, flppellant >JilS "nested "wI asked to submit to a chemical test to determine the qlldnt ity 01 ,11(;ohol in his blood. Appellant >Jas taken to the Carlisle Hospital where he was given a portion of his O'Connell >Jarnings and asked to submit to a blood test. Appellant refused to submit to the blood test and instead offered to take any other chemical test, including urine or breath. On October 17, 1998 the Pennsylvania Department of Transportation, Bureau of Licensing Division suspended Appellant's operator's license. On November 12, 1998, Appellant filed a timely Appeal with the Cumberland County Court of Common Pleas. On January 25, 1999 the underlining DUI charge >Jas .....ithdrawn and a charge of public drunkenness was entered in front of Cumberland County District Justice Paula Correal. Appellant subsequently entered a guilty plea to the charge of public drunkenness. On February 8, 1999 a hearing was held on the matter of the Appellant's Appeal from the driver's license suspension. This brief springs from that hearing. ARGUMENT 1. APPELLANT WAS NOT PROVIDED ADEQUATE O'CONNELL WARNINGS AND HIS REFUSAL OF THE BLOOD TEST WAS NEITHER KNOWINGLY OR INTELLIGENTLY GIVEN, AND THEREFORE, THE SUSPENSION OF HIS DRIVING PRIVILEGE IS IN CONTRAVENTION TO THE LAW. In the case sub judice it is clear that the officer did not read 1 26 to the Appellant. the warning contained in the Department of Tr,jfJ:'poltation's form DL In tacl, llll.' ()! t lC'~r tc)tdl1y skipped the portion of the form which indiciltt:s (holt I:h',: otficf!r chooses the test. The Appelldnt in this case, dccording to the officer's testimony, offered several times to submit to a different chemical test. He was denied an opportunity to do so and this was marked on Pennsylvania Department of Transportation's form DL 26 by the officer as a refusal. The Commonwealth has the burden of showing that the Appellant was given a opportunity to make a knowing and intelligent refusal. In the case of Joon Ho Yoon v. Common>Jealth of pennsvlvania. Deoartment of Transoortation. Bureau 718 A.2d 386 (Pa.Cmwlth., 1998), the Court held that: In view of the Department's clear burden of proving that it informed the licensee of the consequences of a refusal to submit the chemical testing and the lengthy suspension imposed on a licensee >Jho refused to consent is not an unreasonable burden to require a police officer to verbally inform a licensee of the consequences of a refusal. We agree with the Trial Court conclusion that the licensee was not adequately informed of the consequences of a refusal when the police officer merely provided licensee with a form rather than reading the warnings to him. This case is directly analogous to Yoon. While in Yoon, the issue was consequences, in the case sub judice, the issue was the failure to convey to the Appellant, the officer's right to choose the test. Because Appellant could reasonably believe that he was not refusing 2 . the warning contained in the Department of Transportation's form DL 26 to the Appelldnt. In l..ct, th" off icer totally skipped the portion of the form which indicates that the officer chooses the test. The t\ppelL,nt ln trllS case, according to the officer's testimony, offered several times to submit to a different chemical test. He was denied an opportunity to do so and this was marked on Pennsylvania Department of Transportation's form DL 26 by the officer as a refusal. The Commonwealth has the burden of showing that the Appellant was given a opportunity to make a knowing and intelligent refusal. In the case of Joon Ho Yoon v. Commonwealth of Pennsvlvania. Deoartment of Transoortation. Bureau 718 A.2d 386 (Pa.Cmwlth., 1998), the Court held that: In view of the Department's clear burden of proving that it informed the licensee of the consequences of a refusal to submit the chemical testing and the lengthy suspension imposed on a licensee who refused to consent is not an unreasonable burden to require a police officer to verbally inform a licensee of the consequences of a refusal. We agree with the Trial Court conclusion that the licensee was not adequately informed of the consequences of a refusal when the police officer merely provided licensee with a form rather than reading the warnings to him. This case is directly analogous to XQQn. While in Yoon, the issue was consequences, in the case sub judice, the issue was the failure to convey to the Appellant, the officer's right to choose the test. Because Appellant could reasonably believe that he was not refusing 2 a test as he did not know that the officer could pick the test, he, like the Appellant in Yoor. was incapable of making a knowing and intelligent refusal. Therefore. this Court must find in favor of the Appellant and set aside the Department of Transportation's license suspension. 2. APPELLANT COULD NOT MAKE A KNOWING AND INTELLIGENT REFUSAL TO SUBMIT TO THE CHEMICAL TEST WHERE HIS MEDICALLY DOCUMENTED HEROIN ADDICTION RENDERED HIM INCAPABLE OF DOING SO. Appellant testified at great length about his ongoing addiction to heroin. He testified that, to this day, he is an addict despite the fact that he has not administrated heroin into his blood stream in almost a decade. This was supported by the expert testimony of Mr. James Eash who explained that heroin addiction is a life long illness from which one never truly recovers but which only goes into remission. Appellant and Mr. Eash provided lengthy testimony as to how important the use of a hypodermic needle is in the "drug ritualH that surrounds heroin. Mr. Eash testified that for most heroin addicts the most pleasurable and anticipated moment of heroin use is not the high produced by the drug, the ritual leading up to and including, the administering by hypodermic needles, the drug itself 3 The Corrunonwealth did not controvert dny of the testimony of either Mr. Eash nor the Appellant in rr'''pr,c\ to heroin U'''', nor did they contest Mr. Sash's expert opini(JIl t.I\olt Appelldnt hold a leqitimate medical fear of having a needle inserted into him. The Department of Transportation can be expected to make the argument that once they have shown their prima facia case, the burden shifts to the licensee to show that he was not knowing or conscious in his refusal or that he was physically unable to take the test. Laurita v. Deoartment of Transoortation. Bureau of Driver's LicensinG 632 A.2d 611, (Pa.Cmwlth.1993). Based on the expert testimony of Mr. Eash, combined with the testimony of Appellant, it is clear that Appellant had a valid medical reason to refuse the exam. Appellant, according to the arresting officer state numerous times, -no needlesH. While Appellant concedes he did not fully explain the nature of his heroin addiction to the officer that evening, he assert that the fear of having a needle brought to his arm was so great, and that his panic was so great, he was unable to knowingly and intelligently explain his reason for refusing a blood test. Further, this is coupled with the fact that he was never informed that the officer chooses the test. It is highly likely that if confronted with this information, Appellant may have given a longer 4 and more detailed explanation to the off iccr as to why he was refusing "the needles". Appellant respectfully asserts that he was in so much fear of heroin re-addiction that he could not make a knowing and intelligent refusal of the blood test. Further, his increasing panic and fear that evening, rendered him incapable of adequately explaining his fear to the officer. Further, even if this Court finds that his fear and loathing of heroin re-addiction was not sufficient to cause him to be unable to explain his reason for refusal, Appellant would then assert that he could not knowingly and intelligently refuse to explain his reason without the specific knowledge that the officer was allowed to choose the test. By his testimony and the officer's testimony, he asserted several times that he was ready and willing to take a chemical test, however he was not given an opportunity to do so and he was never informed that he had no right to ask for another test. Thus, the refusal cannot be said to be knowing and intelligent, given the lack of basic information provided to the Appellant. Additionally, Appellant seeks to remind this Court that he is not asserting a fear of needles for his reason for not taking the blood test. While a needle was certainly involved in the facts of this case, his refusal was based solely on the fact that he had a 5 legitimate medical foar of re-addicticn to heroin. Pennsylvania Courts have held that a fear of needles is not sufficient reason to refuse a test. Howev(~r, ill those cases the fear of needles was based on either a fear of HIV or some other deep set pathological fear of the needle itself. None of those cases have dealt with a legitimate medical fear. Further, in the one case where the Court found medical testimony was provided as to the fear of needles, it found no relief under statutory law. Leberfinaer v. Commonwealth. Deoartment of Transoortation. Bureau of Traffic Safetv 587 A.2d 46 (Pa.Cmwlth. 1990) However, in a case where the fear is based on are-addiction of heroin, one can find statutory relief by reading together the total sum of the Commonwealth's statutory law. It is clear from the Commonwealth's strong regulation of narcotics, particularly heroin, that Pennsylvania has a long standing policy discouraging drug use and addiction. Further, aside from the many penal sanctions associated with use of narcotics, Pennsylvania has, by legislative decree, spent millions and millions of dollars combating drug addiction. Clearly it is the will of the Legislature that Pennsylvanian citizens refrain from using narcotics like heroin, and that through State programs, we help addicts1 recover and learn to refrain from using narcotics. 6 Therefore, by virtue of the vast h'gislalive prerogative to rehabilitate drug users Clnd discouro1'Je drug use, it can most certainly be said that the legislature would support a refusal of a blood test if it >Jould medically lead to the addition or re- addition of a person to a narcotic, like heroin. Since the facts of this case establish that Appellant's fear was reasonable and medically valid, it cannot be said that the legislature would have expected the Appellant to submit to the test knowing that he was in eminent danger of being re-addicted to heroin. In conclusion, for the above stated reasons, and for the two enumerated arguments, Appellant requests that this Court set aside his license suspension and/or Order the Department of Transportation, Driver Licensing Division to withdraw it's suspension. Respectfully submitted, LAW OFFICES OF PAUL BRADFORD ORR 7f"~ f - Karl E. Rominger, Esquire Attorney for Defendant 50 East High Street Carlisle, PA 17013 (717) 258-8558 Supreme Court rD No. 81924 7 JACK It CAIWONE. Appellant IN TIlE COURT OF COMMON PLEAS OF CUMJlEfU.ANDCOUNTY, PENNSYLVANIA NO,: (} j'. (, 'i.) j C.L~ '/,1'- v. COMMONWEAL HI OF PENNSYL VANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING. Appellee LICENSE SUSPENSION API'EAL OIwm OF COUnT I,-{I; .'" AND NOW, this I,' dayo! Ic{!.. ",1,/. 1998, upon consideration of this APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE, il is hereby Ordered that a Hearing on the matter shall be held on' i day of ,'., i '. " {, 199( al -, ;/ 'I .. .} . o'clock -1-, M, in Courtroom No, ~ of the Cumberland County Courthouse. A Supersedeas is granted pursuant to Vehicle Code Section 1550 (b) (I) unlil such time that this Honorable Court resolves this appeal. BY THE COURT: '4J J. Distribution: - P A Department of Transportation, Office of Chief Counsel, Room 103, Transportation & Safely Building. Harrisburg. PA 17120 - Law Offices of Paul Bradford Orr, 50 E. High Street, Carlisle, PA 17013 (I,....,."..." ('Y>~-.l 1I/11c/'I'i!, ""'\l- .!l ' )"'. :' , ~' !l I', fi", ",,1'-, /'I,-~ trli~ If"" ;:l\ i..-C I " 'I 'I ....' JACK It CARDONE, Appellalll IN TilE ('OUllT OF COMMON PLEAS OF CUMUERLAND COUNTY, I'ENNSYL VANIA v. NO,: COMMONWEALTII OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. 8UREAU OF DRIVER LICENSING. Appellee LICENSE SUSPENSION APPEAL ATTORNEY VEIUFICATION The undersigned, Karl E, Rominger, Esquire. hereby verifies and stales that: I. He is Ihe allorney for Ihe Appellant. 2. He is authorized 10 make this verification on his behalf: 3. The facls set forth inlhe foregoing Appeal arc known 10 him and not necessarily to his client; 4. The facts set forth in the foregoing Appeal are Irue and correclto Ihe besl of his knowledge. informal ion and belief; and 5, He is aware that false slatements herein are made subjecllo the penahies of 18 Po. C.S. 4904, relnting to unsworn falsification to authorities. Respectfully submitted. THE LA W OFFICES OF PAUL BRADFORD ORR BY:?{ "l_~ Karl E. Rominger, Esquire 50 East High Street Carlisle, PA 17013 (717) 258-8558 Attorney for Appellant Superior Court 10# 81924 Date: Nr,lf, lJ, {1 jV I I 0 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Lieensing Harrisburg, PA 17123 OCTOBER 17, 1998 JACK REYNOLD CARDONE 720 CONODOGUINET AVE CARLISLE PA 17013 ~6263b10ab24bbb 001 10/1011~~6 2515351~ 12/22/1951 Dear Motorist: As a result of your violation of Seetion 1547 of the Vehiele Code, CHEMICAL TEST REFUSAL on 09/19/1998, Your driving privilege is being SUSPENDED for a period of 1 YEAR(S). In order to eomply with this sanetion YOU are required to return any eurrent driver's lieense, learner's permit and/or temporary driver's lieense (eamera eard) In your possession no later than the effeetive date listed. If you cannot eomply 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 privi- lege. Failure to comply with this notice shall result in this Bureau referring this matter to the PennsYlvania State Police for prosecution under SECTION 1571(a)(4) of the Ve- hicle Code. Although the law mandates that your driving privilege is under suspension even if YOU do not surrender Your license, Credit will not begin unlll all current driver's license product(s), the DL16LC Form, or a letter acknowledging Your sanetion is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE DR ACKNOWLEDGE- MENT, 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 11/21/1998, 12:01 a.m. ******************************************************************** IWARNING: If YOU are convicted for driving while your license is I Isuspended, the penalties will be: not less than 90 days imprison-I Iment and a $1,000 fine and an additional 1 year suspension. I ******************************************************************** ~PP5/.VlNrS ' 1if'E: II a :.lIT'S EXHIBIT ''A') p, /42- . n .:"1 ~ W 0 ',-.. ." -f' , ',:-; ::1 !'! I , - iipJ ,,, .]~ , ~...} ; (:, . -- ~,... ",,, ;.;::l , ,- C) ~-~ m , :5 -<: t!)..... I.'~\ \, Y ~ ~. 4.lrH 01 ~ COMMONWEAI.TH OF IJENNSYI.V ANIA I>EJ>ARTl\1ENT OF TRAl'lSIJOInATION lIf'Hn: OF l'IIIH' ('(II \SI:I, Hllleu: &llt,IH'Il' UI\' IIJ\ISIO' UII'I:ItHIO\T OI'J.'U'I: 1'[\ n:lt 111I1 SOl:"" I'UO'T STlII:!:1 .1.111I1ISIII:UI;.I'f::\:\S\'I,\',\\I,\ 171114.2~1I. (717) 7K7.2K.l1I I',IX: (717) 7M.1122 February 19,1999 Honorable Kevin A. Iless Cumberland County Courthouse I Courthouse Square Carlisle, Pa. 17013 RE: Jack Reynold Cardonc v. Commw. of Pa., Dept. of Trans" 98-6423, License Suspension Appeal Dear Judge Hess: Please accept this lettcr as the Department of Transportation 's brief in the above-mentioned matter. A hearing was in the above mentioned matter on Febmary 9, 1999. At the conclusion of the hearing you requested the panies to submit briefs. By oftieial notice, dated October 17, 1998, the Department ofTmnsponation notified the motorist. Jack Reynold Cardone, that as a result of his violation of Section 1547 of the Vehicle Code, regarding Chemical Test to Detennine Amount of Alcohol or Controlled Substance, on September 19, 1998, his operating privilege was being suspended for one year. The petitioner appealed the one year suspension of his operating privilege, Officer Kcnton D. McCoy testified that on Septcmber 19, 1998, while he was assisting as a back-up officer in another matter, he had noticed the petitioner walking with a stagger. He later observed the petitioner in a motor vehicle and stopped the petitioner. Officer McCoy testified that the petitioner had glassy eyes, slurred speech and smelled of alcohol. The motorist admitted that he had "a couple of beers", "maybe 4." Officer McCoy infonned the petitioner that he was under arrest for driving while intoxicated. Officer McCoy then transported the petitioner to the hospital for a blood test. Officer McCoy read to the motorist the DL-26 fonn, also known as the Chemical Testing Warnings and Report of Refusal to Submit to Chemical Testing as Authorized by Section 1547 of the Vehicle Code. The motorist refused to submit to the blood test. The petitioner told Officer MeCoy that he did not want a needle stuck in his ann and that he was not refusing but that he didn't want a needle. The petitioner never submitted to the requested blood test. The petitioner testified at the hearing that he was afraid of needles and afraid ofre-addiction to heroin, The petitioner called Mr. Eash, a social worker, as a witness who testified regarding Judge Kel'in A. J less -1. Fehnmry I l), I l)lJl) dmg addictions, The Deparll11elll hears Ihe hunk'nlo eSl:lhlish Ihe IiICls supporlinl! the one year suspension pursuanllo Seclion 15-17 of Ihe Vehicle ('ode. /)"llIIrtllll'/IItif'l'rllll'lltIrtlltil1ll, /lI/""all (if' Traf)it. SlIfi'f)' I'. () '011/11,</1. 521 Pa, 2-12, 555 1\,2d li7.' (l'llllJj, The ))ep"rtl11enl l11usl eSlllblish Ihe till/owing: (I) thatlhe 1110torist was arresled li,r a l'iolalionof75 Pa,C.S, *373 I; (2) by a police office who had reasonable grounds 10 beliel'e thatlhe l11otorisl WlIS opemling or in aCllIal physical cOlllrolofa l11olor vehicle while under Ihe inlluence of alcohol or a cOlllrol/ed substllnce; (3) thaI the l11010risl was requeSled 10 subl11illO 1I chemical test; (4) Ihe molorisl refused 10 submit 10 Ilulllest; and (5) Ihe motorist w;\S wamed of the consequences ofrclllsing lhe chemiealtes!. Depurtme/ll of Trulaportatioll, BllreulI/if'Dril'er Licellsing I'. BOl/clter, 547 Pa, 440, 6lJ I A.2d 450 (1997); Depurtmelll of Transportation, BI/real/ of Driver Licensing I', Ingram, 538 Pa. 236, 648 A.2d 285 (1994); Ostrander I'. Department of Tramportatiml, Burean of Dril'e Licensing, 116 Pa. Cmwlth. C!. 243, 541 A.2d 441 (1988); Departmem of Transportution, Bureau ofTruj)icSafef)'I" O'Col/llell, 521 Pa, 242, 555 A.2d 873 (1989). Oncc the Deparlmenl has established its prima facie case, the burden of pro of I hen shifts to lhe licensee to prove thaI he was not eapablc of making a knowing and conscious refusal to lake thc test or 10 eSlablish any other affinnalil'e defenses, Dep(l/'tmem of Transportation, Burean of Dril'er Lh'ensing I'. Ingram, 538 Pa. 236, 648 A,2d 282 (1994). In this case, the officer has reasonable grounds 10 believe lhal the motorist operated a motor vehicle while under the inlluence of alcohol. He arrested the motorisl for DUI, and Iransporled the mOlorisl to the hospital for lhe pUrposes ofa chemicaltesl pursuant to Section 1547 oflhe Vehicle Code. The officer requested that the licensee submil to a chemical lest of blood. After a police officer has requesled a motorisl to submit 10 a chemical test, lhere is only one acceptable response; that is, an unqualified, unequivocal assent to submil to the requested lest. Departmelll of l' ran sport at ion I'. Renwick, 543 Pa. 122,669 A.2d 934 (1996); Departmelll of Transportution, BI/reall of Dril'er Licensing I'. Stay, I 14 Pa. Cmwlth. Ct. 532, 539 A,2d 57 (1988); Departmem of Tramportation, Bureun of Dril'er Licensing v. Groseost, 142 Pa. Cmwlth. Ct. 36, 596 A.2d 1217 (1991). The licensee did nOl agree 10 submil to the chemical lest. He staled he did not want a needlc sluck in his ann, Such a response was not an unqualified, unequivocal assent to submit 10 the requested chemical lest. The choice oftesl is entirely wilhin lhe officer's discrelion, Mooney v. Departmemof Tr(II/sportation, Bnrean ofDr;.'er Licensing, 654 A.2d 47 (Pa. Cmwlth. 1994); Sludie I'. Judge Kel'in A. Iless - " - February l'l. 11)1)<) DCPUrtllll'IIt af Trump/lrtutillll, /Jllrl'ulI af f)rilw l.i('l'I/.I';III1, 164 Pa, ('mnmIV, (,llJ, /l4J A.2d 1155 ( II)lJ4); Md'lIl/llIIlIlr 1'. D"I,ur"""1II /If Trllll,l/wrtutillll, /Jllrl'llII /If Tnlfli,' .\'Ufi'(I', 122 I'a, C'OIllIllW. 415, 551 1\,211 11711 (l'lllX); IJI'purtllu'IItI1'1'rullvwrtlllitlll, IIIImlll lif IJrilw U"I'II,I'illll I', PI'IIid" 112 "a. Clllwhh. ('I. .'OJ. 5J5 1\.211 2% (llJXlIj. The Illolnrist's agreelllelll to submilto a testothcr than the one requcsted will mil viliale Ihe Illolorisl's relilsalto the requested test. D,'purtlllc/If af Tru''''port"timl, /JllrCUII /If IJril'cr Li/'/'II,I/IIII I'. MI'U.IC, 1411 Pa. Cmwhh. Ct. 14, 6/0 1\.2d 7/l ( IlJlJ I ); Dcp"rtlllC/If tifTruIIspartutitlll, /J"rl'"" lifTruffit' Sufc/)' I'. IIlIda/'k, 72 Pa. Commw. /lllll. 457 A.2d 11IX (llJ!D). Any agreelllclll by Ihe petitioncr to take a test othcr Ihan the one rcquested by the ofliccr IV.1S Icss than an unqlwlificd and unequil'ocal assent 10 the officer's request ami constitutes a refusal. The pctitioner argucs that the Department failed to make a prima facie case because he was not told that the choice of test was entirely within the officcr's discrction and thin Ill: was nof rcad the parenthctical phrase "breath, blood or urine. Officer chooscs thc chcmicul test" on the DL-26 fonn citing foon I'. Dcpurtmcllt of Trumport"tian, Bnrc"" of Dril'cr LiccIISillg, 718 A.2d 386, (Pa. Commw. 1998). In fooll thc officer did not read the DL-26 fonn or vcrbally apprise the motorist of the consequences of refusing the chemicullest, but gave the Illotoristlhe DL-26 fonn to read. 1tI. The court found that the motorist IVUS not properly infonned Ilmt u refusul would resuh in a Iiccnse suspension. Id. In this case, the officer rcad the DL-26 fonn to the motorist. The motorist was properly warned of the consequences of refusing. The fonn. which the officcr rcad word.for-word at point I through 4. except the parenthctical phrase "brcath, blood or urine. Officcr chooses the chemical test", states at point 4b "... Unlcss you agree to submit to the tcst requcsted by the police officer your conduct will be deemed to be refusal and your operating privilege will be suspended for one year." Clearly the motorist was properly wurned of the conscquence of refusing. The Department need not prove that the officer told the petitioner that the choice of test lies entirely with the officer. Such an additional elemcnt is not one of the elements of the Department's prima facie case. See Departlllellt of Transportation, Bnreall of Driver Licensing v. BOllclrer, 547 Pa. 440, 691 A.2d 450 (1997); Departlllelll of Transportation, Bllreall of Driver Licellsing I'. IIIgram, 538 Pa. 236,648 A.2d 285 (1994); Ostrander v. Department of Transportation, Bllreall of Drive Licensillg, /16 Pa. Cmwlth. Ct. 243, 541 A.2d 441 (1988); Department afTranspartatioll, Bllreall of Traffil' Safety v. O'ColI/lell, 521 Pa. 242,555 A.2d 873 (1989). As stated earlier, the choice of test is entirely within the officer's discretion. SlIpra. A motorist may argue that he did not refuse to take the test because he was physically incapable of making a knowing and conscious refusal or that the refusal of the test was not knowing and conscious. In either case, the burden of proof is upon the petitioner to establish the defense. Dept/rflllentofTrallsportatian, Bllreall of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989), If thc motorist argues that the refusal was not knowing and conscious because he was d If I , 1 I I f:; l ,1- , ;1 , i: Judge Kevin A, lie" . -I . Fehruary 1'/. II/tN physically incapahle of perfllnning the tcst, Ihcnlhe 1I10torislll1ust cstahlish th:nlltct hy cmnpelent, uneqllivocalll1edical c\idence, O"PUrtll"'IIt /~,. TruII,fpllrtuli/III, IIl/rt'a" Ilf TraJj1" Safi.ty I'. 1I1l/,fl"II, 150 Pa, ClI1wllh, ('1. I, (,15 A,2d II.' ( 11/1/2 I; Z"hi,' I'. Ilt<partll"'1II Ilf Trl/mpllrtalitlll. 1'",,'al/ III TrafJk sI/Jj'(I'. In Pa, ('mwllh, C1, 221, 500 A,2d 121111 ( II/K5), lhe teslimony Ill' Ihe mowrist is legally inslIOkiclllllllllCcllhis hurdcn. O"P//rtIll,'IIt III Trall"portuti/III. Ill/real/ III Or;'..., 1.iL"'II"ill/: I'. l.uSall,', IOJ I'a, Commw. -122, 520 A.2d 131 (1987), The petitioner prescnted no competenl, unequivocal medical el'idence lill' his rcfu"l!. He presenled the tcstimony of Mr. Eash. a social wnrker. who testified regarding drug addictions, but the testimony was not competent medicallestimony. As such, the molnrist did not eSlablish by competcnlm~dical evidence th:1t he was incapable of perlimning the tesl. Mnreover, Mr. Eash testiticd thaI he had nCl'er counseled the petilioncr prior 10 thc relilsal, therefore, there was no foundation for Mr, Eash's testimony, Furthel1nore, if the physical incapacity is bascd upon a particular medical condition, the motorist must also eSlablish thaI he notified the police oflieer oflhe particular medic:11 condition, Lalld.,ber/:er v. Depl/rtment of Tr/llUpllrlatiml, Bl/re'lII Ilf Dril"" LiCellJillg, 717 A,2d 1121 (Pa. Cmwlth. 1998); IIl/lalski I'. Departmellt Ilf Trall.,portaliOll, BI/reall Ilf Dr;.'er LiL'ellSillg, 666 A.2d 386 (pa. Cmwllh. 1995); Larkill I'. CtJmllwII...ealtlr, 109 Pa. Cmwllh. Ct. 611, 53 I A.2d 844 (1987). In this case, the petitioner merely told Ihe oflicer that he did not Wlll1t a needle stuck in his amI. He did not infonn the oflicer of any medical condition. Any defense relying on a supposed medical condition must fail because the petitioner did not informlhe officer oflhe same. I I' the motorist argues that the refusal was not knowing and conscious because he was incapable of making a knowing and conscious refusal. then the motorist must establish that fact by competent evidence. JacobJ I'. Departmelll Ilf TranJpllrtatiOll, BI/real/ of Driver LiCellJilIg, 695 A.2d 956 (Pa. Cmwllh. 1997), appeal dellied._ Pa. _,700 A.2d 443 (1997); Departmenlof TrallJportalioll, BI/real/ of TraJJit' Safety I'. /lIl/Jten, 150 Pa. Cmwlth. Ct. I, 615 A.2d 113 (1992). The petitioner must present com pc lent and unequivocal medical evidence unless a physical injury is so severe that it obviously rendered him incapable. JacobJ v. Departmelll of TrallJportatioll, BI/real/ of Driver LicellJillg, 695 A.2d 956 (Pa. Cmwlth. 1997), appeal dellied. _ Pa. _,700 A.2d 443 (1997); Pollllck v. Departmellt of TrallJportatioll, BI/real/ olTraffic Safety, 160 Pa, Cmwlth. Ct. 383.634 A.2d 852 (1993); Departmellt of TrallJportation, BI/real/ of TraJj1c Safety v. HO[Jtell, 150 Pa. Cmwlth. Ct. 1,615 A,2d 113 (1992). In this case, there was no obvious physicul injury which rendered the motorist incapable of making n knowing :md conscious refusal. Additionally, motorist must prescnt competent and unequivocal medical evidence by n medical expert who must be able to stnte within a rensonable degree of medical certainty that the motorist's medical condition or injury degraded the motorist's cognitive abilities to the extent that the motorist was incapable of making a knowing and conscious decision regarding the chemical test. DiGiovalllli I'. Departmellf of Transpllrlaliml, BI/real/ of Driver LicellJillg, 717 A.2d 1125 (Pa. Cmwlth, 1998); Barblll/r I'. Departmellt of TrallJportatioll, BI/real/ of Driver Judgc KCl'in A. I less - 5. Fcbruary 19, I 'I'll} Llt-fmlnll, 701 1\,2d INII (l'a, ('mwllh. 11)<}7l. Inlhis casc, thc p,.titioncr prcscntcd no ClllllpCtclII and uncquivocalmcdical cl'idcnce rcgarding any allcgcd iucapacity tomakc a knowing alld conscious relllsal. As such, Ihc defcnsc musl 1;lil. Morcol'cr. Mr. bsh tcslilied Ihal hc had nCl'cr cnullscled thc pClitioncr prior 10 the relltsa!. thcrcli.rc, thcrc was no lillllld,lIionli,r Mr, Eash's testimony. As such, Ihe defcnsc musllilil. Again, thc dcfense must lhil. El'cn if a knowing .md conscious dclensc is prcscntcd,lhc dclense lilils whcllthe incapacity is causcd. in whole or in part. by thc motorist's I'olunlary consumption ofaleohol or dntgs. IIInktll'. Departlllelll of Tramportutl/III, Bl/reul/of Drb',-r 1.I,','minll, 715 A.2d 556 (Pa. Cmwlth. 1988); Plotts I'. Depart/1/ent of Trampartation, BI/re/III of Drb'er Li,'en,~it% (,60 A.2d 133 (Pa. Cmwlth. 1995) (ell hallc); Departlllelll afTran,~partutian, Bureau lifDril'er LlL-ensinll v. Holsten, 150 Pa. Commw. 1,615 A.2d 113 (1992); Department afTran,~portati/J/I, Bureau of Drb'er Lit-eIIsillg 1\ Mas,f, 146 ra. COIllIllW. 330, 605 A.2d 1279 (1992), appeal del/ied. 532 Pa. 648,614 A.2d 1144 (1992). Of coursc, volunlary intoxiealion is no defcnsc. Departme/lt of TrUllSportation, BI/real/ of Dri,'er Licel/sinlll'. Mon.faY, 142 Pa. Cmwlth. Ct. 163, 596 A.2d 1269 (1991). The petitioncr argues Ihal his fear of necdlcs and his fcar ofre-addiction to heroin should be an acccptable excusc for not submiuing 10 the blood test. Fear of ncedles is no excuse for a refusal of a police offiecr's requcst for a blood tcst. Jacobs I'. Departlllent of Transportation, BI/reul/ of Drb'er Licel/sil/g, 695 A.2d 956 (Pa. Cmwlth. 1997), appeal del/ied, _ Pa. _, 700 A.2d 443 (1997); Department of Trall.~portatioll, BI/real/ of Driver Licensing v. Mease, 148 Pa. Commw: 14,610 A.2d 76 (1991); McCl/llol/gh I'. DepartlllentafTransportation, Bureau of Traffic Safety. 122 Pa. Commw. 415, 551 A.2d 1170 (1988); Departllle/lt of Traluportation, BI/real/ of Driver Licel/sing I'. MOl/tgolllery, 113 Pa. Commw, 42 I, 537 A.2d I II (1988), appeal del/ied. 520 Pa. 608. 553 A.2d 970 (1988); Books v. Department of Transportation, BI/real/ ofDrb'er Licemil/g, 109 Pa. Com mil'. 25, 530 A.2d 972 (1987). Fear of needles is no excuse evcn upon the presentation of medical evidence of the person's fear of needles. Leberfil/ger v. Depurtllle/ll of Transportatillll, BI/real/ of Traffic Safety, 137 Pa. Commw. 605, 587 A.2d 46 ( 1991). See auachcd. Fear of acquiring a disease such a AIDS or hepatitis via a needle is no excuse for refusing to submit 10 the requested blood test. Leberjinger I'. Departmel/t of Transportation, Bureau of TrajJic Safety, 137 Pa. Commw. 605, 587 A.2d 46 (1991); Patterson v. Department of Transportation, BI/real/ of Driver Licensing, 136 Pa. Commw. 49, 582 A.2d 700 (1990), appeal dellied, 528 Pa. 615, 596 A.2d 161 (1991). Likewise, any fear of re-addiction to heroin from a needle used in a blood test is no excuse for not submilting to a chemical test for the purpose of a chemicaltcst pursuant to Section 1547 of the Vchicle Code. A motorist may also argue he was unable to make a knowing and conscious refusal because he was confused over his Miral/da rights. Again, once thc Commonwealth meets its prima facie burden, it is the motorist's burden to prove that because of his confusion over his Miranda rights he was not capable of making a knowing and conscious refusal. Department of Transportation, BI/real/ of TrujJic Safety v. O'Collnell, 521 Pa. 242, 555 A.2d 873 (1989). Whenever a motorist Judge Kel'in A, I less .It. Fehruary 1<), 1<)1)1) is arrested for DUI and requested to suhmilto a chemical test, police officers must prol'ide the motorist with the () '( '(1//1/1'/1 warning. DI-pI/rlll/I-II'"" TrulI,'pllrlllf/lIl1. IllIr/'UI//!,.Dril'l-r 1.iL'.-/I,dllll'" S.'IIII, 541t I'a, 241, 1t1l4 A.2d 531) ( I <)lj(,), Any defense hased upon the motorist's confusion of the .IIirwlll" and () 'COI/I/('/1 warnings is a typc of knowing and conscious ddense and the burden Ill' proof is upon the petitioner. DI'purtll/.'1If IIf TrulI,'p"rlulilm. IllIr.'ulI IIfDril,.-r l.ic.'I/.,i/l1l I'. 1/llIru/II, 5311 Pa, 23It, MlI A.2d 2115 (1<)<)4). A proper () 'Co/llldl warning must inform the motorist that his operating privilege will he suspended for one year ifhe refuses a chemic.lltest and that his Miml/d" rights do not upply to chemical testing. Del'artll/e/ll IIf Tra/lspllrlalil/I/. H/lreall IIf Dril'er Li.'el/"illll'" Sellll, 541t I'u. 241. 684 A.2d 531) (11)96); Departmellf IIfTramporlalilm. Hllrealf ofDril'er Liee/l"//II1'" 1/llIru/II, 538 Pu. 236, 648 A.2d 285 (11)1)4), Officer McCoy testified that he reud. word. for- word, 10 the petitioner from Depurtment's DL-26 form. Depurtment's exhibit I. The portion of the DL-26 fonn that the oflicer reud to the motorist reuds as follows: I. Pleasc be advised tlmt you are now under urrest for driving under the influence of alcohol or a controlled substunee pursuant to section 373\ of the Vehicle Code. 2. I um requesting that you submit to u chcmicultest of urine. Officer chooses the chemical test.) (breuth, blood, or 3. It is my duty, as a police oflieer, to inform you that if you refuse to submit to the chemicultcst your operuting privilege will be suspended for u period of one year. 4. u) The constitutional rights you have as u criminal defendant, commonly known us the Miranda Rights, including the right to speak with a lawycr und the right to remain silent, upply only to criminul prosecutions and do not apply to the chemical testing procedure under Pennsylvania's Implied Consent Law, which is a civil, not a criminal proceeding. b) You have no right to speak to a lawyer, or unyone else, before taking the chemiealtest requested by the police officer nor do you have a right to remain silent when asked by the police officer to submit to the chemical test. Unless you agree to submit to the test requested by the police officer your conduct will be deemed to be refusal and your operating privilege will be suspended for one year, c) Your refusulto submit to chemical testing under the Implied Consent Law may be introduced into evidence in a criminal prosecution for driving while under the influence of alcohol or a controlled substance. See Commonwealth Exhibit Number I, The lunguage on the DL-26 form has been held to be an acceptable warning. Departmelll of Trallsporlalioll, Hlfrealf of Driver Licells/llg v. I/lgram, 538 Pn, 236. 648 A.2d 285 (1994); Crowley v. Depart/llelll of Trallsparlal/oll, Blfrealf of Driver Liee/l"illg, 540 Pa. 21,655 A.2d 491 (1994), afI'gper clIriam slIb 110/11.. Department of JACK REYNOI.D ('ARDON!:. PLTITIlINI:R IN TilE COURT OF CO~~ON Pl.b\S CUMBERl.AND COUNTY, PENNSYLVANIA v, IIX.64~.1 COMMONWEAl.T" OF PENNSYl.VANIA, DEPARTMENT OF TRANSPORTA TlON. BUREAU OF DRIVER LlCENSIN(j, RESPONDENT LICENSE SUSPENSION APPEAl. , I I. V CFRTIFICATF OF SFRVICF f hereby certify thai I am this day serving a copy of the Department's l.eller Brief upon the person, and in the manner, indicated below, which satislies the requiremcnts of the Pennsylvania Rules ofCil'il Procedure: By first class mail, prepaid. addressed to: Karl E. Rominger. Esquire 50 East High Street Carlisle, P A 17013 Date: February 19, 1999 /ly-I!~ L George lI, Kabusk Assistant Counscl Department of Transportation Riverfront Office Center-3rd Floor 1101 South Front Street Harrisburg,PA 17104-2516 (717) 787-2830 ; i iJ , I /1:,{ II.'.. .~ ~~~ I',.;; l;,';"~ iA ;"r' :i ! I .1 46 Pa. 587 ATLANTIC REI'ORn:R, 2d SER":S motion tor summary judKment is diamissed aa moot. . o fIfU.,.....''f\III. Donna Marie I.EBERFINGER, Appellant. v, COMMONWEALTH ot Pennsylvania, DEPARTMENT OF TRANSPORTA. TION, BUREAU OF TRAFFIC SAFE. TY, Appellee. Commonwealth Court ot Pennsylvania. Submitted un Briefs Nov. 9, 1990. Decided Feb. 13, 1991. Department ot Transportation sus. pended licensee's driving privileges tor her retusal to submit to ehemical testing, and licensee appealed. The Common Pleas Court, Lancaster County, No. 4898-1989, Louis J. Fsrina, J., dismissed the appeal, and licensee appealed. The Commonwealth Court, No. 1310 C.D. 1990, Doyle, J., held that medical evidence establishing a licen- see's substantial tear at needles is not at such legal signiticance that it negates the implied consent ot a licensee to submit to the blood test tor driving under the intlu- ence. Attinned. I. Automobiles ~144.1(t.20), 418 Medical evidence establishing licen. see's substantial tear of needles is not at such legal signiticance that it negates im. I. Section IS47(b)(1) provides as follows: If any person placed under arrest for a viola. lion of sectlon 3731 (relating to driVing under influence of alcohol or controlled substance) is requested to submillo chemical testing and refuses to do so, the testing shall not be con. ducted but upon notice by the police officer. the department shall suspend the operating privilege of the person for a period of 12 months. plied conoent of licens.., to aubmit to blood teRt for drivinK under Innuence, 76 Pa.C. S.A. If 1547(bKI), 373I(a). 2, CoRlo "'260(4) Appeal is consldercd frivolous it, either as matter of tact or law, appellant's conlen. tions havc no likelihood of success or eon. tinualion ot contest Is unreaaonable. Rules App.Proc., Rule 2744, 42 Pa.C,S,A. David L. Williams, Morgan, Hallgren, Croaswell <<< Kane, P,C" Lancuter, for ap- pellant. Timothy P. Wile, Asst. Counsel.in.Charge of Appellate Section, with him, Harold H. Cramer, Asst. Chief Counsel, and John L. Heaton, Chiet Counsel, and Donald J. Smith, Harrisburg, tor sppellee, BeCore DOYLE and DYER, JJ., and BARRY, Senior Judge. DOYLE, Judge. Donna Marie Leberfinger appeals from an order of the Court of Common Pleas of Lancaster County which dismissed her ap- peal at a one (1) year suspension at her driving privileges imposed by the Depart- ment at Transportation (Department) tor her retusal to submit to ehemieal testing pursuant to Section 1547(b)(l) at the Ve- hicle Code, 75 Pa.C,S, ~ 1547(b)(!).' The pertinent tacts are as tallows: On October 19, 1989, Lebertinger wu arrested tor driving under the influence.' She was transported by poliee offJeers to a local hospital to have blood drawn to delonnine her blood alcohol content, Leberlinger re- tused to submit to the test stating that she was afraid at needles, The arresting offi. cer read to her the implied consent law but LeberCinger still retused, 2. Section 3731(a) of the Vehicle Code, 7S Pa.e.s. ~ 3731(a), provides in pertinent pari: A person shall not drive, operate or be In actual physical conlrol of the movement of any vehicle while: (1) under the influence of alcohol to a degree which renders the person Incapable of safe driv. ing: (4) the amount of alcohol by weight in the blood of the person Is 0.10% or grealer. j I , , 11 fj ( ! 1 f. I , '. r ,. ,. I I, . e l. I " . ~ I . ;. . n l . r :- r J . n :I s .I e " e i. t ,~ " ,. ) ill Ie; " n ,I . ,. U:OF.RFINGER ., DEPT. OJ' TRANSI', tilt.. 117 A.U .. tp..Cmwlda, 1"1) Pa, 47 LeOOrfing.r r...I.ed notice from the De- partment of the suspension of her dri.ing pri.n.g.s and Ihe appeal.d thie IUlpenllon 1O the common pl... court. A huring w.. held on May 24, 1990, whe.... LeOOrfing.r pres.nted testimony, in the fonn of a d.po- sition of h.r penonal physlcl.n, Dr. G.rald 1. W....r. Dr. W....r testified th.t In his medical opinion LeOOrfinger eurrered from a phobia of needle., and that her fear of needles II such th.t it o..rrides her nonn.1 judgment in ..senting 1O a medi.al procedure In.ol.ing needles. The common pie.. court held that e.en where a fear of needles is substantiated by medic.1 e.i. dence, the refusal is nonetheless unexcused as a matter of law. The court, ther.fore, dismissed the .ppeal. Appeal to thll Court followed. {lJ Leberfinger argues on app.al that her fear oC ne.dles i. so substantial that it renders h.r physically un.ble to submit to a blood test. She further argues that the trial court erred in disr.gardlng the medi. cal evidence .stablishing the extent of her fear and the eCfect of this Cear on her ability to consent to medical procedures. This Court has previously determined that the fear of needles is no justiCication for reCusal to take a required blood test. McCullough v. Department of Transpor. tation, Bureau of Traffic Safety, 122 Pa. Commonwealth Ct. 415, 551 A.2d 1170 (1988). In McCullough, the licensee testi. fied as to his fear oC needles but did not present medical evidence that he had a phobia. In this case such evidence was presented. The question is then whether this evidence, if Cound credible, can provide a basis for a determination that a licensee's refusal is excused. We hold as a matter of law that the additional Cactor oC medical evidence establishing a substantial fear oC needles is not oC such legal significance that it negates the implied consent oC a licensee to submit to the blood test Cor driving under the innuence. We so hold because there is no statutory support for any argument to the contrary. We accord. 3. Rule 2744 permits an appellate court to award. in addition to C0515, reasonable counsel fees, "if it determines that an appeal is frivolous Ingly affirm the order of the Court of Com. mon Pie.. of LancaalA!r County. The Department requelt.o that counlel feel and calla be _elaed aiainlt Lebe.. finger and her IUomey in aeeordanc. with Pa.R.A.P. 2744.' The Department con. tends that becau.. the lasue of refusII to submit to blood t..ting becauso of fear of needles i. w.ns.ul..J, Lo.berfinger'l Ippeal is Crivolous, (2) An apJl'!alls considered frivolous If, either.. a matter of fact or law, the Ippel. lant's contention. have no likelihood of IUe- cess or the continu.tion of the contest is unreasonable. Richland School District v. Richland Education Association by Mar. gan, 124 Pa,Commonwealth Ct. 459, 556 A.2d 531 (1989), Becauae this precise is. 8ue~ i.e.} whether medical testimony efltab- lishing a phobia aC needles is aufficient to constitute a defense to a refusal to take a blood test, has not previously been ad. dressed by the Court, we cannot hold that Laberfinger's apJl'!al had no likelihood of success and was. therefore, frivolous. We decline to award counsel fees and costs to the Department on that basis. The order of the Court of Common Pleas of Lancaster County II affirmed. ORDER NOW, February 13, 1991, the order of the Court aC Common Pleas of Lancaster County in the above-captioned matter is affinned. w o IU'I'"UlIItl'SYlTlM T or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious." JACK R. CARDONE IN TilE COllin OF COMMON I'LEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. l)1I-6423 CIVIL APPEAL FROM SUSPENSION OF DRIVER'S I.ICENSE COMMONWEALTII OF I' A, DEPARTMENT OF TRANS.. BUREAU OF I.1CENSINti ORDER George H. Kabusk. Esquire For Penn DOT ~/1L.1/97 AND NOW. this 1"'/. day of May. 1999, the appeal of Juek R. Curdone from the suspension of his driver's license is SUSTAINED und the uetion of the Department of Transportation is VACATED. BY THE COURT, Karl E. Rominger, Esquire For the Appellant ) Cof"s ""a, k,l :rlm 98-6423 CIVIl. and Report of Refusal to Suhmit to ('hcmieal Testing as Authorized hy Scetion 1547 ofthc Vehicle Couc" was reud to the defendant with one mther curious omission. Thc oflieer uid not read that portion of the form which mude it eleur to the dril'er that the chemical test wus exclusivcly of the onker's choosing. This is importunt. we helicve, in light of Mr. Curdone's explanution of whut suhsequently cnsued. Mr. Cardone indicated to the officer that he was willing to take a ehemieul test, including a breath test. He insisted that he was not refusing but just did not "want a ncedle." Even though a tcehnieian was ready to dmw hlood. the defendant persisted in his refusal. It appeared to the oflieer that Mr. Cardone was, for some reason, afraid to have a blood test. The driver did not cxplain his reasons for his reluctance to cooperate with the phlebotomist. At the hearing, he testified, credibly, that he is a recovering heroine addict and has a great concern for relapse. Also, at the hearing, the appellant proffered the testimony of Mr. James Eash who expluined the life-long nature of heroin addiction and the importance of the use of a hypodermic needle us part of the "drug ritual" which surrounds heroin. He described the concern over hypodermic needle injection and re-addietion us legitimate. Mr. Cardone testified, also, that he was aware of the other types of tests that were available and fclt thut by agreeing to at least one of them, he was not refusing. In these cases, once the Department of Transportation hus shown a prima facie case with respect to refusal, the burden shifts to the licensee to show that he was not knowing or conscious in his refusal or that he was physically unable to take the test. ~ Laurita v. DeDt. of Trans.. Bureau of Driver's Licensing, 158 Pa,Cmwlth.576, 632 A.2d 611 (1993). While it is apparent 2 98-6423 CIVIL which reigned in this case. Onicer McCoy eould hal'e, in a matter of seconds, made it clear to Mr. Cardone that his oncr to take another kind of test was ineflcetual und that it was he. the officer, who was the person entitled by law to seleet the test. Knowing that he IHld no control over the matter. Mr. Cardone may havc consented to thc lest demanded by the officer. What would have happened, however. we wi II never know. It is important to underscore our sense of what actually occurred in this case. This is not a situation, we are satisfied, involving a refractory arrcstee bent upon avoiding the consequences of his choice. It is simply a matter in which the petitioner concluded. albeit erroneously, that he was not refusing a chemical test under Pennsylvania law. He indicated that he would submit to any test other than a blood test while failing to realize that the ehoiee of the test was not his to make. Our eourts have sensed the possibility for this confusion and have suggested ways in whieh it can be avoided. Those ways were not followed in this case. ORDER AND NOW,this I'I~ day of May, 1999, the appeal of Jack R. Cardone from the suspension of his driver's license is SUSTAINED and the action of the Department of Transportation is VACATED. BY THE COURT, ,AL 5