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HomeMy WebLinkAbout08-5454ROHAN DOOKHARAN, Petitioner V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0 & - 5,q54 Civil Term Appeal From Suspension of Driver's License COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Respondent APPEAL FROM NOTICE OF LICENSE SUSPENSION AND NOW comes the Petitioner, Rohan Dookharan, by and through his counsel, R. Mark Thomas, Esquire, and files this Petition of an Appeal From Notice of License Suspension which she received from the Commonwealth of Pennsylvania, Department of Transportation, and in support thereof respectfully represents: 1. Rohan Dookharan is an adult individual who resides at 2 Lilac Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. The Commonwealth of Pennsylvania, Department of Transportation, Office of Chief Counsel, is located on the Third Floor, Riverfront Office Center, Harrisburg, Dauphin County, Pennsylvania 17104-2516. 3. On August 14, 2008, an Official Notice of License Suspension was mailed to the Petitioner advising him that his license would be suspended for a period of one (1) year, effective September 18, 2008. (A copy of the Official Notice is attached hereto as Petitioner's Exhibit "A„•) 4. The notice alleges that the Petitioner license was being suspended under Motor Vehicle Code Section 1547 (b) (1) (i), for a Chemical Test Refusal. 5. Due to the wording of the warnings concerning the consequences of the Petitioner's refusal to provide a breath sample, the Petitioner did not understand that his license would be suspended for a period of one (1) year should he refuse. 6. The Petitioner is of Gayanesse-Indian decent, who writes and speaks the English language, but the warning provided to him was ambiguous and confusing as stated. 7. As a result, the Petitioner was not adequately informed of the consequences of his refusal to submit to a blood test. 8. Under these circumstances, Petitioner believes that his driver's license cannot lawfully be suspended under this section of the Motor Vehicle Code, and, therefore, he files this appeal. WHEREFORE, Petitioner prays that this Honorable Court will schedule a hearing to determine the outcome of this appeal. Respectfully submitted, ?e r R. ark Thomas, Esquire Attorney for Petitioner/Appellant 101 South Market Street Mechanicsburg, PA 17055 (717)796-2100 ID# 41301 VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledW, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsw Date: September -Y-, 2008 Kolhan Dookharan COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: AUGUST 14, 2008 ROHAN DOOKHARAN WID # 082206345481086 002 2 LILAC DR PROCESSING DATE 08/07/2008 DRIVER LICENSE # 27709595 MECHANICSBURG PA 17050 DATE OF BIRTH 07/25/1966 Dear MR. DOOKHARAN: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1547B1I of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 07/13/2008: ¦ Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 09/18/2008 at 12:01 a.m. COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 09/18/2008. You may surrender these items before, 09/18/2008, for earlier credit;. however, you may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of $10.00. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.) in order to obtain your photo identification card. You will not receive credit toward serving any suspension until we receive your license(s). Complete the following steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's licenses, learner's permits and/or camera cards to PennDOT. If you do not have any of these items, send a sworn notarized letter stating you are aware of the suspension of your driving privilege. You must specify'in your letter why you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: r , 082206345481086 Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt confirming the date that credit began. If you do not receive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If you do not return all current driver license products, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, AUGUST 14, 2008, of this letter. If you file an appeal in the County Court, the court will give you a time-stamped certified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certified copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 09/18/2008. 082206345481086 Sincerely, 9?-" ?-- Z g O'k) Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 6:00 p.m. IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676 OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www.dmv.state.pa.us CERTIFICATE OF SERVICE I, R. Mark Thomas, Esquire, hereby certify that I have served a copy of the within document by certified mail, return receipt requested, on the following by depositing a true and correct copy of the same in the U.S. Mail at Mechanicsburg, Pennsylvania, Postage pre-paid, addressed to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Date: September , 2008 ov, elz R. Mark Thomas, Esq. t cn fi Q, SLi p ,. 3 ROHAN DOOKHA.RAN, Petitioner SEp 16 YU08 67 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. Ca- 645+ Civil Term Appeal From Suspension of Driver's License COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Respondent ORDER AND NOW, this day of September, 2008, an Appeal from Notice of License Suspension having been filed, a hearing on the Appeal is hereby scheduled for the 34 - day of 9 2008, at / 6 4" A CJ o'clock AM/PM, in Courtroom 3 of the Cumberland County Courthouse. cc: / ce of Chief Counsel, PennDot ZR. Mark Thomas, Esquire, /Court Administrator (" "-03-t,6c 9/1 q/00 ta?l J. V1NVi!TtiSNN3,d 0E :01 WV 6 1 d3S OOOZ -30Nf 0-0033113 ROHAN DOOKHARAN, VS : IN THE COURT OF COMMON PLEAS OF Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent NO. 08-5454 CIVIL TERM APPEAL FROM DRIVER'S LICENSE SUSPENSION ORDER OF COURT AND NOW, this 3rd day of November, 2008, by agreement of the parties, this matter is continued generally. We will reschedule a hearing upon th?...r.?uest of either party. By t?r6 Court, Edward E. Guido, J. ? R. Mark Thomas, Esquire For the Petitioner ,,""Office of the Chief Counsel of PennDOT Court Administrator ea PY P 1Skccd- fb Pt Lf?- :mlc c0Q1,FS M'.l(c0.. „1/7/0 6 I ? :9 vIN L_ AON BOOZ a..a; COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL BY: PHILIP M. BRICKNELL ATTORNEY I.D. NO. 88330 ASSISTANT COUNSEL VEHICLE AND TRAFFIC LAW DIVISION 1101 SOUTH FRONT STREET - THIRD FLOOR HARRISBURG, PA 17104-2516 (717) 187-2830 ROHAN DOOKHARAN, Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Appellee IN THE COURT OF COMMON : PLEAS OF CUMBERLAND COUNTY No. 08-5454, CIVIL TERM PROOF OF SERVICE I hereby certify that I did on August 4, 2009 duly served a true and correct copy of the foregoing letter regarding the above-captioned matter upon the person and in the manner indicated below: First Class Mail; Postage Pre-Paid Addressed as Follows: R. Mark Thomas, Esquire Attorney for Appellant 101 South Market Street Mechanicsburg, PA 17055 Philip M. Bricknell Date: 2-1 Se P o ? • . ilk COMMONWEALTH OF PENNSYLVANIA GOVERNOR'S OFFICE OF GENERAL COUNSEL August 4, 2009 Via First Class Mail Honorable Edward I. Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Rohan Dookharan v. PennDOT, Cumberland County Court of Common Pleas, Docket No. 08-5454 Civil Term Dear Judge Guido: Please find enclosed the following documents regarding the above-captioned matter: 1) The November 3, 2008 order of this Court continuing this matter generally; 2) The February 4, 209 opinion and order of the Commonwealth Court in Yourick v. PennDOT, 965 A.2d 341 (Pa. Cmwlth. 2009); and 3) The July 22, 2009 order of the Supreme Court in Yourrick v. PennDOT, 98 WAL 2009. The hearing of Mr. Dookharan's appeal of his license suspension for refusing to submit to chemical testing was continued pending the resolution of the Yourick appeal. The Supreme Court's order having resolved that matter, the Department of Transportation, Bureau of Driver Licensing now requests the rescheduling of Mr. Dookharan's hearing. Thank you for your attention to this matter. Very truly yours, Philip M. Bricknell Assistant Counsel 2200/pmb cc: R. Mark Thomas, Esq., 101 South Market Street, Mechanicsburg, PA 17055 OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION • RIVERFRONT OFFICE CENTER, 3rd FLOOR 2202 SOUTH FRONT STREET I HARRISBURG, PA 27104-2516 IN pennsylvama Ph: 7-17-787.28301 Fax: 727.705-1222 www.dot.state.pa.us DEPARTMENT OF TRANSPORTATION ROHAN DOOKHARAN, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, TT.'k?;_,srva VS : NO. 08-5454 CIVIL 1'E M COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPEAL FROM DRIVER'S LICENSE Respondent SUSPENSION ORDER OF COURT AND NOW, this 3rd'day of November, 2008, by agreement of the parties, this matter is continued generally. We will reschedule a hearing upon th uest of either party. By t Court, Edward E. Guido, J. R. Mark Thomas, Esquire For the Petitioner Office of the Chief Counsel of PennDOT Court Administrator : ml c :. `..ra y 1 we urto a my 1lat* r1 or+o?lror-440- Page 1 LEXSEE 656@AK6A@66ii Darlene Ann Yourick v. Commonwealth of Pennsylvania, Department of Transpor- tation, Bureau of Driver Licensing, Appellant No. 2280 C.D. 2007 COMMONWEALTH COURT OF PENNSYLVANIA 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 October 15, 2008, Argued February 4, 2009, Decided February 4, 2009, Filed PRIOR HISTORY: Appealed from No. SA 389-07. Common Pleas Court of the County of Allegheny. Gallo, Senior Judge. Yourick v. DOT, Bureau of Driver Licensing, 2008 Pa. Commw. LEXIS 395 (Pa. Commw. Ct., Sept. 5, 2008) COUNSEL: Harold H. Cramer, Asst. Chief Counsel, Harrisburg, for appellant. 1 75 Pa.C.S. § 1547. Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1)(i), commonly referred to as the "Implied Consent Law," authorizes suspension of the driving privi- leges of a licensee where the licensee is placed under arrest for driving under the influence of alcohol, and the licensee refuses a police officer's request to submit to chemical testing. Robert G. Del Greco, Jr., Pittsburgh, for appellee. JUDGES: BEFORE: HONORABLE BONNIE BRIG- ANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUT- LER, Judge. OPINION BY JUDGE BUTLER. DIS- SENTING OPINION BY JUDGE LEAVITT. Judge McGinley and Judge Pellegrini join. OPINION BY: JOHNNY J. BUTLER OPINION OPINION BY JUDGE BUTLER The Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals from the November 16, 2007 order of the Court of Common Pleas of Allegheny County (trial court) setting aside its sus- pension of the operating privileges of Darlene Ann You- rick (Yourick). PennDOT suspended Yourick's driver's license pursuant to Section 1547 of the Vehicle Code ' after she refused to submit to chemical testing following her arrest for driving under the influence of alcohol (DUI). On February 28, 2007, Yourick was arrested by Of- ficer Sheldon Summers for DUI and was taken to the Forest Hills police station, where she was asked to sub- mit to a breathalyzer test. Officer Summers read the chemical test warnings required by Section 1547(b) of the Vehicle Code to Yourick, three times, as they ap- peared on the August 2006 DL-26 Implied Consent Form (DL-26 Form). 2 She read the form and asked questions. The first sentence of Warning 3 on DL-26 Form states: "[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence." ' Based upon her interpretation of the third paragraph of the DL-26 Form and the fact that she did not have any prior refusals, Yourick refused chemical testing. 2 The August 2006 version of the DL-26 Form states: 1. Please be advised that you are under arrest for driving under the influence of alcohol or con- trolled substance in violation of Section 3802 of the Vehicle Code. 2. I am requesting that you submit to a chemical test of 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 (blood, breath or urine. Officer chooses the chemical test). 3. It is my duty as a police of- ficer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence. In ad- dition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, because of your refusal, you will be subject to the more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code, the same as if you would be convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $ 1,000.00, up to a maximum of five years in jail and a maximum fine of $ 10,000. 4. It is also my duty as a po- lice officer to inform you that you have no right to speak with an at- torney or anyone else before de- ciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or re- maining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privileges and other enhanced criminal sanctions if you are con- victed of violating Section 3802(a) of the Vehicle Code. 3 According to Yourick, Warning 3 in the DL-26 Form was revised in December of 2007 to read: "[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months if you have prior refusals or have been previously sen- Page 2 tenced for driving under the influence." Appel- lant's Brief at 22 n.8. PennDOT explains that it was again revised in May of 2008 to read: "[i]f you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months...." Appellee's Brief at App. A. (Em- phasis added). On March 30, 2007, PennDOT notified Yourick that her driving privileges were being suspended for one year, effective May 4, 2007, as a result of her refusal to submit to chemical testing on February 28, 2007. Yourick ap- pealed the suspension to the Court of Common Pleas of Allegheny County. The trial court held a de novo hearing on September 27, 2007. At the beginning of the hearing, Yourick stipulated that she was arrested for driving un- der the influence of alcohol; that there were reasonable grounds for requesting that she submit to a chemical test; that she was asked to submit to a breathalyzer test; and, that she refused to take the test. On November 16, 2007, the trial court sustained Yourick's appeal, finding that the warning read by Offic- er Summers from the DL-26 Form to Yourick was poorly drafted and vague, thereby preventing Yourick from making a knowing and conscious refusal. ` PennDOT appealed to this Court. Our review is limited to deter- mining whether the trial court committed an error of law or abused its discretion, and whether necessary findings of fact were supported by substantial evidence. Reinhart v. Dept of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa. Cmwlth. 2008). 4 The trial court issued its opinion on January 30, 2008. PennDOT argues on appeal that the trial court erred as a matter of law in concluding that, due to what it perceived as ambiguity in the DL-26 Form warnings, Yourick could not make a knowing and conscious refusal to submit to chemical testing. We agree. However, we find that the ultimate issue before this Court is whether the DL-26 Form warning was sufficient as a matter of law. The operation of a motor vehicle in Pennsylvania "is a privilege subject to such conditions as the legislature may see fit to impose, ...." Dept of Transp., Bureau of Driver Licensing v. Hoover, 147 Pa. Commw. 70, 606 A.2d 1264, 1266 (Pa. Cmwlth. 1992) (Palladino, J., dis- senting). Among the conditions imposed upon that privi- lege is the implied consent to submit to chemical testing where there is reasonable cause to believe a licensee is driving under the influence of alcohol and/or a controlled 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 substance. Hoover. Section 1547 of the Vehicle Code is a clear statement of the legislative purpose to keep drunk drivers off the roads. Id. Section 1547(b) of the Vehicle Code states: (1) If any person placed under arrest for a violation of section 3802 [(relating to DUI)] is requested to submit to chemi- cal testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privileges of the person as follows: (i) Except as set forth in subparagraph (ii), for a pe- riod of 12 months. (ii) For a period of 18 months if any of the fol- lowing apply: (A) The person's operating privileges have pre- viously been sus- pended un- der this subsection. (13) The person has, prior to the refusal un- der this pa- ragraph, been sen- tenced for: (I) an offense un- der section 3802; (II) an offense un- der former section 3731 [(relate d to serious traffic of- fenses)]; (III) an offense equivalent to an of- fense under subclause (I) or (II); or (IV) a combination of offenses set forth in this clause. Page 3 (2) It shall be the duty of the police officer to inform the person that: (i) the person's operat- ing privilege will be sus- pended upon refusal to submit to chemical testing; and (ii) if the person re- fuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties). It is well-settled that, in order to sustain a one-year license suspension under Section 1547 of the Vehicle Code, PennDOT must show that the driver (1) was placed under arrest for driving under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and, (4) was specifically warned that refusal would result in the suspension of his/her driver's license. Martinovic v. Dept of Transp., Bureau of Driver Licensing, 881 A.2d 30 (Pa. Cmwlth. 2005). Once PennDOT's "burden has been met, the motorist must prove that his refusal was not knowing or conscious or that he was physically unable to take the test." Dept of Transp., Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 446, 691 A.2d 450, 453 (1997). There is no question that Yourick was placed under arrest for driving under the influence of alcohol, was asked to submit to a chemical test, she refused to do so, and Officer Summers read all four warnings on the DL-26 Form verbatim to Yourick three times, and that she read it herself. N.T. at 4-8, 10-11, 13-14; R.R. at 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 14a-18a, 20a-21a, 23a-24a, 33a, 51a. In order for You- rick to prevail on the appeal of her license suspension Yourick must, therefore, prove that her refusal to submit to chemical testing was not knowing or conscious. 3 She attempts to do so by proving that her subjective interpre- tation of the wording of Warning 3 led her to refuse the test. 5 There is no allegation in the record or on ap- peal that Yourick was physically unable to take the test. Because the "knowing and conscious" standard is not explicitly found in Section 1547, it "must be strictly construed as it creates exceptions to the clear language and policy of the implied consent law." Hoover at 1269. There is no requirement in Vehicle Code Section 1547(b)(2)(i) that the implied consent warning issued by an officer contain any specific wording. It must merely "inform" a licensee that his/her "operating privilege will be suspended upon refusal to submit to chemical test- ing." 75 Pa.C.S. § 1547(b)(2)(i). The Pennsylvania Su- preme Court affirmed this Court's holding that a warning is legally sufficient if it informs the licensee that refusing a request for chemical testing means that he/she "will be in violation of the law and will be penalized for that vi- olation." Dept of Transp., Bureau of Driver Licensing v. Weaver, 590 Pa. 188, 191, 912 A.2d 259, 261 (2006), citing Weaver v. Dept of Transp., Bureau of Driver Li- censing, 873 A.2d 1, 3 (Pa. Cmwlth. 2005). 6 The DL-26 Form did just that. 6 We acknowledge that Weaver examined the sufficiency of an earlier version of the implied consent warning under Section 1547(b)(2)(ii), as opposed to Section 1547(b)(2)(i); however, the variation in subsections and versions does not change the ultimate conclusion that an implied consent warning in Pennsylvania must notify a licensee that he/she will be in violation of the law and will be penalized for that violation if he/she refuses to submit to chemical testing. Warning 3 of the DL-26 Form begins, "[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been pre- viously sentenced for driving under the influence." (R.R. 33a). We hold that this warning sufficiently apprises the driver hearing and/or reading it that, if he/she refuses to submit to the chemical test, his/her operating privileges "will be suspended." That a particular motorist hearing the warning may question its interpretation is not a suffi- cient basis upon which to state that the refusal was not knowing and conscious. In fact, the Pennsylvania Su- Page 4 preme Court has held that "[a] motorist's subjective be- liefs are an insufficient justification for refusing to comply with the mandates of the Implied Consent Law." Dep't of Transp., Bureau of Driver Licensing v. Scott, 546 Pa. 241, 249, 684 A.2d 539, 543 (1996) (driver did not believe the officer's warning). Further, we find it is unreasonable for a driver, whose operating privileges were granted subject to his/her implied consent to submit to chemical testing where there is reasonable cause to believe a licensee is driving under the influence of alco- hol, to believe that there would not be a penalty for fail- ure to submit to that testing. We hold, therefore, that the DL-26 Form is suffi- cient as a matter of law to meet the warning requirement under Vehicle Code Section 1547(b), and that it appro- priately apprised Yourick that her license would be sus- pended if she refused chemical testing on February 28, 2007. Based upon the foregoing, we hold that the trial court erred, and its November 16, 2007 order must be reversed. JOHNNY J. BUTLER, Judge ORDER AND NOW, this 4th day of February, 2009, the November 16, 2007 order of the Court of Common Pleas of Allegheny County is REVERSED. JOHNNY J. BUTLER, Judge DISSENT BY: MARY HANNAH LEAVITT DISSENT DISSENTING OPINION BY JUDGE LEAVITT Respectfully, I dissent. Darlene Yourick believed, mistakenly, that her driving privileges would not be af- fected if she declined chemical testing. Because You- rick's mistaken belief was created by PennDOT's poorly worded DL-26 warning, I would sustain her suspension appeal. The DL-26 warning is mandated by Section 1547(b)(2) of the Vehicle Code, which states: (2) It shall be the duty of the police of- ficer to inform the person that: (i) the person's operat- ing privilege will be sus- pended upon refusal to submit to chemical testing; and 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 (ii) if the person re- fuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c)(relating to penal- ties). 75 Pa. C.S. §1547(b)(2) (emphasis added). The warning required by Section 1547(b)(2) is drafted by PennDOT, placed on its "DL-26 Form" and distributed to police departments across Pennsylvania. The DL-26 warning is then read aloud by the arresting officer to the motorist. The DL-26 warning read to Yourick stated as fol- lows: [I]f you refuse to submit to the chemi- cal test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driv- ing under the influence. Form DL-26, Reproduced Record at 33a (R.R. ) (emphasis added). Yourick also read the form herself. Because Yourick did not have a prior refusal or convic- tion, she believed that the suspension warning did not apply to her. ' Stated otherwise, Yourick understood the final clause to apply to the entire warning, not just to the phrase "up to 18 months." The trial court found You- rick's reading reasonable, observing that PennDOT's run-on sentence was "vague." ' Accordingly, the trial court sustained Yourick's appeal. 1 Yourick testified that she was 47 years old and had worked for the University of Pittsburgh Medical Center for 25 years in its legal and med- ical malpractice departments. Her job involves reading and evaluating forms, such as patient consent forms, on a daily basis. Based on the warnings read from the DL-26 form, Yourick be- lieved that her license would not be suspended if she refused chemical testing because she never had a prior refusal and was never before sen- tenced for driving under the influence. She pointed out: The criteria, specifically the word if beginning on the very first line -- if you refuse to submit to the chemical test your operating privileges will be suspended for at least twelve months, and up to eighteen months, if you have had a prior refusal -- which I have not -- or if you have been previously sentenced for driving under the in- fluence, which I have not. Page 5 R.R. 21a. Yourick voiced her concern about the meaning of that sentence to Officer Summers, but he informed her that she had no right to speak with anyone. The trial court concluded that the DL-26 warning was vague, preventing Yourick from making a knowing and conscious refusal; there- fore, a suspension was not warranted. However, the "knowing and conscious refusal" defense is irrelevant. The real issue is whether PennDOT met its threshold burden of proving that Yourick was specifically warned that a refusal to undergo chemical testing would cause her license to be suspended. 2 Specifically, the trial court observed that PennDOT could have avoided confusion by using two sentences, not one, to convey its intended meaning that (1) any refusal results in a 12-month suspension and (2) a second refusal or previous sentence for DUI may result in an 18-month sus- pension. The majority reverses the trial court for the stated reason that the warning read to Yourick contained the words "will be suspended." The majority assigns no sig- nificance to the fact that the phrase "will be suspended" was qualified by the phrase, "if you have prior refusals or have been previously sentenced for driving under the influence." ' Further, the majority assigns no significance to the trial court's factual finding that it was the ambi- guous wording of PennDOT's DL-26 warning that caused Yourick to refuse chemical testing. 3 Periodically, PennDOT revises its DL-26 warning. The one read to Yourick has been re- placed by a warning that eliminates the ambiguity that misled Yourick. 4 The majority criticizes Yourick's under- standing of the DL-26 warning as not applying to her as "unreasonable." However, even PennDOT concedes that its DL-26 warning could be un- derstood to have the meaning Yourick gave it. PennDOT concedes that its DL-26 warning is capa- ble of two readings: that intended by PennDOT and that 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 understood by Yourick. Brief for Appellant on Reargu- ment at 22-23. 5A sentence that can be read two or more ways is ambiguous. Barasch v. Pennsylvania Public Utility Commission, 516 Pa. 142, 156, 532 A.2d 325, 332 (1987). There can be no dispute that the warning given to Yourick was ambiguous. 5 In its application for reargument, PennDOT wrote: The Bureau acknowledges that, because of the superfluous comma following the words "and up to 18 months," it is possible for this sentence to be understood to have one or the other of two different meanings. Application for Reargument En Banc at 7. The same acknowledgement appeared in PennDOT's Brief on Reargument at 22. It is not the "super- fluous comma" alone that creates the ambiguity. There is one central declaration in the sentence, i. e., "you will be suspended," and it is modified by two conditional and dependent clauses that begin with the word "if." It is the presence of two dependent clauses in one sentence that creates the ambiguity, and removing the "superfluous com- ma" does not eliminate the ambiguity. Ambiguities should and will be construed against the government. This principle has its foundation in the rule of lenity that provides that any ambiguity in a crim- inal statute will be construed in favor of the defendant. The rule of lenity requires a clear and unequivocal warning in lan- guage that people generally would under- stand, as to what actions would expose them to liability for penalties and what the penalties would be. Commonwealth v. Reaser, 2004 PA Super 148, 851 A.2d 144, 149 (Pa. Super. 2004) (quoting Commonwealth v. Cluck, 252 Pa. Super. 228, 381 A.2d 472, 477 (Pa. Su- per. 1977)). Application of the rule of lenity extends beyond the context of criminal statutes. 6 6 Consistent with the rule of lenity, the Statu- tory Construction Act of 1972, 1 Pa. C.S. § 1928, requires that every penal provision, whether in a civil or criminal statute, be construed strictly. Page 6 It is a general principle, applicable in a variety of circumstances, that if "there is any ambiguity in the terms of a notice, rendering its meaning doubtful, the doubt must be resolved against the person giving the notice." 66 C.J.S. Notice §33 at 471 (2002). This prin- ciple applies with equal force to the "person" that hap- pens to be a government agency. The Court of Appeals for the District of Columbia has explained: In other areas of administrative law, we have emphasized the importance of eliminating ambiguity and, where we have found ambiguity, we have con- strued it against the government agency that drafted the language. In the Matter of D.R., 541 A.2d 1260, 1264 (D.C. 1988). 7 7 In the above-cited case, the statute required that a revocation of a decision to relinquish pa- rental rights must be made in writing. The agency form notifying parents of this requirement was ambiguous. Because the agency created the am- biguity, the Court held that a parent receiving this form could effect a revocation either orally or in writing. See also Basken v. District of Columbia Board of Zoning Adjustment, 946 A.2d 356 (D.C. 2008) (an ambiguity in a revised building permit was resolved in favor of the individuals seeking review such that the issuance of the revised building permit did not trigger the 60-day appeal period). Likewise, the appellate courts of Pennsylvania have held, in a variety of contexts, that the individual who receives an ambiguous governmental directive, whether drafted by the legislature, a court or an administrative agency, is entitled to have the ambiguity construed in her favor. For example, in Carborundum Company v. Com- bustion Engineering, Inc., 263 Pa. Super. 1, 396 A.2d 1346 (Pa. Super. 1979), the Superior Court concluded that a finding of civil contempt was improper given the language in the order that was allegedly violated, ex- plaining: The entry of an injunction is, in some respects, analogous to the publication of a penal statute. It is a notice that certain things must be done or not done, under a penalty to be fixed by the court. Such a decree should be as definite, clear, and precise in its terms as possible, so that there may be no reason or excuse for mi- sunderstanding or disobeying it; and, 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 when practicable, it should plainly indi- cate to the defendant all of the acts which he is restrained from doing, without call- ing upon him for inferences or conclu- sions about which persons may well dif- fer. Thus, any ambiguities or omissions must be construed in favor of the person charged with contempt. Id. at 1348. Similarly, in In re: Return of the McKean County Tax Claim Bureau, 677 A.2d 1325 (Pa. Cmwlth. 1996), this Court set aside a tax sale because of an un- clear, ambiguous notice sent to the property owner by the tax claim bureau. Likewise, in Yalianatos v. Zoning Hearing Board of Richmond Township, 766 A.2d 903 (Pa. Cmwlth. 2001), this Court set aside a zoning ordin- ance as void ab initio because the township's published notice that the ordinance would be enacted at the up- coming meeting was unclear. We explained that "the townships draft the public notices and ... this Court and our Supreme Court have consistently interpreted ambi- guous notices in favor of property owners." Id. at 906. The principle of interpreting ambiguous language against the drafter has been applied specifically to the DL-26 warning. This Court has held that a "specific warning" under Section 1547(b)(2) is one that "precisely enunciate[s] ... that a driver's license will be revoked." Everhart v. Commonwealth of Pennsylvania, 54 Pa. Commw. 22, 420 A.2d 13, 15 (Pa. Cmwlth. 1980) (em- phasis added). In Everhart, we found that using the words "could be revoked" instead of "will be suspended" created a doubt. Accordingly, the licensee was entitled to have the doubt construed in his favor and against Penn- DOT, which was held not to have satisfied the mandate of Section 1547(b)(2). a See also Peppelman v. Com- monwealth, 44 Pa. Commw. 262, 403 A.2d 1041, 1043 (Pa. Cmwlth. 1979) (an officer's statement that the mo- torist's refusal to undergo chemical testing "could" result in a suspension was found to be an "inaccurate perfor- mance" of the statutory warning thereby requiring a reinstatement of the operator's license). 8 In Everhart, the matter was remanded to the trial court for a determination of whether the of- ficer subsequently read the licensee a proper warning that his license "will" be revoked. Page 7 By PennDOT's own admission, the DL-26 warning read to Yourick was capable of being construed as not applying to her because she had not previously refused testing and had never been convicted of DUI. 9 The trial court found, as fact, that Yourick refused chemical test- ing for the reason that she had no prior refusals or DUI sentences. Indeed, Yourick testified that had she unders- tood the true meaning of the DL-26 warning, she would have agreed to the request for chemical testing. Instead of being warned, Yourick received misleading comfort from the phraseology of the DL-26 warning read to her. 9 PennDOT argues that the notice is not "so ambiguous" that it could not satisfy the mandate of 75 Pa. C.S. §1547(b)(2). It offers no guidance on how to separate a "so ambiguous" notice from a merely "ambiguous" notice. It offers no author- ity to support the proposition that an ambiguous notice can ever satisfy a statutory mandate. Precedent establishes that a doubtful or ambiguous notice will be construed against the drafter. This prin- ciple has been applied, specifically, to warnings given under Section 1547(b) of the Vehicle Code. Yourick is entitled to have the ambiguity in PennDOT's DL-26 warning construed in her favor. As a consequence, PennDOT did not meet its burden of proving that it had "specifically warned" Yourick, as was required in order for PennDOT to suspend her license. Todd v. Depart- ment of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 197, 723 A.2d 655, 657 (1999). 10 Yourick was not warned; to the contrary, she was misinformed. The officer's "inaccurate performance" of the statutory warn- ing requires that Yourick's operator's license be reins- tated. Peppelman, 403 A.2d at 1043. 10 To suspend a license under authority of Section 1547(b)(2), the Department of Transpor- tation must prove that the driver (1) was placed under arrest for driving under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the suspen- sion of his or her driver's license. Todd, 555 Pa. at 197, 723 A.2d at 657-658 (emphasis added). This is not a close case. I would affirm the trial court. MARY HANNAH LEAVITT, Judge Judge McGinley and Judge Pellegrini join. Commonwealth of Pennsylvania Department of Transportation IN THE SUPREME COURT OF PENNSYLVANIA li 7 ?fl(Ja WESTERN DISTRICT Office of Chief Counsel Vehicle N Traffic ' aw Division COMMONWEALTH OF PENNSYLVANIA, : No. 98 WAL 2009 DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, Petition for Allowance of Appeal from the Order of the Commonwealth Court Respondent V. DARLENE ANN YOURICK, Petitioner 141011:4N PER CURIAM AND NOW, this 22nd day of July, 2009, the Petition for Allowance of Appeal is hereby DENIED. A True Copy John A. Vaskov As of: J 22,2 9Attest: v,---??'-- Dep y Pro onotary Supfeme urt of Pennsylvania t Ht 2009 SEP 24 A : 20 ROHAN DOOKHARAN, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND CUMBERLAND COUNTY V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent NO. 5454 CIVIL 2008 MOTION TO RESCHEDULE HEARING NOW COMES, Respondent, the Commonwealth of Pennsylvania, Department of Transportation (the "Department'), by and through its attorney, Philip M. Bricknell, and moves for the rescheduling of the hearing of the above-captioned matter as follows: 1. In this matter, Dookharan is appealing a suspension of his motor vehicle operating Privilege imposed by the Department pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547 (relating to chemical testing to determine amount of alcohol or controlled substance). 2. The above captioned matter was scheduled for a hearing on the 3'd day of November, 2008, at 10:00 a.m. in Courtroom No. 3 of the Cumberland County Courthouse. 3. The hearing was continued indefinitely by Order of this Court entered on November 3, 2008, with rescheduling of the "hearing upon request of either party." A copy of the Order is attached and marked as "Exhibit A." 4. A continuance was requested because Dookharan expressed his intention to rely on a decision by the Commonwealth Court at Yourick v. PennDOT, 2280 C.D. 2007. The Department, knowing that the Commonwealth Court intended to review en banc its initial decision in Yourick asked for a continuance until the appellate review was completed. 5. The Commonwealth Court completed its en banc review and issued an opinion in the denying Yourick's appeal at Yourick v. PennDOT, 965 A.2d 341 (Pa. Cmwlth. 2009). A copy of the February 4, 2009 opinion and order is attached and marked as "Exhibit B." 6. Yourick sought leave to appeal the Commonwealth Court's decision, but the Supreme Court denied that petition. A copy of the Supreme Court's July 22, 2009 order is attached and marked as "Exhibit C." 7. The appellate process having been exhausted in the Yourick matter, the Department submitted an informal request to this Court to reschedule the hearing of Dookharan's appeal on August 4, 2009, and served a copy of the request on Dookharan's counsel. A copy of the Department's request is attached and marked as "Exhibit D." 8. In light of the forgoing circumstances, the Department respectfully moves that this Court reschedule the hearing of Dookharan's appeal. Respectfully submitted, Date: September 25, 2009 •? Philip M. Bricknell Assistant Counsel Pennsylvania Department of Transportation Office of Chief Counsel 1101 South Front Street, 3rd Floor Harrisburg, PA 17104-2516 (717) 787-2830 I.D. no. 88330 VERIFICATION I, Philip M. Bricknell, verify that the facts contained in the foregoing document are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Date: September 25, 2009 f ` Philip M. Bricknell .1 1? ROHAN DOOKHARAN, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND CUMBERLAND COUNTY V. COMMONWEALTH OF PENNSYLVANIA, NO. 5454 CIVIL 2008 DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent CERTIFICATE OF SERVICE I, Philip M. Bricknell, certify that on this date, I caused a copy of Respondent's Motion to Reschedule Hearing to be served by first class mail, postage pre-paid on Petitioner's Attorney of record, R. Mark Thomas, Esq. at the following address: R. Mark Thomas, Esq. 101 South Market Street Mechanicsburg, PA 17055 Date: September 28, 2009 Philip M. Bricknell Counsel for Respondent APPENDIX A November 3, 2008 Order of this Court ROHAN DOOKHARAN, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA VS NO. 08-5454 CIVIL TERM` COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPEAL FROM DRIVER'S LICENSE Respondent SUSPENSION ORDER OF COURT AND NOW, this 3rd'day of November, 2008, by agreement of the parties, this matter is continued generally. We will reschedule a hearing upon the.. uest of either party. By tPl? Court, Edward E. Guido, J. R. Mark Thomas, Esquire For the Petitioner Office of the Chief Counsel of PennDOT Court Administrator ml c id N own zi Pa, APPENDIX B February 4, 209 opinion and order of the Commonwealth Court in Yourick v. PennDOT, 965 A.2d 341 (Pa. Cmwlth. 2009) Page 1 LEXSEE u66@AK6A@66fi Darlene Ann Yourick v. Commonwealth of Pennsylvania, Department of Transpor- tation, Bureau of Driver Licensing, Appellant No. 2280 C.D. 2007 COMMONWEALTH COURT OF PENNSYLVANIA 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 October 15, 2008, Argued February 4, 2009, Decided February 4, 2009, Filed PRIOR HISTORY: Appealed from No. SA 389-07. Common Pleas Court of the County of Allegheny. Gallo, Senior Judge. Yourick v. DOT, Bureau of Driver Licensing, 2008 Pa. Commw. LEXIS 395 (Pa. Commw. Ct., Sept. 5, 2008) COUNSEL: Harold H. Cramer, Asst. Chief Counsel, Harrisburg, for appellant. 1 75 Pa.C.S. § 1547. Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1)(i), commonly referred to as the "Implied Consent Law," authorizes suspension of the driving privi- leges of a licensee where the licensee is placed under arrest for driving under the influence of alcohol, and the licensee refuses a police officer's request to submit to chemical testing. Robert G. Del Greco, Jr., Pittsburgh, for appellee. JUDGES: BEFORE: HONORABLE BONNIE BRIG- ANCE LEADBETTER, President Judge, HONORABLE BERNARD L. MCGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUT- LER, Judge. OPINION BY JUDGE BUTLER. DIS- SENTING OPINION BY JUDGE LEAVITT. Judge McGinley and Judge Pellegrini join. OPINION BY: JOHNNY J. BUTLER OPINION OPINION BY JUDGE BUTLER The Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals from the November 16, 2007 order of the Court of Common Pleas of Allegheny County (trial court) setting aside its sus- pension of the operating privileges of Darlene Ann You- rick (Yourick). PennDOT suspended Yourick's driver's license pursuant to Section 1547 of the Vehicle Code ' after she refused to submit to chemical testing following her arrest for driving under the influence of alcohol (DUI). On February 28, 2007, Yourick was arrested by Of- ficer Sheldon Summers for DUI and was taken to the Forest Hills police station, where she was asked to sub- mit to a breathalyzer test. Officer Summers read the chemical test warnings required by Section 1547(b) of the Vehicle Code to Yourick, three times, as they ap- peared on the August 2006 DL-26 Implied Consent Form (DL-26 Form). 2 She read the form and asked questions. The first sentence of Warning 3 on DL-26 Form states: "[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence." ' Based upon her interpretation of the third paragraph of the DL-26 Form and the fact that she did not have any prior refusals, Yourick refused chemical testing. 2 The August 2006 version of the DL-26 Form states: 1. Please be advised that you are under arrest for driving under the influence of alcohol or con- trolled substance in violation of Section 3802 of the Vehicle Code. 2. I am requesting that you submit to a chemical test of 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 (blood, breath or urine. Officer chooses the chemical test). 3. It is my duty as a police of- ficer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence. In ad- dition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, because of your refusal, you will be subject to the more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code, the same as if you would be convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $ 1,000.00, up to a maximum of five years in jail and a maximum fine of $ 10,000. 4. It is also my duty as a po- lice officer to inform you that you have no right to speak with an at- torney or anyone else before de- ciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or re- maining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privileges and other enhanced criminal sanctions if you are con- victed of violating Section 3802(a) of the Vehicle Code. 3 According to Yourick, Warning 3 in the DL-26 Form was revised in December of 2007 to read: "[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months if you have prior refusals or have been previously sen- Page 2 tenced for driving under the influence." Appel- lant's Brief at 22 n.8. PennDOT explains that it was again revised in May of 2008 to read: "[i]f you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months...." Appellee's Brief at App. A. (Em- phasis added). On March 30, 2007, PennDOT notified Yourick that her driving privileges were being suspended for one year, effective May 4, 2007, as a result of her refusal to submit to chemical testing on February 28, 2007. Yourick ap- pealed the suspension to the Court of Common Pleas of Allegheny County. The trial court held a de novo hearing on September 27, 2007. At the beginning of the hearing, Yourick stipulated that she was arrested for driving un- der the influence of alcohol; that there were reasonable grounds for requesting that she submit to a chemical test; that she was asked to submit to a breathalyzer test; and, that she refused to take the test. On November 16, 2007, the trial court sustained Yourick's appeal, finding that the warning read by Offic- er Summers from the DL-26 Form to Yourick was poorly drafted and vague, thereby preventing Yourick from making a knowing and conscious refusal. ` PennDOT appealed to this Court. Our review is limited to deter- mining whether the trial court committed an error of law or abused its discretion, and whether necessary findings of fact were supported by substantial evidence. Reinhart v. Dept of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa. Cmwlth. 2008). 4 The trial court issued its opinion on January 30, 2008. PennDOT argues on appeal that the trial court erred as a matter of law in concluding that, due to what it perceived as ambiguity in the DL-26 Form warnings, Yourick could not make a knowing and conscious refusal to submit to chemical testing. We agree. However, we find that the ultimate issue before this Court is whether the DL-26 Form warning was sufficient as a matter of law. The operation of a motor vehicle in Pennsylvania "is a privilege subject to such conditions as the legislature may see fit to impose, ...." Dept of Transp., Bureau of Driver Licensing v. Hoover, 147 Pa. Commw. 70, 606 A.2d 1264, 1266 (Pa. Cmwlth. 1992) (Palladino, J., dis- senting). Among the conditions imposed upon that privi- lege is the implied consent to submit to chemical testing where there is reasonable cause to believe a licensee is driving under the influence of alcohol and/or a controlled 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 substance. Hoover. Section 1547 of the Vehicle Code is a clear statement of the legislative purpose to keep drunk drivers off the roads. M. Section 1547(b) of the Vehicle Code states: (1) If any person placed under arrest for a violation of section 3802 [(relating to DUI)] is requested to submit to chemi- cal testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privileges of the person as follows: (i) Except as set forth in subparagraph (ii), for a pe- riod of 12 months. (ii) For a period of 18 months if any of the fol- lowing apply: (A) The person's operating privileges have pre- viously been sus- pended un- der this subsection. (B) The person has, prior to the refusal un- der this pa- ragraph, been sen- tenced for: (I) an offense un- der section 3802; (II) an offense un- der former section 3731 [(relate d to serious traffic of- fenses)]; (III) an offense equivalent to an of- fense under subclause (I) or (11); or (IV) a combination of offenses set forth in this clause. (2) It shall be the duty of the police officer to inform the person that: (i) the person's operat- ing privilege will be sus- pended upon refusal to submit to chemical testing; and (ii) if the person re- fuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties). Page 3 It is well-settled that, in order to sustain a one-year license suspension under Section 1547 of the Vehicle Code, PennDOT must show that the driver (I)- was placed under arrest for driving under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and, (4) was specifically warned that refusal would result in the suspension of his/her driver's license. Martinovic v. Dept of Transp., Bureau of Driver Licensing, 881 A.2d 30 (Pa. Cmwlth. 2005). Once PennDOTs "burden has been met, the motorist must prove that his refiisal was not knowing or conscious or that he was physically unable to take the test." Dept of Transp., Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 446, 691 A.2d 450, 453 (1997). There is no question that Yourick was placed under arrest for driving under the influence of alcohol, was asked to submit to a chemical test, she refused to do so, and Officer Summers read all four warnings on the DL-26 Form verbatim to Yourick three times, and that she read it herself. N.T. at 4-8, 10-11, 13-14; R.R. at 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 14a-18a, 20a-21a, 23a-24a, 33a, 51a. In order for You- rick to prevail on the appeal of her license suspension Yourick must, therefore, prove that her refusal to submit to chemical testing was not knowing or conscious. I She attempts to do so by proving that her subjective interpre- tation of the wording of Warning 3 led her to refuse the test. 5 There is no allegation in the record or on ap- peal that Yourick was physically unable to take the test. Because the "knowing and conscious" standard is not explicitly found in Section 1547, it "must be strictly construed as it creates exceptions to the clear language and policy of the implied consent law." Hoover at 1269. There is no requirement in Vehicle Code Section 1547(b)(2)(i) that the implied consent warning issued by an officer contain any specific wording. It must merely "inform" a licensee that his/her "operating privilege will be suspended upon refusal to submit to chemical test- ing." 75 Pa.C.S. § 1547(b)(2)(i). The Pennsylvania Su- preme Court affirmed this Court's holding that a warning is legally sufficient if it informs the licensee that refusing a request for chemical testing means that he/she "will be in violation of the law and will be penalized for that vi- olation." Dept of Transp., Bureau of Driver Licensing v. Weaver, 590 Pa. 188, 191, 912 A.2d 259, 261 (2006), citing Weaver v. Dept of Transp., Bureau of Driver Li- censing, 873 A.2d 1, 3 (Pa. Cmwlth. 2005). 6 The DL-26 Form did just that. 6 We acknowledge that Weaver examined the sufficiency of an earlier version of the implied consent warning under Section 1547(b)(2)(ii), as opposed to Section 1547(b)(2)(i); however, the variation in subsections and versions does not change the ultimate conclusion that an implied consent warning in Pennsylvania must notify a licensee that he/she will be in violation of the law and will be penalized for that violation if he/she refuses to submit to chemical testing. Warning 3 of the DL-26 Form begins, "[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been pre- viously sentenced for driving under the influence." (R.R. 33a). We hold that this warning sufficiently apprises the driver hearing and/or reading it that, if he/she refuses to submit to the chemical test, his/her operating privileges "will be suspended." That a particular motorist hearing the warning may question its interpretation is not a suffi- cient basis upon which to state that the refusal was not knowing and conscious. In fact, the Pennsylvania Su- Page 4 preme Court has held that "[a] motorist's subjective be- liefs are an insufficient justification for refusing to comply with the mandates of the Implied Consent Law." Dep't of Transp., Bureau of Driver Licensing v. Scott, 546 Pa. 241, 249, 684 A.2d 539, 543 (1996) (driver did not believe the officer's warning). Further, we find it is unreasonable for a driver, whose operating privileges were granted subject to his/her implied consent to submit to chemical testing where there is reasonable cause to believe a licensee is driving under the influence of alco- hol, to believe that there would not be a penalty for fail- ure to submit to that testing. We hold, therefore, that the DL-26 Form is suffi- cient as a matter of law to meet the warning requirement under Vehicle Code Section 1547(b), and that it appro- priately apprised Yourick that her license would be sus- pended if she refused chemical testing on February 28, 2007. Based upon the foregoing, we hold that the trial court erred, and its November 16, 2007 order must be reversed. JOHNNY J. BUTLER, Judge ORDER AND NOW, this 4th day of February, 2009, the November 16, 2007 order of the Court of Common Pleas of Allegheny County is REVERSED. JOHNNY J. BUTLER, Judge DISSENT BY: MARY HANNAH LEAVITT DISSENT DISSENTING OPINION BY JUDGE LEAVITT Respectfully, I dissent. Darlene Yourick believed, mistakenly, that her driving privileges would not be af- fected if she declined chemical testing. Because You- rick's mistaken belief was created by PennDOT's poorly worded DL-26 warning, I would sustain her suspension appeal. The DL-26 warning is mandated by Section 1547(b)(2) of the Vehicle Code, which states: (2) It shall be the duty of the police of- ficer to inform the person that: (i) the person's operat- ing privilege will be sus- pended upon refusal to submit to chemical testing; and 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 (ii) if the person re- fuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c)(relating to penal- ties). 75 Pa. C.S. §1547(b)(2) (emphasis added). The warning required by Section 1547(b)(2) is drafted by PennDOT, placed on its "DL-26 Form" and distributed to police departments across Pennsylvania. The DL-26 warning is then read aloud by the arresting officer to the motorist. The DL-26 warning read to Yourick stated as fol- lows: [I]f you refuse to submit to the chemi- cal test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driv- ing under the influence. Form DL-26, Reproduced Record at 33a (R.R. ) (emphasis added). Yourick also read the form herself. Because Yourick did not have a prior refusal or convic- tion, she believed that the suspension warning did not apply to her. ` Stated otherwise, Yourick understood the final clause to apply to the entire warning, not just to the phrase "up to 18 months." The trial court found You- rick's reading reasonable, observing that PennDOTs run-on sentence was "vague." ' Accordingly, the trial court sustained Yourick's appeal. 1 Yourick testified that she was 47 years old and had worked for the University of Pittsburgh Medical Center for 25 years in its legal and med- ical malpractice departments. Her job involves reading and evaluating forms, such as patient consent forms, on a daily basis. Based on the warnings read from the DL-26 form, Yourick be- lieved that her license would not be suspended if she refused chemical testing because she never had a prior refusal and was never before sen- tenced for driving under the influence. She pointed out: The criteria, specifically the word if beginning on the very first Page 5 line -- if you refuse to submit to the chemical test your operating privileges will be suspended for at least twelve months, and up to eighteen months, if you have had a prior refusal -- which I have not -- or if you have been previously sentenced for driving under the in- fluence, which I have not. R.R. 21 a. Yourick voiced her concern about the meaning of that sentence to Officer Summers, but he informed her that she had no right to speak with anyone. The trial court concluded that the DL-26 wanting was vague, preventing Yourick from making a knowing and conscious refusal; there- fore, a suspension was not warranted. However, the "knowing and conscious refusal" defense is irrelevant. The real issue is whether PennDOT met its threshold burden of proving that Yourick was specifically warned that a refiisal to undergo chemical testing would cause her license to be suspended. 2 Specifically, the trial court observed that PennDOT could have avoided confusion by using two sentences, not one, to convey its intended meaning that (1) any refusal results in a 12-month suspension and (2) a second refusal or previous sentence for DUI may result in an 18-month sus- pension. The majority reverses the trial court for the stated reason that the warning read to Yourick contained the words "will be suspended." The majority assigns no sig- nificance to the fact that the phrase "will be suspended" was qualified by the phrase, "if you have prior refusals or have been previously sentenced for driving under the influence." ' Further, the majority assigns no significance to the trial court's factual finding that it was the ambi- guous wording of PennDOTs DL-26 warning that caused Yourick to refuse chemical testing. ` 3 Periodically, PennDOT revises its DL-26 warning. The one read to Yourick has been re- placed by a warning that eliminates the ambiguity that misled Yourick. 4 The majority criticizes Yourick's under- standing of the DL-26 warning as not applying to her as "unreasonable." However, even PennDOT concedes that its DL-26 warning could be un- derstood to have the meaning Yourick gave it. PennDOT concedes that its DL-26 warning is capa- ble of two readings: that intended by PennDOT and that 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 understood by Yourick. Brief for Appellant on Reargu- ment at 22-23. S A sentence that can be read two or more ways is ambiguous. Barasch v. Pennsylvania Public Utility Commission, 516 Pa. 142, 156, 532 A.2d 325, 332 (1987). There can be no dispute that the warning given to Yourick was ambiguous. 5 In its application for reargument, PennDOT wrote: The Bureau acknowledges that, because of the superfluous comma following the words "and up to 18 months," it is possible for this sentence to be understood to have one or the other of two different meanmgs. Application for Reargument En Banc at 7. The same acknowledgement appeared in PennDOT's Brief on Reargument at 22. It is not the "super- fluous comma" alone that creates the ambiguity. There is one central declaration in the sentence, i.e., "you will be suspended," and it is modified by two conditional and dependent clauses that begin with the word "if." It is the presence of two dependent clauses in one sentence that creates the ambiguity, and removing the "superfluous com- ma" does not eliminate the ambiguity. Ambiguities should and will be construed against the government. This principle has its foundation in the rule of lenity that provides that any ambiguity in a crim- inal statute will be construed in favor of the defendant. The rule of lenity requires a clear and unequivocal warning in lan- guage that people generally would under- stand, as to what actions would expose them to liability for penalties and what the penalties would be. Commonwealth v. Reaser, 2004 PA Super 148, 851 A.2d 144, 149 (Pa. Super. 2004) (quoting Commonwealth v. Cluck, 252 Pa. Super. 228, 381 A.2d 472, 477 (Pa. Su- per. 1977)). Application of the rule of lenity extends beyond the context of criminal statutes. 6 6 Consistent with the rule of lenity, the Statu- tory Construction Act of 1972, 1 Pa. C.S. §1928, requires that every penal provision, whether in a civil or criminal statute, be construed strictly. Page 6 It is a general principle, applicable in a variety of circumstances, that if "there is any ambiguity in the terms of a notice, rendering its meaning doubtful, the doubt must be resolved against the person giving the notice." 66 C.J.S. Notice §33 at 471 (2002). This prin- ciple applies with equal force to the "person" that hap- pens to be a government agency. The Court of Appeals for the District of Columbia has explained: In other areas of administrative law, we have emphasized the importance of eliminating ambiguity and, where we have found ambiguity, we have con- strued it against the government agency that drafted the language. In the Matter of D.R., 541 A.2d 1260, 1264 (D.C. 1988). 7 7 In the above-cited case, the statute required that a revocation of a decision to relinquish pa- rental rights must be made in writing. The agency form notifying parents of this requirement was ambiguous. Because the agency created the am- biguity, the Court held that a parent receiving this form could effect a revocation either orally or in writing. See also Basken v. District of Columbia Board of Zoning Adjustment, 946 A.2d 356 (D.C. 2008) (an ambiguity in a revised building permit was resolved in favor of the individuals seeking review such that the issuance of the revised building permit did not trigger the 60-day appeal period). Likewise, the appellate courts of Pennsylvania have held, in a variety of contexts, that the individual who receives an ambiguous governmental directive, whether drafted by the legislature, a court or an administrative agency, is entitled to have the ambiguity construed in her favor. For example, in Carborundum Company v. Com- bustion Engineering, Inc., 263 Pa. Super. 1, 396 A.2d 1346 (Pa. Super. 1979), the Superior Court concluded that a finding of civil contempt was improper given the language in the order that was allegedly violated, ex- plaining: The entry of an injunction is, in some respects, analogous to the publication of a penal statute. It is a notice that certain things must be done or not done, under a penalty to be fixed by the court. Such a decree should be as definite, clear, and precise in its terms as possible, so that there may be no reason or excuse for mi- sunderstanding or disobeying it; and, 965 A.2d 341; 2009 Pa. Commw. LEXIS 24 when practicable, it should plainly indi- cate to the defendant all of the acts which he is restrained from doing, without call- ing upon him for inferences or conclu- sions about which persons may well dif- fer. Thus, any ambiguities or omissions must be construed in favor of the person charged with contempt. Id. at 1348. Similarly, in In re: Return of the McKean County Tax Claim Bureau, 677 A.2d 1325 (Pa. Cmwlth. 1996), this Court set aside a tax sale because of an un- clear, ambiguous notice sent to the property owner by the tax claim bureau. Likewise, in Valianatos v. Zoning Hearing Board of Richmond Township, 766 A.2d 903 (Pa. Cmwlth. 2001), this Court set aside a zoning ordin- ance as void ab initio because the township's published notice that the ordinance would be enacted at the up- coming meeting was unclear. We explained that "the townships draft the public notices and ... this Court and our Supreme Court have consistently interpreted ambi- guous notices in favor of property owners." Id. at 906. The principle of interpreting ambiguous language against the drafter has been applied specifically to the DL-26 warning. This Court has held that a "specific warning" under Section 1547(b)(2) is one that "precisely enunciate[s] ... that a driver's license will be revoked." Everhart v. Commonwealth of Pennsylvania, 54 Pa. Commw. 22, 420 A.2d 13, 15 (Pa. Cmwlth. 1980) (em- phasis added). In Everhart, we found that using the words "could be revoked" instead of "will be suspended" created a doubt. Accordingly, the licensee was entitled to have the doubt construed in his favor and against Penn- DOT, which was held not to have satisfied the mandate of Section 1547(6)(2). a See also Peppelman v. Com- monwealth, 44 Pa. Commw. 262, 403 A.2d 1041, 1043 (Pa. Cmwlth. 1979) (an officer's statement that the mo- torist's refusal to undergo chemical testing "could" result in a suspension was found to be an "inaccurate perfor- mance" of the statutory warning thereby requiring a reinstatement of the operator's license). 8 In Everhart, the matter was remanded to the trial court for a determination of whether the of- ficer subsequently read the licensee a proper warning that his license "will" be revoked. Page 7 By PennDOT's own admission, the DL-26 warning read to Yourick was capable of being construed as not applying to her because she had not previously refused testing and had never been convicted of DUI. ' The trial court found, as fact, that Yourick refused chemical test- ing for the reason that she had no prior refusals or DUI sentences. Indeed, Yourick testified that had she unders- tood the true meaning of the DL-26 warning, she would have agreed to the request for chemical testing. Instead of being warned, Yourick received misleading comfort from the phraseology of the DL-26 warning read to her. 9 PennDOT argues that the notice is not "so ambiguous" that it could not satisfy the mandate of 75 Pa. C.S. §1547(6)(2). It offers no guidance on how to separate a "so ambiguous" notice from a merely "ambiguous" notice. It offers no author- ity to support the proposition that an ambiguous notice can ever satisfy a statutory mandate. Precedent establishes that a doubtful or ambiguous notice will be construed against the drafter. This prin- ciple has been applied, specifically, to warnings given under Section 1547(b) of the Vehicle Code. Yourick is entitled to have the ambiguity in PennDOTs DL-26 warning construed in her favor. As a consequence, PennDOT did not meet its burden of proving that it had "specifically warned" Yourick, as was required in order for PennDOT to suspend her license. Todd v. Depart- ment of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 197, 723 A.2d 655, 657 (1999). 10 Yourick was not warned; to the contrary, she was misinformed. The officer's "inaccurate performance" of the statutory warn- ing requires that Yourick's operator's license be reins- tated. Peppelman, 403 A.2d at 1043. 10 To suspend a license under authority of Section 1547(b)(2), the Department of Transpor- tation must prove that the driver (1) was placed under arrest for driving under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the suspen- sion of his or her driver's license. Todd, 555 Pa. at 197, 723 A.2d at 657-658' (emphasis added). This is not a close case. I would affirm the trial court. MARY HANNAH LEAVITT, Judge Judge McGinley and Judge Pellegrini join. APPENDIX C July 22, 2009 order of the Supreme Court in Yourick v. PennDOT, 98 WAL 2009 Commonwealth of Pennsylvania Department of Transportation IN THE SUPREME COURT OF PENNSYLVANIA { ) M(ic WESTERN DISTRICT Office of Chief Counsel 'vehicle & Traffic ' aw Division COMMONWEALTH OF PENNSYLVANIA, : No. 98 WAL 2009 DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, Petition for Allowance of Appeal from the Order of the Commonwealth Court Respondent V. DARLENE ANN YOURIC.K, Petitioner ORDER PER CURIAM AND NOW, this 22nd day of July, 2009, the Petition for Allowance of Appeal is hereby DENIED. A True Copy John A. Vaskov As of: J 22,219 ??-- Attest: Deputy Pro onotary Supfeme urt of Pennsylvania APPENDIX D August 4, 2009 letter from Department to this Court regarding rescheduling hearing of Dookharan v. Department, No. 5454 CIVIL 2008. COMMONWEALTH OF PENNSYLVANIA GOVERNOR'S OFFICE OF GENERAL COUNSEL August 4, 2009 Via First Class Mail Honorable Edward I. Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Rohan Dookharan v. PennDOT, Cumberland County Court of Common Pleas, Docket No. 08-5454 Civil Term Dear Judge Guido: Please find enclosed the following documents regarding the above-captioned matter: 1) The November 3, 2008 order of this Court continuing this matter generally; 2) The February 4, 209 opinion and order of the Commonwealth Court in Yourick v. PennDOT, 965 A.2d 341 (Pa. Cmwlth. 2009); and 3) The July 22, 2009 order of the Supreme Court in Yourick v. PennDOT, 98 WAL 2009. The hearing of Mr. Dookharan's appeal of his license suspension for refusing to submit to chemical testing was continued pending the resolution of the Yourick appeal. The Supreme Court's order having resolved that matter, the Department of Transportation, Bureau of Driver Licensing now requests the rescheduling of Mr. Dookharan's hearing. Thank you for your attention to this matter. Very truly yours, Philip M. Bricknell Assistant Counsel 2200/pmb cc: R. Mark Thomas, Esq., 101 South Market Street, Mechanicsburg, PA 17055 OFFICE OF CHIEF COUNSEL ( VEHICLE & TRAFFIC LAW DIVISION pen nia RIVERFRONT OFFICE CENTER, P FLOOR I uoi SOUTH FRONT STREET I HARRISBURG, PA i72o4-2S26 Ph: 727.787.28301 Fax: 727.705.3.222 1 www.dotstate.pa.us DEPARTMENT OF TRANSPORTATION FILED , t r ita OF THE Ppr ! ?!; , c j ppy 2009 SEP 28 ASS E: of - a SEP 3 0 2009 ROHAN DOOKHARAN, IN THE COURT OF COMMON Petitioner PLEAS OF CUMBERLAND CUMBERLAND COUNTY V. COMMONWEALTH OF PENNSYLVANIA, NO. 5454 CIVIL 2008 DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent ORDER AND NOW, this pow? day of Oxt4? 2009, an appeal from notice of license suspension having been filed, a hearing on the appeal is hereby scheduled for the _0710 . day of 00vGG6-1 ,?,/,,,, , 2009, at3'ad o'clock ?1/YM, in Courtroom of the Cumberland County Courthouse. By th J. cc: R. Mark Thomas, Esq. ,," Office of Chief Counsel, PennDOT Court Administrator - LPL FILED-4irFFIGE OF THE PRO-, PrINI NARY 2009 OCT -5 PM 3: 43 PE i`dStL?,J, S+(,? ROHAN DOOKHARAN, : IN THE COURT OF COMMON PLEAS OF Petitioner: CUMBERLAND COUNTY, PENNSYLVANIA VS NO. 5454 CIVIL 2008 COMMONWEALTH OF PENNSYLVANIA: DEPARTMENT OF TRANSPORTATION: BUREAU OF DRIVER LICENSING, . Respondent: ORDER OF COURT AND NOW, this 20th day of October, 2009, after hearing, the appeal is dismissed and the action of the Department in suspending Appellant's operating privileges for refusing to submit to chemical testing of his blood pursuant to Section 1547 of the Vehicle Code is affirmed. y - ---? By ,eie Court, EdwaYd E. Guido, J. Philip M. Bricknell, Esquire For the Respondent Mark Thomas, Esquire For the Petitioner mlc `-4 t'f?S' LCL l0 a.4?0? ZU9 OCT 26 At! B= 2 6 IDM&tA'L) "A"Y