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HomeMy WebLinkAbout04-1815 JOHN F. GARNER, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs, NO: OLl-.JPI$ C.i,->~C /~ LICENSE SUSPENSION APPEAL COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent TO THE HONORABLE JUDGES OF SAID COURT: AND NOW, thisQbth day of April, 2004, comes John F. Garner, by and through his attorney, David E. Hershey, Esquire and Wiley, Lenox, Colgan & Marzzacco, P,C., and respectfully files the following License Suspension Appeal, averring as follows: 1. Petitioner, John F. Garner is an adult licensed driver with a residence address of 42 Glenview Drive, Dillsburg, York County, Pennsylvania 17019, and a mailing address of P.O, Box 507, Dillsburg, York County, Pennsylvania 17019, 2. The Department of Transportation, Bureau of Driver Licensing has a mailing address of 1101 South Front Street, Harrisburg, PA 17104, 3. Petitioner received a notice of a proposed 1i3-month license suspension with a mail date of March 26, 2004 for an alleged refusall)f chemical testing pursuant to Section 1547 of the Vehicle Code, See Exhibit "A" attached hereto and incorporated herein by reference. 4, The suspension proposed by the Department is illegal, improper, and invalid for some or all of the following reasons: a. Petitioner was not given the implied consent warnings in compliance with Section 1547(b)(2). b. Said suspension is otherwise in violation of Section 1547 of the Vehicle Code and/or case law. c. Said suspension notice is incorrect and therefore violates Petitioner's due process rights under the Pennsylvania Constitution. 5. The incident giving rise to the Department's notice occurred in Cumberland County thereby conferring venue and jurisdicti,on with this court. WHEREFORE, Petitioner prays that Your Honorable Court enter an Order staying the proposed suspension until such time as the ca8e can be heard on its merits and further scheduling this matter for a hearing. By: Respectfully submitted, ~t ~~SQUIRE THE WILEY GROUP 130 W. Church Street Dillsburg, Pennsylvania 17019 1.0, #: 43092 JOHN F, GARNER, Petitioner IN THE COURT OF COMMON PLEAS CUMBERU:..ND COUNTY, PENNSYLVANIA vs, NO: 2004 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE; I, Shawna L. Varner, Legal Assistant in the Law Firm The Wiley Group, hereby certify that I , on this day, serving a copy of the foregoing document to the attorneys or parties of record in the manner indicated below which satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of s~e in the United States Mail, postage pre-paid at Harrisburg, Pennsylvania, on the U ./ day of April 2004. George Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel 1101 South Front Street Harrisburg, PA 17104-251€l JOHN F. GARNER, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO: 2004 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent LICENSE SUSPENSION APPEAL VERIFICATION I, David E. Hershey, on behalf of my client verify that the statements made in this document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C,S. 94904, relating to unsworn falsification to authorities. Respectfully submitted, ~/ DA'JItrf, HERSHEY, ESQUIRE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: MARCH 26. 2004 - - JOHN f GARNER 823 BRIAN DRIVE ENOLA PA 17025 WID. 040796194211846 001 PROCESSING DATE 03/19/2004 DRIVER LICENSE. 20847303 DATE Of BIRTH 11/10/1961 Dear MR. GARNER: This is an Official Notice of the suspension of your Driving Privilege as authorized by Section 1547B1II of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 03/06/2004: . Your driving privilege is SUSPENDED for a period of 18 MONTH(S) effective 04/30/2004 at 12:01 a.m. COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driLver's licenses, learner's permits, temporarY driver's l:icenses (camera cards) in your possession on or before 04/30/2004. You maY surrender these items before, 04/30/2004. 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 iden- tification (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 nota- rized 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: Pennsylvania Department of Transportation ~ EXHIBIT i A. - 040796194211846 Bu~eau of D~ive~ Licensing P.O. Box 68693 Ha~~isbu~9' PA 171ij6-8693 2. Upon ~eceipt, ~eview and acceptance of you~ Pennsylvania d~ive~'s licensees), lea~ne~ls pe~mit(s). and/o~ a swo~n nota~ized lette~. PennDOT will send you a ~eceipt con- fi~ming the date that c~edit began. If you do not ~e- ceive a ~eceipt f~om us within 3 weeks. please contact ou~ office. Othe~wise, you will not be given c~edit towa~d se~ving this suspension. PennDOT phone numbe~s a~e listed at the end of this lette~. 3. If you do not ~etu~n all cu~~ent d~ivl!~ license p~o- ducts, we must ~efe~ this matte~ to the Pennsylvania state police fo~ p~osecution unde~ SECTION 1571 (a) (4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a ~esto~ation fee to PennDOT to be ~esto~ed f~om a suspension/~evocation of you~ d~iving p~ivilege. To. pay you~ ~esto~ation fee, complete the following steps: 1. Retu~n the enclosed Application fo~ Rl!sto~ation. The amount due is listed on the application. 2. W~ite you~ d~ive~'s license numbe~ (listed on the fi~st page) on the check o~ moneY o~de~ t:o ensu~e p~ope~ c~edit. 3. Follow the payment and mailing inst~uctions on the back , of the application. APPEAL You have the ~ight to appeal this action to the Cou~t of Common Pleas (Civil Division) within 3D days of the mail date, MARCH 26, 2004, of this lette~. If you file an appeal in the county court, the Court will give )'OU a time~stamped certified COpy of the appeal. In o~de~ fo~ you~ appeal to be valid, you must send this time-stamped ce~tified coPY of the appeal by ce~tified mail to: Pennsylvania Depa~tment of T~ansportation Office of Chief Counsel Thi~d Floo~, Rive~f~ont Office Cente~ Ha~~isbu~g, PA 17104-2516 Remembe~, this is an OFFICIAL NOTICE OF SUSPENSION. You must ~etu~n all cu~~ent Pennsylvania d~ive~ license p~oducts to PennDOT by 04/30/2004. - 040796194211846 SincerelY, ~~,~ Rebecca L. Bickley, Director Bureau of Driver Licensing INFORMATION 7:00 a.m. to 9:00 D.m. IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676 OUT-OF-STATE 717-391-6190 TDD OUT-Of-STATE 717-391-6191 WEB SITE ADDRESS www.dmv.state.oa.us ~~~ ..... ~ 0 CI') -0 _) () ..0 _LI .i' ~ f ;> ~ . ~ ~ , lU ~::o ~.i ::z ~ :l> ~ ~ ~ -< JOHN F, GARNER, Petitioner IN THE COURT OF COMMON PLEAS CUMBEFtLAND COUNTY, PENNSYLVANIA 'LJ vs. NO: OJ..,(-/PIS {!,u.( <-y~ LICENSE SUSPENSION APPEAL COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent ORDER AND NOW, this '- U day of m aA;j- , 2004, upon consideration of the attached Appeal and the reasons supporting same, IT IS HEREBY ORDERED AND DECREED that a hE~aring on the merits of this case is hereby scheduled for theOl.~-tdday of n ,2004, at Id :,iOq, .m. o'clock in Courtroom No. ~ of the Cumberland County Court House at 1 Courthouse Square, Cumberland, Pennsylvania. () :;:g 0 c- c;::::. " Pursuant to Section 1550 of the Motor Vehicle Code, the Depart%\~t ~ ~-:.: .r -< Transportation is hereby Ordered to stay the proposed one-~'ear suspension until s!::l~.tima .:,'~ .'0. .:;- ~: . as this case can be decided on its merits. ':,_C"\ -4 :r nlp9 ~~ --:.....T "'" (5:D :..~ ZC) On, =-' :E -< BY THE COURT: ~~ ;~.} :::.;;- ~ 'f? .//J N J, JUDGE r1, :I" 111 JOHN GARNER, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 04-1815 CIVIL COMMONWEALTH OF PA, DEPARTMENT OF TRANS., BUREAU OF LICENSING, Appellee LICENSE SUSPENSION APPEAL IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE HESS, 1. ORDER AND NOW, this Z .. . day of August, 2004, following hearing and careful consideration of the briefs filed by the parties, the appeal filed in the above-referenced matter is SUSTAINED and the notice of the Commonwealth ofPennsylv,mia, Department of Transportation, Byreau of Driver Licensing, mailed March 26, 2004, suspending the petitioner's driver's license for a period of eighteen months is VACATED. BY THE COURT, vr5a'vid Hershey, Esquire For the Appellant ~hael E. McHale > Certified Legal Intern Beverly 1. Points, Esquire For PennDOT 4J O~- :Z~-Otj :rlm 'l\N'V^1I-SNN3d .. >.,{'\('/'\ (\..~",,' '""In'''''''' NJ" v...) ._' 'll ::1;:1r.:1I'" 1\.1 00 :\1 \O\~ 92 ~fI~ ~na! "'cN10NCk\lD'cld 3\-U. ;\0 38Ho\O-G31bl JOHN F. GARNER, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. CIVIL ACTION - LAW 04-1815 CIVIL COMMONWEALTH OF PA, DEPARTMENT OF TRANS., BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAL IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE HESS, J. OPINION AND ORDER On March 6, 2004, the appellant, John Garner, was stopped, while operating a motor vehicle in Camp Hill Borough, Cumberland County, by Officer John Kidman of the Camp Hill Borough Police Department. Having reason to believe that the motorist was under the influence of alcohol, Officer Kidman placed Mr. Garner under arrest and transported him to the Upper Allen Township booking center for processing and chemical testing. Officer Kidman requested that Mr. Garner submit to a breath test. In that connection, Officer Kidman furnished Mr. Garner with a form DL-26. This was a form which had been revised in light of the recently enacted law with respect to driving after imbibing alcohol. The form stated, iin pertinent part: 3. It is my duty as a police officer to inforrn you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least one year. In addition, if you refuse to submit to the chemical test, and you are convicted of, plead to, or adjudicated delinquent with respect to violating Section 3802(a) [driving after imbibing] of the Vehicle Code, because of your refusal, you will be subject to the more severe penalties set forth in Section 3804(c) of the Vehicle Code, which include a minimum of seventy-two hours in jail and a minimum fine of$I,OOO. 04-1825 CIVIL 4. It is my duty as a police officer to infimn you that. .. any request to speak with an attorney or anyone else after being provided these warnings ... will constitute a refusal, resulting in the suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code. Mr. Garner testified, credibly, that he studied the form and understood it. What the form plainly told him was that ifhe refused a breath test, he faced a minimwn of seventy-two hours in jail and that he could not ask to speak with anyone about the DL-26 lest that request be construed to be a refusal. It is important to note that the current driving under the influence (DUI) law differs markedly from the prior DUI law in that there are now criminal penalties imposed when a motorist refuses a chemical test. Specifically, Section 3804 of the current statute provides that, where an individual violates Section 3 802( a)(I) and has refused testing of blood or breath, the person must be sentenced: (1) For a first offense, to: (i) undergo imprisonment of not less than seventy-two consecutive hours nor more than six months; ... (2) for a second offense, to: (i) undergo imprisonment of not less than ninety days nor more than five years; ... (3) for a third or subsequent offense, to: (i) undergo imprisonment of not less than one year nor more than five years; ... See 75 Pa.C.S. 3804. No doubt because of this change in the DUI law, the legislature amended Section 1547 of the Vehicle Code to read in pertinent part as follows: (2) It shall be the duty of the police officf:r to inform the person that: 2 04-1825 CIVIL (i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and (ii) upon conviction, plea or adjudication of delinquency for violating section 3802(a), the person will be subject to the penalties provided in section 3804(c) (relating to penalties). We agree with petitioner's counsel when he observes that the General Assembly "no doubt identified the importance of the motorist being aware that under the new driving while imbibing law a refusal to submit to a chemical test now had criminal as well as civil consequences." Unfortunately, the current DL-26 form does not indicate, with any degree of accuracy, what those criminal consequences are. In this case, Mr. Garner had had a prior conviction for driving under the influence. Therefore, he faced a mandatory minimum term of not less than ninety days. Petitioner testified (and again we have no reason to disbelieve him) that had he known that he faced a minimum jail term of ninety days, he would have not refused the breath test. The pertinent part of the prior implied consent law, as it pertains to warnings by the police, simply provided that the person be informed that his opt:rating privileges would be suspended upon refusal to submit to chemical testing. Once th,: Commonwealth met its burden of proof with regard to this warning, it was the driver's responsibility to prove that he was not capable of making a knowing and conscious refusal to take the test. This, of course, is a factual determination made by the trial court. Com., Dept. of Transp. v O'Connell, 555 A.2d 873 (Pa. 1989). Under the recently enacted statute, the motorist must not only be informed that his license would be suspended upon refusal but that, in addition, that the person will be subject to the criminal penalties provided for in the statute. Nowhere on the DL-26 or in anything that 3 04-1825 CIVIL Officer Kidman said to Mr. Garner was there an indication that the minimum penalty was, in fact, ninety days imprisonment. It would be presumptuous of the Court of Common Pleas to set out, word for word, the text of an adequate DL-26 form. Common sense tells us, though, that a motorist should be warned concerning the potentially most serious consequence rather than the least serious consequence. Here, Mr. Garner was informed that he faced a minimum of seventy-two hours in jail. In fact, he faced a minimum of ninety days in jail. The information which was given to him was, plainly put, misleading. Moreover, Mr. Garner was discouraged from seeking any clarification by the admonition that if he did so, he would be deemed to have refused the test. The Department of Transportation, Bureau of Driver Lil;ensing, argues that the DL-26 will become too complicated if there is literal compliance with the DUI law. The Department suggests that any complexity in the form should be avoided because of the increased likelihood of confusion to an intoxicated motorist. This is akin to suggesting that accuracy in the form is unimportant because the form will not be understood anyway. ORDER AND NOW, this .t. "... day of August, 2004, following hearing and careful consideration of the briefs filed by the parties, the appeal filed in the above-referenced matter is SUSTAINED and the notice of the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, mailed March 26, 2004, suspending the petitioner's driver's license for a period of eighteen months is VACATED. BY THE COURT, ~1f 4 04-1825 CIVIL David Hershey, Esquire For the Appellant Michael E. McHale Certified Legal Intern Beverly J. Points, Esquire For PennDOT :rlm 5 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHYP. WILE ASSIST ANT COUNSEL-IN-CHARGE APPELLATE SECTION ATTORNEY I.D. NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 "'~t:\\'fD &. FILED Rt.;-''''WEl\lTl-t COURt COMMOH """ "\' 0"" p"""'.;" "hi"1 1-' ,I i.-.f""I~v. -' 12 JAN 2Un~ 13 44 JOHN F. GARNER, } IN THE COMMONWEALTH COURT Appellee } OF PENNSYLVANIA vs. } fi Dq- COMMONWEALTH OF PENNSYLVANIA, /6/5 ~ DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } 1960 C.D. 2004 ORDER . "fJf AND NOW, this 1 d day ofJanuary, 2005, A.D., upon consideration of the Application of the Commonwealth of Pennsylvania, Department ofTransportation, Bureau of Driver Licensing, for an extension oftime in which to file its brief and reproduced record in the above-entitled matter, said Application is hereby granted and the brief and reproduced record of the Department of Transportation shall be filed on or before February 11,2005. FOR THE COURT: ~J 12, 5~~~) Prothonotary CertIfied from the RecOrd JAN 1 3 Z005 end 0ldIr ElIIt I~'-,) :'~:~ ".:-.-'-, :-::i o i ~ '"."J w . , IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Garner v. No. 1960 C.D. 2004 SUBMITTED: March 24, 2005 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant ~ 6lf:- /~tfJ-; ~ BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: June 2, 2005 The Bureau of Driver Licensing (Bureau) appeals from the order of the Court of Common Pleas of Cumberland County (common pleas), which vacated the suspension of John F. Garner's driver's license. Common pleas concluded that Garner received an inadequate warning of the consequences prior to his refusal to take a breathalyzer test because the Bureau's revised DL-26 form does not satisfy the informational requirements in 75 Pa. C.S_ S 1547. The Bureau persuasively challenges this conclusion and we reverse. Since the amendments to the Motor Vehicle Code enacted in the Act of September 30, 2003, P.L. 120 (Act 2003-24) became effective on February 1, 2004, the warnings required prior to testing under Section 1547 include not only the previously required information that refusal will result in license suspension but also information that refusal will result in enhanced criminal penalties upon conviction. Specifically, Section 1547, in pertinent part, now states: (b) Suspension for refusal.- (2) It shall be the duty of the police officer to inform the person that: (i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and (ii) upon conviction, plea or adjudication of delinquency for violating section 3802(a), the person will be subject to penalties provided in section 3804(c) (relating to penalties). 75 Pa. C.S. S l547(b)(2). On March 6, 2004, local police stopped Garner, who was driving a dump truck in an apparently reckless manner. Reasonably believing that Garner was intoxicated, police arrested him and transported him to a booking center, where an officer requested that he submit to a breathalyzer test. Prior to seeking Garner's submission to testing, police informed Garner of the consequences of refusal by both reading aloud and handing him a copy of the Bureau's DL-26 form, as revised since the recent amendments to the Motor Vehicle Code. The form states, in pertinent part: 3. [I]f you refuse to submit to the chemical test, your operating privileges will be suspended for at least one year. In addition, if you refuse to submit to the chemical test, and you are convicted of, plead to, or adjudicated delinquent with respect to violating Section 3802(a) [driving after imbibing] of the Vehicle Code, because of your refusal, you will be subject to the more severe 2 penalties set forth in Section 3804(c) of the Vehicle Code, which include a minimum of seventy-two hours in jail and a minimum fine of$l,OOO. 4. [A]ny request to speak to an attorney or anyone else after being provided these warnings . . . will constitute a refusal, resulting in suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code. Gamer testified that he read the form and understood it. Garner v. Dep't of Transp., (No. 04-1815 Civil, filed August 26, 2004), op. at 2. R.R. at 73a. Nevertheless, Garner refused to submit to testing. Police reported his refusal to the Bureau; and, the Bureau notified Gamer that his license was being suspended for eighteen months, as now directed for recidivist offenders. Section 1547(b)(1) directs that a refusal shall generally result in a twelve-month suspension but an eighteen-month suspension applies if: (A) The person's operating privileges have previously been suspended under this subsection. (B) The person has, prior to the refusal under this paragraph, been sentenced for: (I) an offense under section 3802; (II) an offense under former section 3731; (III) an offense equivalent to an offense under subclause (I) or (II); or (IV) a combination of the offenses set forth in this clause. 3 75 Pa. C.S. ~ 1547(b)(1). In 2001, Garner had undergone a six-month suspension following placement in A.R.D.1 for a Dill in violation of former Section 3731. Following notification of the suspension, Garner appealed to common pleas, contending that his refusal was not knowing and voluntary because he "was not specifically advised as to the potential penalties applicable to him for refusing chemical testing." Garner's trial brief at I. RR at lOa. Common pleas agreed, concluding that the warning stated on the Bureau's DL-26 form was flawed in failing to notify Gamer that, as a second time offender, he faced a minimum criminal penalty that included at least ninety days in jail under 75 Pa. C.S. ~ 3804(c).2 Based upon this conclusion, common pleas vacated Garner's license suspension. Thereafter, the Bureau filed the present appeal. I Accelerated Rehabilitative Disposition, a program governed by Chapter 3 of the Rules of Criminal Procedure, was available for the disposition of DUI charges under Section 3731 (repealed by the Act of September 30, 2003, P.L. 120; the replacement provision is now found at 75 Pa. C.S. 9 3802). 2 Section 3804(c) provides: An individual who violates section 3802(a)(I) and refused testing of blood or breath or an individual who violates section 3802(c) or (d) shall be sentenced as follows: (I) For a first offense, to: (i) undergo imprisonment of not less than 72 consecutive hours nor more than six months; (2) For a second offense, to: (i) undergo imprisonment of not less than 90 days nor more than five years; (3) For a third offense, to: (i) undergo imprisonment of not less than one year nor more than five years; 75 Pa. C.S. 93804(c). 4 Of the four elements that the Bureau must prove in order to sustain a driver's license suspension pursuant to Section 1547(b)(I), i.e., (I) arrest for Dill, (2) request to submit to testing, (3) refusal, (4) delivery of the required warnings, see Whiteford v. Department of Transportation, Bureau of Driver Licensing, 782 A,2d 1127, 1131 (Pa. Cmwlth. 200 I), the establishment of the first three is undisputed. In addition, the parties do not dispute that Garner received the warnings stated in the Bureau's latest version of the DL-26 form. This case concerns only whether those warnings satisfy the statutory requirements. The warning delivered to Garner fully complies with the statutory requirements. The statute simply does not require any specific explanation as to the length of the civil suspension and it does not require an explanation of each criminal penalty set forth in Section 3804(c). The statute requires only that police provide notice that refusal will result in license suspension and, that if the licensee is convicted of driving under the influence, refusal will result in additional penalties. Garner received this information. We believe common pleas erred in imposing an additional requirement that the information regarding potential suspensions and criminal penalties be specifically tailored to the circumstances of individual licensees. Aside from the fact that the Act does not require such specificity, it would be unrealistic to assume that at the time warnings must be given, arresting officers have sufficient accurate information to know what potential penalties the arrestee faces. As this court recently held: It is not the duty of the police to explain the various sanctions available under a given law to an arrestee to give that individual an opportunity to decide whether it is worth it to violate that law. It is sufficient for the police to inform a motorist that he or she will be in violation of 5 the law and will be penalized for that violation if he or she should fail to accede to the officer's request for a chemical test. The verbiage on form DL-26 informs a motorist that he or she will be in violation of the law and will be penalized for that violation ifhe or she should fail to accede to the officer's request for a chemical test; that is sufficient information upon which to base a decision as to whether or not to submit to chemical testing. Weaver v. Dep '( of Transp., Bureau of Driver Licensing, _ A.2d _, _ (Pa. Cmwlth. 2005) (No. 2170 CD 2004, filed March 11, 2005) 2005 WL 1017888, at *2. In an attempt to further support common pleas' ruling, Garner asserts the alternate theory that paragraphs three and four of the warning work together to generate confusion. We disagree. These paragraphs contain no contradictory information regarding the enhanced criminal penalties authorized under Section 3804(c). Paragraph three addresses the consequences of refusing and includes specific information regarding the minimum criminal penalty enhancement. Paragraph four addresses the well-settled principle that the Bureau's authority to suspend a driver's license as a consequence of refusal to undergo testing does not trigger any right to counsel and restates generally that refusal will result in enhanced criminal sanctions. The specific statement in paragraph three is entirely consistent with the general statement in paragraph four. As we have previously recognized, licensees often fail to readily appreciate the difference between the civil suspension for failure to submit to testing as required under the Implied Consent Law in Section 1547(a)3 and the 3 "Driving in Pennsylvania is a civil privilege conferred on state residents who meet the necessary qualifications. 75 Pa. C.S. S 1501. Under the terms of the Implied Consent Law, one of the necessary qualifications to continuing to hold that privilege is that a motorist must submit to (Footnote continued on next page...) 6 penalties imposed upon conviction for violating the prohibition in Section 3802 against driving under the influence. See Dep't of Transp., Bureau of Driver Licensing v. Scott, 546 Pa. 241, 250, 684 A.2d 539, 543-44 (1996). However, the delivery of the warning in paragraph four of the DL-26 form adequately and accurately informs that a request for counsel will be treated as a refusal for purposes of the civil suspension under the Implied Consent Law. Accordingly, we reverse the order of the court of common pleas and reinstate the suspension of Gamer' s driving privileges. -'-'6. Le?rl wi- BONNIE BRIGANCE LEADBETTER, Judge (continued... ) chemical sobriety testing when requested to do so . . . ." Dep 'f of Transp., Bureau of Driver Licensing v. Scatf, 546 Pa. 241, 250, 684 A.2d 539, 544 (1996). 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Garner v. No. 1960 C.D. 2004 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant t16l(r (~!~ (") ,..., ~ = c = ~ <.M -r.7l'D <- :r {Tlnl c:: n1 :r; Z.:.' , Z -v!!3 6jc I J,,:':_' 0"> :JJ t -< ~~:~C, r-~ ~r:!, "'" :!'" ~r >5-'- ::r: '::::;-0 _.-C,' - "'-~-tTt >c': - 9 5! .. ;p- .J:) co --< ORDER AND NOW, this 2nd day of June, 2005, the order of the Court of Common Pleas of Cumberland County in the above captioned matter is hereby REVERSED and the SUSPENSION imposed by the Department of Transportation is hereby REINSTATED. ---6 .k~'i~ BONNIE BRIGANCE LEADBETTER, Judge CerIIlIed from the RICDfd JUN - 2 2005 Ind 0rdIr ExIt IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Gamer v. No. 1960 C.D. 2004 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant M 6Lf- If I'; ~ ORDER PER CURIAM AND NOW this 18th day of July, 2005, IT IS HEREBY ORDERED that the above captioned opinion filed June 2,2005, sha:ll be designated OPINION rather than MEMORANDUM OPINION and it shall be reported. ~) ..., c:::l 0 c;::> --n eJ' ,- --; c:: ::r: r~- filjTI -,,11l U) :;:JcrJ C),-, ."f:,.' :r::n r.' I', <~! ?~~ -- i"n')nl .. ;--'-l .1:" .::- :n ...- .< IN THE COMMONWEALTH COURT OF' PENNSYLVANIA John Garner v. No. 1960 C.D. 2004 SUBMITTED: March 24, 2005 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge OPINION BY JUDGE LEADBETTER FILED: June 2, 2005 The Bureau of Driver Licensing (Bureau) appeals from the order of the Court of Common Pleas of Cumberland County (common pleas), which vacated the suspension of John F. Garner's driver's license. Common pleas concluded that Garner received an inadequate warning of the consequences prior to his refusal to take a breathalyzer test because the Burl~au's revised DL-26 form does not satisfy the informational requirements in 75 Pa. C.S. S 1547. The Bureau persuasively challenges this conclusion and we reverse. Since the amendments to the Motor Vehicle Code enacted in the Act of September 30, 2003, P.L. 120 (Act 2003-24) becarm~ effective on February 1, 2004, the warnings required prior to testing under Section 1547 include not only the previously required information that refusal will result in license suspension but also information that refusal will result in enhanced criminal penalties upon conviction. Specifically, Section 1547, in pertinent part, now states: (b) Suspension for refusal.- (2) It shall be the duty of the police officer to inform the person that: (i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and (ii) upon conviction, plea or adjudication of delinquency for violating section 3802(a), the person will be subject to penalties provided in section 3804(c) (relating to penalties). 75 Pa. C.S. 9 l547(b)(2). On March 6, 2004, local police stopped Garner, who was driving a dump truck in an apparently reckless manner. Reasonably believing that Garner was intoxicated, police arrested him and transported him to a booking center, where an officer requested that he submit to a breathalyzer test. Prior to seeking Garner's submission to testing, police informed Garner of the consequences of refusal by both reading aloud and handing him a copy of the Bureau's DL-26 form, as revised since the recent amendments to the Motor Vehicle Code. The form states, in pertinent part: 3. [I]f you refuse to submit to the chemical test, your operating privileges will be suspended for at least one year. In addition, if you refuse to submit to the chemical test, and you are convicted of, plead to, or adjudicated delinquent with respect to violating Section 3802(a) [driving after imbibing] of the Vehicle Code, because of your refusal, you will be subject to the more severe 2 penalties set forth in Section 3804(c) of the Vehicle Code, which include a minimum of seventy-two hours in jail and a minimum fine of$l,OOO. 4. [A]ny request to speak to an attorney or anyone else after being provided these warnings . . . will constitute a refusal, resulting in suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code. Garner testified that he read the form and understood it. Garner v. Dep 't of Transp., (No. 04-1815 Civil, filed August 26, 2004), op. at 2. R.R. at 73a. Nevertheless, Garner refused to submit to testing. Police reported his refusal to the Bureau; and, the Bureau notified Garner that his license was being suspended for eighteen months, as now directed for recidivist offenders. Section l547(b)(1) directs that a refusal shall generally result in a twelve-month suspension but an eighteen-month suspension applies if: (A) The person's operating privileges have previously been suspended under this subsection. (B) The person has, prior to the refusal under this paragraph, been sentenced for: (I) an offense under section 3802; (II) an offense under former section 3731; (III) an offense equivalent to an offense under subclause (I) or (II); or (IV) a combination of the offenses Sl~t forth in this clause. 3 75 Pa. C.S. S 1547(b)(1). In 2001, Garner had undergone a six-month suspension following placement in A.R.D.1 for a Dill in violation of former Section 3731. Following notification of the suspension, Garner appealed to common pleas, contending that his refusal was not knowing and voluntary because he "was not specifically advised as to the potential penalties applicable to him for refusing chemical testing." Garner's trial brief at 1. R.R. at lOa. Common pleas agreed, concluding that the warning stated on the Bureau's DL-26 form was flawed in failing to notify Garner that, as a second time offender, he faced a minimum criminal penalty that included at least ninety days in jail under 75 Pa. C.S. S 3804(c).2 Based upon this conclusion, common pleas vacated Garner's license suspension. Thereafter, the Bureau filed the present appeal. 1 Accelerated Rehabilitative Disposition, a program governed by Chapter 3 of the Rules of Criminal Procedure, was available for the disposition of DUI charges under Section 3731 (repealed by the Act of September 30, 2003, P.L. 120; the replacement provision is now found at 75 Pa. C.S. S 3802). 2 Section 3804(c) provides: An individual who violates section 3802(a)(1) and refused testing of blood or breath or an individual who violates section 3802(c) or (d) shall be sentenced as follows: (1) For a first offense, to: (i) undergo imprisonment of not less than 72 consecutive hours nor more than six months; (2) For a second offense, to: (i) undergo irnprisonment of not less than 90 days nor more than five years; (3) For a third offense, to: (i) undergo imprisonment of not less than one year nor more than five years; 75 Pa. C.S. S 3804(c). 4 Of the four elements that the Bureau must prove in order to sustain a driver's license suspension pursuant to Section 1547(b)(1), i.e., (1) arrest for Dill, (2) request to submit to testing, (3) refusal, (4) delivery of the required warnings, see Whiteford v. Department of Transportation, Bureau of Driver Licensing, 782 A_2d 1127, 1131 (pa. Cmwlth. 2001), the establishment of the first three is undisputed. In addition, the parties do not dispute that Garner received the warnings stated in the Bureau's latest version of the DL-26 form. This case concerns only whether those warnings satisfy the statutory requirements. The warning delivered to Garner fully complies with the statutory requirements. The statute simply does not require any specific explanation as to the length of the civil suspension and it does not require an explanation of each criminal penalty set forth in Section 3804(c). The statute requires only that police provide notice that refusal will result in license suspension and, that if the licensee is convicted of driving under the influence, refusal will result in additional penalties. Gamer received this information. We believe common pleas erred in imposing an additional requirement that the information regarding potential suspensions and criminal penalties be specifically tailored to the circumstances of individual licensees. Aside from the fact that the Act does not require such specificity, it would be unrealistic to assume that at the time warnings must be given, arresting officers have sufficient accurate information to know what potential penalties the arrestee faces. As this court recently held: It is not the duty of the police to explain the various sanctions available under a given law to an arrestee to give that individual an opportunity to decidf~ whether it is worth it to violate that law. It is sufficient for the police to inform a motorist that he or she will be in violation of 5 the law and will be penalized for that violation if he or she should fail to accede to the officer's request for a chemical test. The verbiage on form DL-26 informs a motorist that he or she will be in violation of the law and will be penalized for that violation if he or she should fail to accede to the officer's request for a chemical test; that is sufficient information upon which to base a decision as to whether or not to submit to chemical testing. Weaver v. Dep't of Transp., Bureau of Driver Licensing, _ A.2d _, _ (Pa. Cmwlth. 2005) (No. 2170 CD 2004, filed March 11,2005) 2005 WL 1017888, at *2. In an attempt to further support common pleas' ruling, Garner asserts the alternate theory that paragraphs three and four of the warning work together to generate confusion. We disagree. These paragraphs contain no contradictory information regarding the enhanced criminal penalties authorized under Section 3804(c). Paragraph three addresses the consequences of refusing and includes specific information regarding the minimum criminal penalty enhancement. Paragraph four addresses the well-settled principle that the Bureau's authority to suspend a driver's license as a consequence of refusal to undergo testing does not trigger any right to counsel and restates generally that refusal will result in enhanced criminal sanctions. The specific statement in paragraph three is entirely consistent with the general statement in paragraph four. As we have previously recognized, licensees often fail to readily appreciate the difference between the civil suspension for failure to submit to testing as required under the Implied Consent Law in Section 1547(a)3 and the 3 "Driving in Pennsylvania is a civil privilege conferred on state residents who meet the necessary qualifications. 75 Pa. C.S. S 1501. Under the terms of the Implied Consent Law, one of the necessary qualifications to continuing to hold that privilege is that a motorist must submit to (Footnote continued on next page...) 6 penalties imposed upon conviction for violating the prohibition in Section 3802 against driving under the influence. See Dep't of Transp., Bureau of Driver Licensing v. Scott, 546 Pa. 241, 250, 684 A.2d 539, 543-44 (1996). However, the delivery of the warning in paragraph four of the DL-26 form adequately and accurately informs that a request for counsel will be treated as a refusal for purposes of the civil suspension under the Implied Consent Law. Accordingly, we reverse the order of the 1:':000 of common pleas and reinstate the suspension of Garner's driving privileges. -6 . Le7c{ b.iL- BONNIE BRIGANCE LEADBETTER, Judge (continued... ) chemical sobriety testing when requested to do so . . . ." Dep't oj Transp,, Bureau oj Driver Licensing v. Scott, 546 Pa. 241, 250, 684 A.2d 539, 544 (1996). 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Garner v. No. 1960 C.D. 2004 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant ORDER AND NOW, this 2nd day of June, 2005, the order of the Court of Common Pleas of Cumberland County in the above captioned matter is hereby REVERSED and the SUSPENSION imposed by the Department of Transportation is hereby REINSTATED. -ts.G?~iG BONNIE BRIGANCE LEADBETTER, Judge CertIlIId ffOm III AilOlIId JUL 1 8 Z005 ..-"