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PENNSYLVANIA
KIMBERLY I. GROGG : IN THE COURT OF COMMON PLEAS
Petitioner :CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. S51 d
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION LICENSE SUSPENSION APPEAL
BUREAU OF DRIVER LICENSING,
Respondent
LICENSE SUSPENSION APPEAL
AND NOW, comes Kimberly I. Grogg, hereinafter Petitioner, by and through her attorneys,
Mancke, Wagner & Spreha, who respectfully represent:
1. Your Petitioner, Kimberly I. Grogg, is an adult individual residing at 410 Mercury Drive,
Mechanicsburg, Cumberland County, Pennsylvania.
2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing
has a mailing address of Riverfront Office Center, Third Floor, 1101 S. Front Street, Harrisburg,
Dauphin County, Pennsylvania 17104-2516.
3. On or about August 7, 2012, your Petitioner received an Official Notice of Suspension
from the Department of Transportation indicating that her privilege to drive a motor vehicle was
being suspended for a period of one year as a result of an alleged chemical test refusal pursuant
to 75 Pa.G.S.A. §1547. See Exhibit A.
4. Your petitioner believes such suspension is illegal, unjust and improper for reasons
which include, but are not limited to the following:
a. There was no reasonable grounds to believe the petitioner
was operating a motor vehicle under the influence of alcohol;
b. There was no valid request to take a chemical test;
C. There was no valid refusal to take a chemical test;
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly I. Grogg, :
Appellant :
• No. 24 C.D. 2013
v. •
Commonwealth of Pennsylvania, •
Department of Transportation, •
Bureau of Driver Licensing : --c -..., -,
ORDER
AND NOW, this 16th day of October, 2013, it is ORDERED that the
above-captioned opinion filed July 31, 2013, shall be designated OPINION rather
than MEMORANDUM OPINION, and it shall be reported.
de
P A PA A A. McCULLO dge
Certified from the Record
OCT 1 6 2013
and Order Exit
S
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly I. Grogg,
•
Appellant
: No. 24 C.D. 2013
v.
S 5
: Submitted: June 28, 2013
Commonwealth of Pennsylvania, : ,
Department of Transportation, •
Bureau of Driver Licensing
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge ' -
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY
JUDGE McCULLOUGH FILED: July 31, 2013
Kimberly I. Grogg (Licensee) appeals from the December 13, 2012
order of the Court of Common Pleas of Cumberland County (trial court) denying her
statutory appeal from a one-year suspension of her driving privileges imposed by the
Department of Transportation (DOT) pursuant to section 1547(b)(1) of the Vehicle
Code.' We affirm.
On July 14, 2012, Officer Nathaniel Funk of the Hampden Township
Police Department responded to a hit-and-run crash in the parking lot of a local bar
while on uniformed patrol duty. (Reproduced Record (R.R.) at 16a.) Before Officer
Funk reached the scene of the collision, the Cumberland County Dispatch Center
I Section 1547(b)(1)(i) provides that if any person placed under arrest for driving while
under the influence is requested to submit to a chemical test and refuses to do so, DOT shall
suspend the person's operating privilege for one year. 75 Pa.C.S. §1547(b)(1)(i).
r
advised the Officer that a witness had made contact with Licensee and that he
suspected Licensee was under the influence of alcohol. (R.R. at 16a-17a.) When
Officer Funk arrived at the parking lot, the witness who related the facts of the hit-
and-run reiterated his suspicion that Licensee was under the influence of alcohol.
(R.R. at 17a-18a.)
Officer Funk made contact with the Licensee while she was still in her
vehicle and observed that she was chewing on mints, had red glassy eyes, and was
unresponsive to his questions. Id. Officer Funk then escorted Licensee to a nearby
parking lot to conduct field sobriety testing. (R.R. at 18a-19a.) Before conducting
the field sobriety tests, Licensee admitted that she had consumed one drink. (R.R. at
21a.) Officer Funk conducted field sobriety testing and observed several indicators
of intoxication. (R.R. 18a-23a, 55a.) After considering Licensee's performance in
the field sobriety test, the circumstances of the hit-and-run, and Licensee's admission,
Officer Funk concluded that Licensee was unable to operate her vehicle and placed
Licensee under arrest for driving while under the influence of alcohol or a controlled
substance (DUI). (R.R. at 23a, 55a.)
Officer Funk transported Licensee to Cumberland County Prison and
placed her in the custody of the corrections officers for processing and chemical
testing. (R.R. at 24a.) Officer Funk read verbatim the chemical test warnings to
Licensee from the DL-26 Forme and signed the affidavit on the bottom of the form
2 Form DL-26 contains the chemical testing warnings required by section 1547 of the
Vehicle Code, 75 Pa.C.S. §1547, pursuant to our Supreme Court's decision in Department of
Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). These
warnings inform a motorist that he or she is under arrest; that he or she is being requested to submit
to a chemical test; that he or she will lose his or her operating privileges and potentially face stricter
criminal penalties if the request is refused; and that there is no right to remain silent or speak to an
attorney.
(Footnote continued on next page...)
2
ti
indicating that he had read the warnings. (R.R. at 25a-26a, 56a.) Officer Funk also
informed Licensee that if she refused to consent to chemical testing she could lose her
license for twelve to eighteen months. (R.R. at 56a.) Officer Funk then offered to let
Licensee read the warnings herself from the DL-26 Form, but, in reply, Licensee
asked to go to the ladies' room. (R.R. at 56a.) Officer Funk allowed Licensee to go
to the bathroom, where she was away for approximately five minutes. (R.R. at 56a.)
When Licensee returned from the bathroom, Officer Funk re-read the warnings from
the DL-26 Form, during which Licensee began crying. (R.R. at 27a, 56a.) Officer
Funk next asked Licensee to take the chemical test five different times, but she did
not respond to his requests. (R.R. at 56a.) After waiting two minutes for Licensee to
respond, Officer Funk deemed Licensee's conduct a refusal to submit to chemical
testing. (R.R. at 27a, 55a.) When Officer Funk left the booking room, Licensee
carried on a conversation with the booking officer, where she asked questions and
indicated that she wanted an attorney. (R.R. at 56a.)
After receiving notice that Licensee refused to submit to chemical
testing, DOT mailed her a notice on August 7, 2012, advising her that her driving
privileges were being suspended for a period of tweeve months, effective September
11, 2012, pursuant to section 1547(b)(1)(i) of the Vehicle Code. (R.R. at 6a.)
Licensee filed a timely appeal, and on December 12, 2012, the trial court held a de
novo hearing. (R.R. at 10a.)
At the hearing, Officer Funk testified that the hit-and-run collision
occurred at approximately 1:34 a.m. (R.R. at 26a.) He then testified that he and
Licensee arrived at Cumberland County Prison at 2:30 a.m., and he read Licensee the
(continued...)
3
DL-26 Form at approximately 2:32 a.m. (R.R. at 27a.) Officer Funk testified that at
2:41 a.m., he determined that Licensee had refused to submit to chemical testing.
(R.R. at 27a.) Officer Funk stated that although Licensee did not verbally refuse to
take the test, he considered her conduct in failing to respond to his requests to take
the test as evidencing a refusal. (R.R. at 27a-28a.)
DOT admitted a video recording of the booking into evidence. (R.R. at
24a-25a.) The recording showed Officer Funk reading the warnings from the DL-26
Form, after which Licensee was given a five-minute bathroom break. (R.R. at 25a,
56a.) When Licensee returned, Officer Funk re-read the warnings, Licensee began to
cry, and Officer Funk requested that Licensee submit to testing five times. (R.R. at
56a.) After approximately two minutes of waiting, Officer Funk determined that her
lack of a response constituted a refusal. (R.R. at 32a-34a, 56a.)
By order dated December 13, 2012, the trial court dismissed Licensee's
appeal. The trial court determined that: (1) Officer Funk had reasonable grounds to
believe that Licensee was operating or physically controlling a vehicle while under
the influence of alcohol; (2) Officer Funk requested Licensee to submit to a chemical
test on multiple occasions; (3) Licensee refused to do so by not responding to the
requests; and (4) Licensee was warned that she may lose her license if she did not
submit to the tests. (R.R. at 48a, 58a-59a.)
On appeal to this Court,3 Licensee argues that the trial court erred in
concluding that she refused to submit to chemical testing. Relying on Bomba v.
3 Our scope of review is limited to determining whether the findings of fact are supported by
competent evidence or whether the trial court committed an error of law or an abuse of discretion in
reaching its decision. Pasecki v. Department of Transportation, Bureau of Driver Licensing, 6 A.3d
1067, 1070 (Pa. Cmwlth. 2010).
4
Department of Transportation, Bureau of Driver Licensing, 28 A.3d 946 (Pa.
Cmwlth. 2011), Licensee argues that her actions do not demonstrate an attempt to
deliberately delay or undermine the testing process because the Commonwealth still
had close to an hour to obtain a blood sample for purposes of section 3802 of the
Vehicle Code.4 Licensee claims that she became emotional when faced with the
gravity of the situation, asserts that when she returned from the bathroom she was
only provided with two minutes to submit to the chemical testing, and argues that
Officer Funk should have given her more time before recording the refusal.
In order to sustain a suspension of operating privileges under section
1547 of the Vehicle Code, DOT must establish that: (1) the licensee was arrested for
drunken driving by a police officer who had reasonable grounds to believe that the
motorist was operating a motor vehicle while under the influence of alcohol; (2) the
licensee was requested to submit to a chemical test; (3) the licensee refused to submit;
and (4) the licensee was warned that refusal would result in a license suspension.
Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d
636, 640 (Pa. Cmwlth. 2006). The only issue in this appeal is whether Licensee
refused to submit to chemical testing.
In proving whether a licensee refused to submit to chemical testing,
DOT has the burden of showing that the licensee was offered a meaningful
opportunity to submit to chemical testing. Petrocsko v. Department of
Transportation, Bureau of Driver Licensing, 745 A.2d 714, 716 (Pa. Cmwlth. 2000).
a Sections 3802 of the Vehicle Code provides that an individual may not drive, operate, or
be in physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol
such that the alcohol concentration in the individual's blood or breath is over the respective
statutory threshold percentage within two hours after the individual has driven, operated, or been in
actual physical control of the movement of the vehicle. 75 Pa.C.S. §3802.
5
If DOT satisfies its burden, the licensee must establish that the refusal was not
knowing or conscious or that the licensee was physically unable to take the test.
Broadbelt, 903 A.2d at 640.
Whether a motorist refused to submit to a chemical test is a question of
law that depends on the factual determinations of the trial court. Hudson v.
Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa.
Cmwlth. 2003); Department of Transportation, Bureau of Traffic Safety v. Mumma,
468 A.2d 891, 892 (Pa. Cmwlth. 1983). It is well-settled that "anything less than an
unqualified, unequivocal assent" to submit to testing constitutes a refusal to do so.
Department of Transportation v. Renwick, 543 Pa. 122, 131, 669 A.2d 934, 938
(1996); Lanthier v. Department of Transportation, Bureau of Driver Licensing, 22
A.3d 346, 348 (Pa. Cmwlth. 2011); Miele v. Commonwealth, 461 A.2d 359, 360 (Pa.
Cmwlth. 1983). Furthermore, police officers are not required to spend time either
cajoling an arrestee or waiting for her to change her mind. Department of
Transportation, Bureau of Traffic Safety v. Ferrara, 493 A.2d 154,157 (Pa. Cmwlth.
1985).
It is also well-settled that silence can constitute a refusal. Renwick, 543
Pa. at 131, 669 A.2d at 939 (holding that by closing her eyes, turning her head, and
ignoring the requests, licensee refused to submit to chemical testing); Broadbelt, 903
A.2d at 641. In Broadbelt, the licensee was given approximately twelve minutes to
consider the warnings by the officer and was repeatedly asked to submit to blood
testing. This Court held that the licensee was given a meaningful opportunity to ask
questions and read the warnings and that his silence constituted a refusal. We
reasoned that police officers have no duty to ensure that the licensee understands the
6
warnings and reaffirmed that anything less than an unqualified, unequivocal assent
constitutes a refusal. Id.
Here, Licensee was given a meaningful opportunity to understand the
warnings in the DL-26 Form and consent to chemical testing. Officer Funk read the
warnings in full to Licensee before she went to the bathroom and then again when she
returned. Officer Funk provided Licensee with an opportunity to read the warnings
and to ask questions, and Licensee never indicated that she did not understand the
warnings. Although Licensee was given only two minutes after she returned from the
bathroom to assent, approximately nine minutes elapsed from when Officer Funk first
read the warnings until his fifth request that Licensee submit to testing. We reaffirm
that police officers are not required to spend time either cajoling an an-estee or
waiting for her to change her mind. Ferrara, 493 A.2d at 156-57. Similar to the
situation in Broadbelt, Licensee was provided with ample opportunities to consent to
chemical testing, but she instead decided to ignore the requests and never made any
indication that she assented to take the test.
Licensee's reliance on Bomba is misplaced. In Bomba, the licensee was
arrested for DUI, and after being administered the warnings on the DL-26 Form, the
licensee consented to a breath test. A booking officer administered a breath test, but
the licensee did not provide a sufficient breath sample. The booking officer informed
the licensee that the failed breath test constituted a refusal, and the officer refused to
offer a second test. After the licensee was informed that she was deemed to have
refused the test, the licensee pleaded with the booking officer for another chance to
take the test. The licensee testified that she was very upset from her arrest and that it
affected her ability to provide a breath sample on the first test. The trial court
credited the licensee's testimony and found that the licensee did not refuse the test
7
because she made a good faith but unsuccessful attempt to provide a breath sample
and immediately requested to take the test again. On appeal, this Court affirmed. We
concluded that the facts as found by the trial court established that the licensee did
not refuse the test and that her conduct did not delay or evidence a deliberate attempt
to undermine the testing process. Id. at 949.
The facts of Bomba are readily distinguishable from the facts of the
present case. Unlike the licensee in Bomba, Licensee here did not manifest any kind
of assent or willingness to take the test at any point during the booking or after any of
Officer Funk's five requests to submit to chemical testing. Licensee argues that, like
the licensee in Bomba, she did not deliberately delay or undermine the testing process
and therefore did not refuse the chemical test. However, in this case, the trial court
specifically found that Licensee's conduct demonstrated a refusal and that her failure
to submit to testing was an attempt to delay the testing process. The trial court's
findings in this regard are supported by the record and render Bomba factually
inapposite. _ ..
Citing Bomba, Licensee also argues that because she was still within the
two hour limit for obtaining a chemical sample as required under section 3802 of the
Vehicle Code, Officer Funk should have given her more time to regain her
composure and consent. Licensee suggests that we extend a portion of our reasoning
in Bomba to the present facts and adopt a per se rule that gives arrestees more time to
consent so long as they are within the statutory two-hour limit to perform the
chemical testing. We decline Licensee's invitation to do so. Our decision in Bomba
never adopted such a rule, and this Court has never suggested that an arrestee must be
provided with a specific time span in which to consent to testing. Instead, this Court
has routinely held that a licensee must only be afforded "a meaningful opportunity"
8
to assent to testing. Petrocsko, 745 A.2d at 717. As explained above, the trial court
found that Licensee had a meaningful opportunity to assent to testing, never
affirmatively consented to testing, and was purposefully unresponsive to Officer
Funk's requests. Accordingly, we conclude that Bomba is limited by its unique facts
and is inapplicable here.
For the above-stated reasons, we hold that the trial court did not err in
determining the Licensee's silence constituted a refusal under section 1547 of the
Vehicle Code. Licensee does not attempt to negate her refusal by arguing that her
refusal was not knowing or conscious or that she was physically unable to take the
test. Finally, Licensee does not dispute that DOT fulfilled its burden of proof with
respect to the other elements of section 1547.
Accordingly, we affirm.
PA" a - A A. McCULL• _H dge
9
i
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly I. Grogg, •
Appellant •
•
No. 24 C.D. 2013
v. ••
Commonwealth of Pennsylvania,
•
,..
Department of Transportation, •
Bureau of Driver Licensing • -r'-'
cnr-
r--- `a
ORDER _`
AND NOW, this 31St day of July, 2013, the December 13, 2012 order
of the Court of Common Pleas of Cumberland County is affirmed.
P • ' CIA A. McCULLO /udge
d. There was no valid refusal and/or valid or timely request to
take a chemical test;
e. The petitioner was never given an adequate opportunity to
submit to a chemical testing.
WHEREFORE, your petitioner prays your Honorable Court to hold a hearing to determine the
validity of the suspension outlined in Exhibit A.
Respectfully submitted,
MANCKE, WAGNE-RA SPREHA
Edward F. refs , r., Esq.
Attorney l "o. 661
Attorney for Defendant
2233 North Front Street
Harrisburg, PA 17110
717-234-7051
Dated: q- 0 Id,
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: AUGUST 07, 2012
KIMBERLY I GROGG WID * 122136746687354 001
410 MERCURY DR PROCESSING DATE 07/31/2012
DRIVER LICENSE # 23570610
MECHANICSBURG PA 17050 DATE OF BIRTH 08/10/1974
Dear MS. GROGG:
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 07/14/2012:
¦ Your driving privilege is SUSPENDED for a period of 1
YEAR(S) effective 09/11/2012 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 09/11/2012. You may
surrender these items before, 09/11/2012, 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 $13.50. 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:
122136746687354
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.
Please note: Paying the restoration fee DOES NOT satisfy
the requirement to acknowledge your suspension/revocation.
If you have not acknowledged your suspension/revocation,
please follow the instructions listed under "Complying with
this Suspension/Revocation".
122136746687354
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 07, 2012, 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 relturn all current Pennsylvania driver license products
to PennDOT by 09/11/2012.
Sincerely,
Janet L. Dolan, Director
Bureau of Driver Licensing
INFORMATION 8:00 a.m. to 5:00 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
VERIFICATION
I hereby verify that the statements made in this document are true and
correct. I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. Section 4904, relating to unsworn falsification to authorities.
Date i
FLED-ui`F ICC':
0j THE PR0THONC?r°, -;
2013 MAR 20 PM 1: 4 9
CUMBERLAND CU NTY
KIMBERLY I. GROGG, PENNSYLVANIA
Appellant
v.
COMMONWEALTH OF IN THE COURT OF COMMON PLEAS
PENNSYLVANIA DEPARTMENT OF OF THE NINTH JUDICIAL DISTRICT
TRANSPORTATION BUREAU OF 2012-05518 CIVIL TERM
DRIVER LICENSING,
Appellee LICENSE SUSPENSION APPEAL
IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925
Placey, C.P.J., 20 March 2013.
The present case arises from an appeal of a PennDOT suspension to the
Cumberland County Court of Common Pleas, which was dismissed on 13 December
2012. Following that decision, Appellant, Kimberly I. Grogg, hereinafter "Licensee," filed
a timely appeal to the Commonwealth Court. Licensee's Concise Statement of Matters
Complained of on Appeal alleges that this court committed an error of law when it
dismissed the license suspension appeal and found that Licensee consciously refused
to submit to chemical testing. This opinion is in support of the 13 December 2012
decision.
FINDING OF FACTS
The salient facts from the hearing are as follows:
1. On 14 July 2012, a multiple year veteran officer, hereinafter the "Officer," of
the Hampden Township Police Department was working his shift on uniform
patrol duty.'
Notes of Testimony, 12 December 2012, p. 5-6 (hereinafter N.T. at_).
2. The Officer was dispatched by Cumberland County Dispatch Center to the
report of a hit and run crash in the parking lot of a bar.2
3. The Officer was advised that a probation officer, who was making the call to
the dispatch center, had made contact with Licensee and suspected that she
may be under the influence of alcohol.3
4. Upon arriving at the scene, the Officer spoke with the probation officer on
duty, who related information regarding what had occurred when Licensee
attempted to leave the parking lot.4
5. The location of the bar is associated with the hotel known as the Park Inn,
located along the Carlisle Pike.5
6. Access to the Park Inn is controlled by a traffic light on the Carlisle Pike
where it intersects with I Street on the Navy Depot side, and Van Patten Drive
on the Park Inn sides
7. The police contact occurred in the parking lot as Licensee's vehicle was
stopped by the probation officer while attempting to exit via Van Patten Drive
at the traffic light controlled intersection.'
2 N.T. at 6.
3 N.T. at 6-7.
4 N.T. at 7-8.
5 N.T. at 18.
s N.T. at 18.
N.T. at 19.
2
8. The Officer made contact with Licensee while she was still inside the vehicle
and noted that she was chewing on mints, had red glassy eyes, and simply
stared at the Officer when he asked about the incident.8
9. The Officer asked Licensee to exit her vehicle to perform field sobriety testing,
which was conducted at the T-Mobile business located at a separate,
unconnected parking lot adjoining the roadway or the hotel/bar parking lot.9
10. The Officer noted at least six (6) distinct indicators of intoxication during the
field sobriety testing.10
11. In addition to these indicators, the Officer was informed of the parole officer's
observation that Licensee was unable to drive safely and Licensee's
admission to the Officer that she drank an alcoholic beverage, all of which led
the Officer to conclude that Licensee was under the influence of alcohol.'1
12. Licensee was placed under arrest for driving under the influence and
transported to Cumberland County Booking Center located within the
Cumberland County Prison for DUI processing and a chemical test.12
13. Thereafter, Licensee's actions, as shown in Commonwealth's Exhibit 2, were
deemed by the Officer to be a refusal.13
e N.T. at 7-8.
9 N.T. at 8.
10 N.T. at 11-3.
11 N.T. at 7, 11, 13.
12 N.T. at 13.
13 N.T. at 15.
3
14. Commonwealth's Exhibit 2, which is the video recording of Licensee's
processing at the Cumberland County Booking Center, shows in sequential
order the following: (a) a booking officer providing audio visual warnings to
Licensee, (b) the DL-26 form being read to Licensee verbatim by the Officer,
(c) a break of almost five minutes so Licensee could use the ladies' room, (d)
a rereading of the DL-26 warnings verbatim by the Officer during which time
Licensee began to sob audibly, and finally (e) the Officer asking no less than
five times in various ways for Licensee to take the chemical test which was
met with increased audible sobbing until the Officer deemed her response a
refusal and left the video processing area.
15. Commonwealth's Exhibit 2 then shows Licensee's interaction with a booking
officer, at which time Licensee was no longer audibly sobbing and was
making inquiries, challenging the booking officer, and answering some of the
booking officer's questions.
16. The court did not consider any actions by Licensee as shown by the video
after she indicated to a booking officer that she wanted to talk to an attorney.
DISCUSSION
In order to sustain this Licensee's suspension for a refusal to submit to chemical
testing under Section 1547 of the Vehicle Code, the Commonwealth must establish that
Licensee: (1) was arrested by a police officer who had reasonable grounds to believe
that the licensee was operating or physically controlling a vehicle while under the
influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so;
and (4) was warned that refusal might result in a license suspension. Kollar v. Dep't of
4
Transp., Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010). "The
standard of reasonable grounds to support a license suspension does not rise to the
level of probable cause required for a criminal prosecution." Sisinni v. Dept, of
Transp., Bureau of Driver Licensing, 31 A.3d 1254, 1257, (Pa. Cmwlth. 2011), citing
Banner v. Dep't of Transp., Bureau of Licensing, 737 A.2d 1203, 1207 (Pa. 1999).
In order to find reasonable grounds exist, the court must view the circumstances as they
appeared at the time of the incident and determine whether a person in the position of
the police officer could have resolved that the licensee was indeed operating a vehicle
under the influence of alcohol. Id., citing Stahr v. Dep't of Transp., Bureau of Driver
Licensing, 969 A.2d 37, 40 (Pa. Cmwlth. 2009).
Under Pennsylvania jurisprudence, it is well-settled that anything less than an
"unqualified, unequivocal assent" constitutes a refusal under Section 1547 of the
Vehicle Code. Dep't of Transp. v. Renwick, 669 A.2d 934, 939 (Pa. 1996). A refusal
may be demonstrated by a licensee's conduct rather than verbal expressions. See,
e.g., Id. (upon request to submit to testing, the licensee closed her eyes, turned her
head, and ignored the officer); McCloskey v. Dep't of Transp., Bureau of Driver
Licensing, 722 A.2d 1159, 1163 (Pa. Cmwlth. 1999) (a licensee intentionally stalled
and failed to respond for eight minutes after being read implied consent warnings). "The
frustration of purpose doctrine provides that a refusal under Section 1547 can be
implied from the conduct of the licensee which obstructs or frustrates the administration
of the chemical test." McCamey v. Commonwealth, 601 A.2d 471, 472, n. 2 (P.
Cmwlth. 1991). "Police officers are not required to spend time either cajoling an
arrestee or waiting for him to change his mind." Dept. of Transp. v. Ferrara, 493 A.2d
5
154, 156-7 (Pa.Cmwlth. 1985)
Reasonable grounds. Upon consideration of the facts presented, the Officer had
more than reasonable grounds to believe that Licensee was operating a vehicle while
under the influence of alcohol. Prior to arriving, the Officer was supplied with
information from dispatch of a hit and run incident, which was corroborated by an on-
scene report from an eyewitness. The Officer was then duty bound to investigate further
and found an unresponsive Licensee behind the wheel, who exhibited classic signs of
intoxication. Taken together, these facts are sufficient to support the conclusion that the
Officer had reasonable grounds.
Request to submit and refusal. On two separate occasions following the reading
of the implied consent warnings, the Officer requested Licensee to submit to a chemical
test. Each time, Licensee was non-responsive to the inquiry. During the first occasion,
Licensee responded by requesting to use the bathroom, which the Officer courteously
and professionally permitted; however, it is noted that the law would not require him to
do so. Upon Licensee's return from the bathroom, the Officer repeatedly and in various
ways requested the Licensee to submit to a chemical test. In all of these requests,
Licensee's refusal was demonstrative rather than verbal. It was not lost in this court's
review of the video that after the Officer's departure, following his determination that
Licensee's response was a refusal, that Licensee was able to verbalize not only her
responses, but was able to conduct her own interrogation of the booking officer.
Warning of consequences of refusal. The video clearly shows the Officer reading
verbatim, not once but twice, the implied consent warnings required from PennDOT's
form DL-26. A copy of the warning that was used is part of the Commonwealth's Exhibit
6
1. The Officer read it clearly and distinctly without undue haste or intemperate tonal
reflection. This is a classic example of what the courts expect from our police officers.
CONCLUSION
The testimony of the Officer, corroborated by the video of the Officer's interaction
at the booking center, clearly demonstrates reasonable grounds to request Licensee to
submit to a chemical test, which she demonstratively refused to do after hearing two
verbatim warnings that refusal may result in license suspension. This judgment is more
than amply supported by the record and the Commonwealth Court should affirm the 13
December 2012 decision, which dismissed the license suspension appeal and
reinstated the license suspension.
BY THE COURT,
Thom s A. Placey C.P.J.
Distribution:
/Edward F. Spreha, Jr., Esq.
Philip Bricknell, Esq.
c �
1300 9�/3
7
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
Commonwealth Court of PA
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Commonwealth Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
KIMBERLY L. GROGG
Vs.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF
TRANSPORTATION BUREAU OF DRIVER LICENSING
2012-5518 CIVIL TERM
24 CD 2013
The documents comprising the record have been numbered from No. 1 to 59, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 3/26!2013.
D4dBueo,Pr ;notary
Alma Kostjerevac, Deputy
Ag a_4djfigg&j cgo of this certificate is enclosed. Please sign and dote copy,thereby
acka a receipt of this record.
Date Signature & Title
i'
i
r
Commonwealth of Pennsylvania
County of Cumberland ss.
i
1, David D.Buell Prothonotary
fof the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full,true and correct copy of the whole record of the
case therein stated, wherein
KIMBERLY I. GROGG
Plaintiff, and COMMONWEALTH OF
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING
Defendant, as the same remains of record
before the said Court at No. 2012-5518 of
Civil Term.
In TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court
this 26TH day of CH A. D., 2013
rl
i�
Prothonotary
I, Kevin A.Hess President .Judge of the Ninth
.Judicial District, composed of the County of Cumberland, do certify that
David D.Buell , by whom the annexed record, certificate and
attestation were made and given,and who,in his own proper handwriting,thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County,was,at the time of so doing,and now is
Prothonotary in and for said County of Cumberland in
the Commonwealth of Pennsylvania,duly commissioned and qualified to all of whose acts as such full faith
and credit are and ought to be given as well in Courts of judicature as elsewhere,and t at the said record,
certificate and attestation are in due form of law and made by thpproper officer.
f`
President.fudge
Commonwealth of Pennsvlvania
County of Cumberland ss:
1, David D.Buell Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable Kevin A.Hess
by whom the foregoing attestation was made,and who has thereunto subscribed his name,was,at the time
of making thereof,and still is President Judge of the Court of Common Pleas,Orphan'Court and Court of
Quarter Sessions of the Peace in and for said County,duly Commissioned and qualified;to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF, 1 have hereunto
set my hand and affixed the seal of said Court this
26TH day of CH A.D. 2013
1
Prothonotary
i
i
i
No. Term 19
No. 2012-5518 Civil Term
24 CD 2013
KIMBERLY I. GROGG
Versus
COMMONWEALTH OF
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION
BUREAU OF DRIVER
LICENSING
EXEMPLIFIED RECORD
From Cumberland County
Debt, $ I nt.
from
Costs
Entered and Filed
Prothonotary.
Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
Cumberland
county in the Commonwealth of Pennsylvania
2012-5518 Civil Term
to No. 24 CD 2013 Term, 19 is contained the following:
COPY OF Appearance DOCKET ENTRY
KIMBERLY I. GROGG
vs.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
**SEE CERTIFIED COPY OF DOCKET ENTERIES**
Civil Case-Print - y
2012-05518 GROGG KIMBERLY I (vs) PENNSYLVANIA COMMONWEALTH OF
Reference No. . : Filed. . . . . . . . : 9/06/2012
Case Ty e . . . . . : CIVIL APPEALS - AGENCI Time. . . . . . . . . : 10:51
Judg men?. . . . . . 00 Execution Date 0/00/0000
Judge Assigned: PLACEY THOMAS A Jury Trial. . . .
Disposed Desc. : DISMISSED Disposed Date. 12/14/2012
------------ Case Comments ------------- Higher Crt 1. : 24 CD 2013
Higher Crt 2 . :
********************************************************************************
General Index Attorney Info
GROGG KIMBERLY I PLAINTIFF SPREHA EDWARD F JR
410 MERCURY DRIVE
MECHANICSBURG PA
PENNSYLVANIA COMMONWWEALTH OF DEFENDANT BRICKNELL PHILIP M
DEPARTMENT OF TRANSPORTATION
THIRD FLOOR
RIVERFRONT OFFICE CENTER
HARRISBURG PA 17104
* Date Entries
FIRST ENTRY -
�- 9/06/2012 ATTYAL FROM SUSPENSION OF DRIVERS LICENSE - BY EDWARD F SPREHA JR
-------------------------------------------------------------------
9/11/2012 ORDER - 9/10/12 - IN RE: PETITION - HEARING 12/12/12 Q 1:30 PM IN
CR 6 CUMB CO COURTHOUSE - BY THE COURT THOMAS AA PLACEY J
COPIES MAILED 9/11/12
-------------------------------------------------------------------
g 12/14/2012 ORDER OF COURT - 12/13/12 -IN RE: LICENSE SUSPENSION APPEAL -
DISMISSED AND THE SUSPENSION THAT IS THE BASIS OF THIS APPEAL
SHALL BE REINSTATED - BY THE COURT THOMAS A PLACEY J
COPIES MAILED 12/14/12
R ------ -- ------ -- ------------ ----- - -- ------ - ------ --
�3 1/11/2013 NOTICE-OF-APPEAL-TO-COMMONWEALTH-COURT---BY-EDWARD-F-SPREHA-JR-----
ATTY FOR DEFT **CERT COPY MAILED TO COMMONWEALTH COURT**
-------------------------------------------------------------------
'(� 1/14/2013 ORDER OF COURT - 1L14/13 - IN RE: NOTICE OF APPEAL - APPELLANT
DIRECTED TO FILE OFF RECORD IN THIS COURT AND TO SERVE UPON THE
UNDERSIGNED JUDGE A CONCISE STATEMENT OF ERRORS COMPLAINED OF ON
APPEAL NO LATER THAN 21 DAYS AFTER ENTRY OF THIS ORDER OF COURT -
ANY ISSUES NOT PROPERLY INCLUDED IN THE STATEMENT TIMELY FILED AND
SERVED PURSUANT TO THIS ORDER SHALL BE DEEMED WAIVED - BY THE
COURT-THOMAS-A-PLACEY-J-_-COPIES-MAILED 1/15/13
-------------------------------
S �`f 1/17/2013 TRANSCRIPT OF PROCEEDINGS - 12/12/12 - BEFORE HONORABLE THOMAS A
PLACEY J
------------------------------------------ - - - -
------ -- ---- --- ----
-
570- 57G 1/18/2013 APPLICATION FOR SUPERSEDEAS - BY EDWARD F SPREHA JR ATTY FOR DEFT
-------------------------------------------------------------------
i, q 1/23/2013 ORDER - 1/23/13 - IN RE: APPELLEE'S NOTICE OF APPEAL SHALL STAY
DIRECTEDSUPERSEDE THETHE
DEPTSUSPENSION
T RANSPORTATION DRIVER'S
NOTICE DATEDLICENSE 12V/d225/12WAS
BY
THE COURT THOMAS A PLACEY J - COPY MAILED 1/23/13
--------------------------------------- -
--------------------------
5rT_ ,c-$ 2/01/2013 SPREHAEJRTATTYENT DEFTTTERS COMPLAINED-OF ON APPEAL - BY EDWARD F
-------------------------------------------------------------------
5q 2/04/2013 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 24 CD 2013
-------------------------------------------------------------------
�� b g 3/20/2013 OPINION PURSUANT TO PA RAP 1925 - 3/20/13 - BY THE COURT THOMAS A
PLACEY J - COPIES MAILED 3/20/13
-------------------------------------------------------------------
3/26/2013 NOTICE OF DOCKET ENTRIES MAILED TO EDWARD F SPREHA JR ESQ AND
n PHILIP M BRICKNELL ESQ
se. i fS - - - LAST ENTRY - - - - - - - - - - - - - -
******************** **********************************************************
* Escrow Information
* Fees & Debits Beg Bal Pymts/Adj End Bal
Civil Case Print
2012-05518 GROGG KIMBERLY I (vs) PENNSYLVANIA COMMONWEALTH OF
Reference No. Filed. 9/06/2012
Case Ty e. . . . . : CIVIL APPEALS - AGENCI Time. . . . . . . . . : 10:51
Judgmen�. . . . . . : . 00 Execution Date 0/00/0000
Judge Assigned: PLACEY THOMAS A Jury Trial. . . .
Disposed Desc. : DISMISSED Disposed Date. 12/14/2012
------------ Case Comments ----------- Higher Crt 1. : 24 CD 2013
Higher Crt 2 . :
******************************************************* ************************
PETITION 65.25 65.25 . 00
TAX ON PETITION .50 .50 . 00
SETTLEMENT 9.50 9. 50 . 00
AUTOMATION FEE 5 .00 5. 00 . 00
JCP FEE 23 .50 23. 50 . 00
APPEAL HIGH CT 57 .00 57. 00 . 00
------------------------ ------------
160.75 160.75 . 00
* End of Case Information
********************************************************************************
TRUE COPY FROM RECORD
In Testimony whereof,)here unto set my hand
and the of saki ,Pa.
This the
of 20 13
Pn�lhoratary
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
Commonwealth Court of PA
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Commonwealth Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
KIMBERLY L. GROGG
Vs. "
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF
TRANSPORTATION BUREAU OF DRIVER LICENSING p x C-)F
0 ors.,
2012-5518 CIVIL TERM --;
24 CD 2013
The documents comprising the record have been numbered from No. 1 to 59, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 3/26/2013.
David . Bue , P othonotary
Alma Kostjerevac, Deputy
An additional o2yy of this certificate is enclosed. Please sisn and date cony, thereby
acknowledai'ins receipt of this record.
Date Signature & Title
s �
13 11114 12 PM 12- E ',
JMDE R i.,,rai1J Z ry e
� ENNSYI._VA I�i3
KIMBERLY I. GROGG, :IN THE COURT OF COMMON PLEAS
Petitioner :CUMBERLAND COUNTY, PENNSYLVANIA
V. :NO. 12-5518 CIVIL
COMMONWEALTH OF PENNSYLVANIA :LICENSE SUSPENSION APPEAL
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
Respondent
PETITIONER'S REQUEST FOR SUPERSEDEAS
AND NOW, comes Kimberly Grogg, hereinafter Appellant, by and through her
attorneys, Wagner& Spreha, who respectfully represent:
1. The Appellant has filed a timely appeal to the Commonwealth Court
as a result of this Court's dismissal of her license suspension appeal for an alleged chemical
test refusal that occurred on July 14, 2012 in Cumberland County, Pennsylvania.
2. After the dismissal of the appellant's license suspension appeal, the Department of
Transportation has reinstituted her 12 month suspension of her Pennsylvania driving
privileges.
3. The appellant is requesting that this Court order that her pending appeal stay the
suspension of her driving privileges pending the outcome in the Commonwealth Court.
4. If this Court does not grant her request, she will be irreparably harmed pending the
disposition of the appeal as she requires her driving privileges for her employment and care
taking of her child.
5. The Department of Transportation will not be prejudiced by the granting of this stay
as, if the appellant is unsuccessful in her appeal, the Department will be permitted to reinstate
the suspension.
the suspension.
WHEREFORE, the appellant respectfully requests this Court order that her suspension
be stayed pending the outcome of her appeal.
Respectfully submitted,
WAGNER&SPREHA
2-
ILI
Edward F. Spr a, J . sq.
Attorney ID N . 786
Attorney for Defendant
2233 North Front Street
Harrisburg, PA 17110
717-234-7051
Dated.
� � I
CERTIFICATE OF SERVICE
1, Jennifer L. Buchter, secretary of the lawfirm of WAGNER&SPREHA, do hereby
certify that I have served a copy of the foregoing document to the following persons by
U.S. First Class Mail the same and addressed as follows:
Philip Bricknell, Esq.
Pennsylvania Department of Transportation
Office of Chief Counsel
1101 S. Front Street
Harrisburg, PA 17104
fifer L BWhter
finer & preha
2g3 N. Front Street, Harrisburg, PA 17110
717-234-7051, Attorneys for Petitioner
Dated: y j .,l
v
rt ,Ii) ,. -,_, , , , .,„,,.. .^ ''" 0-
1 THE PROTH0 O AR
2013 JUN 13 Pli 31 24
Cif PEM YLVANIA
KIMBERLY I. GROGG, :IN THE COURT OF COMMON PLEAS
Petitioner :CUMBERLAND COUNTY, PENNSYLVANIA
v. :NO. 12-5518 CIVIL
COMMONWEALTH OF PENNSYLVANIA :LICENSE SUSPENSION APPEAL
DEPARTMENT OF TRANSPORTATION :
BUREAU OF DRIVER LICENSING,
Respondent
ORDER
AND NOW, this l day of , 2013, it is hereby ordered and decreed
___N4e)igta,&41,___
that the Petitioner's timely filed appeal to the Commonwealth Court on the above-captioned
matter shall serve to supersede the underlying suspension of her driving privileges until the
disposition of the Commonwealth Court.
B �I�E�-GO'f�2"T W________
Judge
Thomas A.Placey
Distribution:
Common Pleas Judge
Court Administration - pLte�.cL r 0 ���
Pro honotary
dward F. Spreha, Jr., Esq., 2233 N. Front Street, Harrisburg, PA 17110
flip Bricknell, Esq., Pennsylvania Department of Transportation, Office of Chief
Counsel, 1101 S. Front Street, Harrisburg, PA 17104
bfl2//3
- -iy
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly I. Grogg,
Appellant
No. 24 C.D. 2013
V.
Submitted: June 28, 2013
Commonwealth of Pennsylvania,
Department of Transportation, C/)r-
Bureau of Driver Licensing Lower C..1-
D� r
D C-
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judges
HONORABLE PATRICIA A. McCULLOUGH, Judge -
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 31, 2013
Kimberly I. Grogg (Licensee) appeals from the December 13, 2012
order of the Court of Common Pleas of Cumberland County (trial court) denying her
statutory appeal from a one-year suspension of her driving privileges imposed by the
Department of Transportation (DOT) pursuant to section 1547(b)(1) of the Vehicle
Code.' We affirm.
On July 14, 2012, Officer Nathaniel Funk of the Hampden Township
Police Department responded to a hit-and-run crash in the parking lot of a local bar
while on uniformed patrol duty. (Reproduced Record (R.R.) at 16a.) Before Officer
' Section 1547(b)(1)(i) provides that if any person placed under arrest for driving while
under the influence is requested to submit to a chemical test and refuses to do so, DOT shall
suspend the person's operating privilege for one year. 75 Pa.C.S. §1547(b)(1)(i).
Funk reached the scene of the collision, the Cumberland County Dispatch Center
advised the Officer that a witness had made contact with Licensee and that he
suspected Licensee was under the influence of alcohol. (R.R. at 16a-17a.)" When
Officer Funk arrived at the parking lot, the witness who related the facts of the hit
and-run reiterated his suspicion that Licensee was under the influence of alcohol.
(R.R. at 17a-18a.)
Officer Funk made contact with the Licensee while she was still in her
vehicle and observed that she was chewing on mints, had red glassy eyes, and was
unresponsive to his questions. Id. Officer Funk then escorted Licensee to a nearby
parking lot to conduct field sobriety testing. (R.R. at 18a-19a.) Before conducting
the field sobriety tests, Licensee admitted that she had consumed one drink. (R.R. at
21a.) Officer Funk conducted field sobriety testing and observed several indicators
of intoxication. (R.R. 18a-23a, 55a.) After considering Licensee's performance in
the field sobriety test, the circumstances of the hit-and-run, and Licensee's admission,-
Officer Funk concluded that Licensee was unable to operate her vehicle and placed
Licensee under arrest for driving while under the influence of alcohol or a controlled
substance (DUI). (R.R. at 23a, 55a.)
Officer Funk transported Licensee to Cumberland County Prison and
placed. her in. the .custody. _of the corrections officers fon-processing. and.,chemical:._.
testing. (R.R. at 24a.) Officer Funk read verbatim the chemical test warnings to
Licensee from the DL-26 Forme and signed the affidavit on the bottom of the form
2 Form DL-26 contains the chemical testing warnings required by section 1547 of the
Vehicle Code, 75 Pa.C.S. §1547, pursuant to our Supreme Court's decision in Department of
Transportation, Bureau of'Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). These
warnings inform a motorist that he or she is under arrest; that he or she is being requested to submit
to a chemical test; that he or she will lose his or her operating privileges and potentially face stricter
(Footnote continued on next page...)
2
indicating that he had read the warnings. (R.R. at 25a-26a, 56a.) Officer Funk also
informed Licensee that if she refused to consent to chemical testing she could lose her
license for twelve to eighteen months. (R.R. at 56a.) Officer Funk then offered to let
Licensee read the warnings herself from the DL-26 Form, but, in reply, Licensee
asked to go to the ladies' room. (R.R. at 56a.) Officer Funk allowed Licensee to go
to the bathroom, where she was away for approximately five minutes. (R.R. at 56a.)
When Licensee returned from the bathroom, Officer Funk re-read the warnings from
the DL-26 Form, during which Licensee began ciying. (R.R. at 27a, 56a.) Officer
Funk next asked Licensee to take the chemical test five different times, but she did
not respond to his requests. (R.R. at 56a.) After waiting two minutes for Licensee to
respond, Officer Funk deemed Licensee's conduct a refusal to submit to chemical
testing. (R.R. at 27a, 55a.) When Officer Funk left the booking room, Licensee
carried on a conversation with the booking officer, where she asked questions and
indicated that she wanted an attorney. (R.R. at 56a.)
After receiving notice that Licensee refused to submit to chemical
testing, DOT mailed her a notice on August 7, 2012, advising her that her driving
privileges were being suspended for a period of twleve months, effective September
11, 2012, pursuant to section 1547(b)(1)(i) of the Vehicle Code. (R.R. at 6a.)
Licensee filed a.timely appeal, and on December 12, 2012, the trial.court held.a.de
novo hearing. (R.R. at 10a.)
At -the hearing, Officer Funk testified that the hit-and-run collision
occurred at approximately 1:34 a.m. (R.R. at 26a.) He then testified that he and
(continued...)
criminal penalties if the request is refused; and that there is no right to remain silent or speak to an
attorney.
3
Licensee arrived at Cumberland County Prison at 2:30 a.m., and he read Licensee the
DL-26 Form at approximately 2:32 a.m. (R.R. at 27a.) Officer Funk testified that at
2:41 a.m., he determined that Licensee had refused to submit to chemical testing.
(R.R. at 27a.) Officer Funk stated that although Licensee did not verbally refuse to
take the test, he considered her conduct in failing to respond to his requests to take
the test as evidencing a refusal. (R.R. at 27a-28a.)
DOT admitted a video recording of the booking into evidence. (R.R. at
24a-25a.) The recording showed Officer Funk reading the warnings from the DL-26
Form, after which Licensee was given a five-minute bathroom break. (R.R. at 25a,
56a.) When Licensee returned, Officer Funk re=read the warnings, Licensee began to
cry, and Officer Funk requested that Licensee submit to testing five times. (R.R. at
56a.) After approximately two minutes of waiting, Officer Funk determined that her
lack of a response constituted a refusal. (R.R. at 32a-34a, 56a.)
By order dated December 13, 2012, the trial court dismissed Licensee's
appeal. The trial court determined that: (1) Officer Funk had reasonable grounds to
believe that Licensee was operating or physically controlling a vehicle while under
the influence of alcohol; (2) Officer Funk requested Licensee to submit to a chemical
test on multiple occasions; (3) Licensee refused to do so by not responding to the
requests;=and (4) Licensee was•warned that she may lose her license if,she. did not
submit to the tests. (R.R. at 48a, 58a-59a.)
On appeal to this Court,3 Licensee argues that the trial court erred in
concluding that she refused to submit to chemical testing. Relying on Bomba v.
s Our scope of review is limited to determining whether the findings of fact are supported by
competent evidence or whether the trial court committed an error of law or an abuse of discretion' n
reaching its decision. Pasecki v. Department of Transportation, Bureau of Driver Licensing, 6 A.3d
1067, 1070 (Pa. Cmwlth. 2010).
(Footnote continued on next page...)
4
Department of Transportation, Bureau of Driver .Licensing, 28 A.3d 946 (Pa.
Cmwlth. 2011), Licensee argues that her actions do not demonstrate an attempt to
deliberately delay or undermine the testing process because the Commonwealth still
had close to an hour to obtain a blood sample for purposes of section 3802 of the
Vehicle Code.4 Licensee claims that she became emotional when faced with the
gravity of the situation, asserts that when she returned from the bathroom she was
only provided with two minutes to submit to the chemical testing, and argues that
Officer Funk should have given her more time before recording the refusal.
In order to sustain a suspension of operating privileges under section
1547 of the Vehicle Code, DOT must establish that: (1) the licensee was arrested for
drunken driving by a police officer who had reasonable grounds to believe that the
motorist was operating a motor vehicle while under the influence of alcohol; (2) the
licensee was requested to submit to a chemical test; (3) the licensee refused to submit;
and (4) the licensee was warned that refusal would result in a license suspension.
Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d
636, 640 (Pa. Cmwlth. 2006). The only issue in this appeal is whether Licensee
refused to submit to chemical testing.
In proving whether a licensee refused to submit to chemical testing,
DOT has the burden of showing that the licensee was offered .a meaningful
Opportunity to submit to chemical testing. Petrocsko v. Department of
(continued...)
4 Sections 3802 of the Vehicle Code provides that an individual may not drive, operate, or
be in physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol
such that the alcohol concentration in the individual's blood or breath is over the respective
statutory threshold percentage within two hours after the individual has driven, operated, or been in
actual physical control of the movement of the vehicle. 75 Pa.C.S. §3802.
5
Transportation, Bureau of Driver Licensing, 745 A.2d 714, 716 (Pa. Cmwlth. 2000).
If DOT satisfies its burden, the licensee must establish that the refusal was not
knowing or conscious or that the licensee was physically unable to take the test.
Broadbelt, 903 A.2d at 640.
Whether a motorist refused to submit to a chemical test is a question of
law that depends on the factual determinations of the trial court. Hudson v.
Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa.
Cmwlth. 2003); Department of Transportation, Bureau of Traffic Safety v. Mumma,
468 A.2d 891, 892 (Pa. Cmwlth. 1983). It is well-settled that "anything less than an
unqualified, unequivocal assent" to submit to testing constitutes a refusal to do so.
Department of Transportation v. Renwick, 543 Pa. 122, 131, 669 A.2d 934, 938
(1996); Lanthier v. Department of Transportation, Bureau of Driver Licensing, 22
A.3d 346, 348 (Pa. Cmwlth. 2011); Miele v. Commonwealth, 461 A.2d 359, 360 (Pa.
Cmwlth. 1983). Furthermore, police officers are not required to spend time either
cajoling an arrestee or waiting for her to change her mind. Department of
Transportation, Bureau of Traffic Safety v. Ferrara, 493 A.2d 154,157 (Pa. Cmwlth.
1985).
It is also well-settled that silence can constitute a refusal. Renwick, 543
Pa-.-,at-13'1-,°669 A.2d at- 939,(holding that-,-by:closing her Eyes,,Aui-ning her-head; .and
ignoring the requests, licensee refused to submit to chemical testing); Broadbelt, 903
A.M at 641. In Broadbelt, the licensee was given approximately twelve minutes to
consider the warnings by-the officer and was repeatedly asked to -submit to blood
testing. This Court held that the licensee was given a meaningful opportunity to ask
questions and read the warnings and that his silence constituted a refusal. -We
reasoned that police officers have no duty to ensure that the licensee understands,the
6
warnings and reaffirmed that anything less than an unqualified, unequivocal assent
constitutes a refusal. Id.
Here, Licensee was given a meaningful opportunity to understand the
warnings in the DL-26 Form and consent to chemical testing. Officer Funk read the
warnings in full to Licensee before she went to the bathroom and then again when she
returned. Officer Funk provided Licensee with an opportunity to read the warnings
and to ask questions, and Licensee never indicated that she did not understand the
warnings. Although Licensee was given only two minutes after she returned from the
bathroom to assent, approximately nine minutes elapsed from when Officer Funk first
read the warnings until his fifth request that Licensee submit to testing. We reaffirm
that police officers are not required to spend time either cajoling an arrestee or
waiting for her to change her mind. Ferrara, 493 A.2d at 156-57. Similar to the
situation in Broadbelt, Licensee was provided with ample opportunities to consent.to
chemical testing, but she instead decided to ignore the requests and never made any
indication that she assented to take the test.
Licensee's reliance on Bomba is misplaced. In Bomba, the licensee was
arrested for DUI, and after being administered the warnings on the DL-26 Form, the
licensee consented to a breath test. A booking officer administered a breath test, but
the licensee did not provide a sufficient breath sample. The booking officer informed ;
the licensee that the failed breath test constituted a refusal, and the officer refused to
offer a second test. After the licensee was informed that she was deemed to have
refused the test, the licensee pleaded with the booking officer for another chance to
take the test. The licensee testified that she was very upset from her arrest and that it
affected her .ability to provide a breath sample on the first test. The trial court
credited the licensee's testimony and found that the licensee did not refuse the test
7
because she made a good faith but unsuccessful attempt to provide a breath sample
and immediately requested to take the test again. On appeal, this Court affirmed. We
concluded that the facts as found by the trial court established that the licensee did
not refuse the test and that her conduct did not delay or evidence a deliberate attempt
to.undermine the testing process. Id. at 949.
The facts of Bomba are readily distinguishable from the facts of the
present case. Unlike the licensee in Bomba, Licensee here did not manifest any kind
of assent or willingness to take the test at any point during the booking or after any of
Officer Funk's five requests to submit to chemical testing. Licensee argues that, like .
the licensee in Bomba, she did not deliberately delay or undermine the testing process
and therefore did not refuse the chemical test. However, in this case, the trial court
specifically found that Licensee's conduct demonstrated a refusal and that her failure
to submit to testing was an attempt to delay the testing process. The trial court's
findings in this regard are supported by the record and render Bomba factually
inapposite. .
Citing Bomba, Licensee also argues that because she was still within the
two hour limit for obtaining a chemical sample as required under section 3802 of the
Vehicle Code, Officer Funk should have given her more time to regain her
composure and consent. Licensee suggests that we extend a portion of our reasoning
in Bomba to the present facts and adopt a per se rule that gives arrestees more time to
consent so long as they are within the statutory two-hour limit to perform the
chemical testing. We decline Licensee's invitation to do so. Our decision in Bomba
never adopted such a rule, and this Court has never suggested that an arrestee must be
provided with a specific time span in which to consent to testing. Instead, this Court
has routinely held that a licensee must only be afforded "a meaningful opportunity"
8
to assent to testing. Petrocsko, 745 A.2d at 717. As explained above, the trial court
found that Licensee had a meaningful opportunity to assent to testing, never
affirmatively consented to testing, and was purposefully unresponsive to Officer
Funk's requests. Accordingly, we conclude that Bomba is limited by its unique facts
and is inapplicable here.
For the above-stated reasons, we hold that the trial court did not err in
determining the Licensee's silence constituted a refusal under section 1547 of the
Vehicle Code. Licensee does not attempt to negate her refusal by arguing that her
refusal was not knowing or conscious or that she was physically unable to take the
test. -Finally, Licensee does not dispute that DOT fulfilled its burden of proof with
respect to the other elements of section 1547.
Accordingly, we affirm.
0'
C
too
TRI
�7
A CCIA A. McCULLOZMWudge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly 1. Grogg,
Appellant
No. 24 C.D. 2413
V.
MM
r �-
Commonwealth of Pennsylvania, =:7j -;n
Department of Transportation, •<> ---
Bureau of Driver Licensing `n
O"ER
AND NOW, this 31t day of July, 2413, the December 13, 2412 order
of the Court of Coma-non Pleas of Cumberland County is affirmed.
PA CIA A. McCULL , udge
Certified from the Record
JUL 3 1 2013
and Order EX ft
Gr,
s r
Comruontueattb Court of Jenn phauia
Kristen W.Brown Pennsylvania Judicial Center
Prothonotary 601 Commonwealth Avenue,Suite 2100
Michael Krimmel,Esq. P.O.Box 69185
Chief Clerk of Commonwealth Court Harrisburg,PA 17106-9185
January 6, 2014 www.pacourts.us
CERTIFICATE OF REMITTAL/REMAND OF RECORD
TO: David D. Buell
Prothonotary
RE: Grogg, K v. DOT
24 CD 2013
Trial G :Cumberland County Court of-Common-Pleas
Trial Court Docket No: 12-5518 Civil
Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the
entire record for the above matter.
Original Record contents:
Item Filed Date Description
trial court record April 10, 2013 1
Remand/Remittal Date:
ORIGINAL RECIPIENT ONLY- Please acknowledge receipt by signing,dating,and returning
the enclosed copy of this certificate to our office. Copy recipients (noted below) need not
acknowledge receipt.
Respectfully
t' �� F J
' • -
%%
Commonwealth Court Filing Office
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{ Grogg, K v. DOT January 6, 2014
24 CD 2013
Letter to: Buell, David D.
Acknowledgement of Certificate of RemittalRemand of Record(to be returned):
Signature Date
Printed Name
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
•
Kimberly I. Grogg,
Appellant
: No. 24 C.D. 2013
v.
: Submitted: June 28, 2013
Commonwealth of Pennsylvania,
Department of Transportation, • c
Bureau of Driver Licensing : rn cr
r , r!-
�u
cirri z—
-42> co Q
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Jude �
HONORABLE PATRICIA A. McCULLOUGH, Judge `-
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 31, 2013
Kimberly I. Grogg (Licensee) appeals from the December 13, 2012
order of the Court of Common Pleas of Cumberland County (trial court) denying her
statutory appeal from a one-year suspension of her driving privileges imposed by the
Department of Transportation (DOT) pursuant to section 1547(b)(1) of the Vehicle
Code.' We affirm.
On July 14, 2012, Officer Nathaniel Funk of the Hampden Township
Police Department responded to a hit-and-run crash in the parking lot of a local bar
while on uniformed patrol duty. (Reproduced Record (R.R.) at 16a.) Before Officer
1 Section 1547(b)(1)(i) provides that if any person placed under arrest for driving while
under the influence is requested to submit to a chemical test and refuses to do so, DOT shall
suspend the person's operating privilege for one year. 75 Pa.C.S. §1547(b)(1)(i).
Funk reached the scene of the collision, the Cumberland County Dispatch Center
advised the Officer that a witness had made contact with Licensee and that he •
suspected Licensee was under the influence of alcohol. (R.R. at 16a-17a.) When
Officer Funk arrived at the parking lot, the witness who related the facts of the hit-
and-run reiterated his suspicion that Licensee was under the influence of alcohol.
(R.R. at 17a-18a.)
Officer Funk made contact with the Licensee while she was still in her
vehicle and observed that she was chewing on mints, had red glassy eyes, and was
unresponsive to his questions. Id. Officer Funk then escorted Licensee to a nearby
parking lot to conduct field sobriety testing. (R.R. at 18a-19a.) Before conducting
the field sobriety tests, Licensee admitted that she had consumed one drink. (R.R. at
21a.) Officer Funk conducted field sobriety testing and observed several indicators
of intoxication. (R.R. 18a-23a, 55a.) After considering Licensee's performance in
the field sobriety test, the circumstances of the hit-and-run, and Licensee's admission,
Officer Funk concluded that Licensee was unable to operate her vehicle and placed
Licensee under arrest for driving while under the influence of alcohol or a controlled
substance (DUI). (R.R. at 23a, 55a.)
Officer Funk transported Licensee to Cumberland County Prison and
placed her in the custody of the corrections officers for processing and chemical
testing. (R.R. at 24a.) Officer Funk read verbatim the chemical test warnings to
Licensee from the DL-26 Forme and signed the affidavit on the bottom of the form
2 Form DL-26 contains the chemical testing warnings required by section 1547 of the
Vehicle Code, 75 Pa.C.S. §1547, pursuant to our Supreme Court's decision in Department of
Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). These
warnings inform a motorist that he or she is under arrest; that he or she is being requested to submit
to a chemical test; that he or she will lose his or her operating privileges and potentially face stricter
(Footnote continued on next page...)
2
indicating that he had read the warnings. (R.R. at 25a-26a, 56a.) Officer Funk also
informed Licensee that if she refused to consent to chemical testing she could lose her
license for twelve to eighteen months. (R.R. at 56a.) Officer Funk then offered to let
Licensee read the warnings herself from the DL-26 Form, but, in reply, Licensee
asked to go to the ladies' room. (R.R. at 56a.) Officer Funk allowed Licensee to go
to the bathroom, where she was away for approximately five minutes. (R.R. at 56a.)
When Licensee returned from the bathroom, Officer Funk re-read the warnings from
the DL-26 Form, during which Licensee began crying. (R.R. at 27a, 56a.) Officer
Funk next asked Licensee to take the chemical test five different times, but she did
not respond to his requests. (R.R. at 56a.) After waiting two minutes for Licensee to
respond, Officer Funk deemed Licensee's conduct a refusal to submit to chemical
testing. (R.R. at 27a, 55a.) When Officer Funk left the booking room, Licensee
carried on a conversation with the booking officer, where she asked questions and
indicated that she wanted an attorney. (R.R. at 56a.)
After receiving notice that Licensee refused to submit to chemical
testing, DOT mailed her a notice on August 7, 2012, advising her that her driving
privileges were being suspended for a period of twleve months, effective September
11, 2012, pursuant to section 1547(b)(1)(i) of the Vehicle Code. (R.R. at 6a.)
Licensee filed a timely appeal, and on December 12, 2012, the trial court held a de
novo hearing. (R.R. at 10a.)
At the hearing, Officer Funk testified that the hit-and-run collision
occurred at approximately 1:34 a.rn. (R.R. at 26a.) He then testified that he and
(continued...)
criminal penalties if the request is refused; and that there is no right to remain silent or speak to an
attorney.
3
Licensee arrived at Cumberland County Prison at 2:30 a.m., and he read Licensee the
DL-26 Form at approximately 2:32 a.m. (R.R. at 27a.) Officer Funk testified that at
2:41 a.m., he determined that Licensee had refused to submit to chemical testing.
(R.R. at 27a.) Officer Funk stated that although Licensee did not verbally refuse to
take the test, he considered her conduct in failing to respond to his requests to take
the test as evidencing a refusal. (R.R. at 27a-28a.)
DOT admitted a video recording of the booking into evidence. (R.R. at
24a-25a.) The recording showed Officer Funk reading the warnings from the DL-26
Form, after which Licensee was given a five-minute bathroom break. (R.R. at 25a,
56a.) When Licensee returned, Officer Funk re-read the warnings, Licensee began to
cry, and Officer Funk requested that Licensee submit to testing five times. (R.R. at
56a.) After approximately two minutes of waiting, Officer Funk determined that her
lack of a response constituted a refusal. (R.R. at 32a-34a, 56a.)
By order dated December 13, 2012, the trial court dismissed Licensee's
appeal. The trial court determined that: (1) Officer Funk had reasonable grounds to
believe that Licensee was operating or physically controlling a vehicle while under
the influence of alcohol; (2) Officer Funk requested Licensee to submit to a chemical
test on multiple occasions; (3) Licensee refused to do so by not responding to the
requests; and (4) Licensee was warned that she may lose her license if she did not
submit to the tests. (R.R. at 48a, 58a-59a.)
On appeal to this Court,3 Licensee argues that the trial court erred in
concluding that she refused to submit to chemical testing. Relying on Bomba v.
3 Our scope of review is limited to determining whether the findings of fact are supported by
competent evidence or whether the trial court committed an error of law or an abuse of discretion in
reaching its decision. Pasecki v. Department of Transportation, Bureau of Driver Licensing, 6 A.3d
1067, 1070 (Pa. Cmwlth. 2010).
(Footnote continued on next page...)
4
Department of Transportation, Bureau of Driver Licensing, 28 A.3d 946 (Pa.
Cmwlth. 2011), Licensee argues that her actions do not demonstrate an attempt to
deliberately delay or undermine the testing process because the Commonwealth still
had close to an hour to obtain a blood sample for purposes of section 3802 of the
Vehicle Code.4 Licensee claims that she became emotional when faced with the
gravity of the situation, asserts that when she returned from the bathroom she was
only provided with two minutes to submit to the chemical testing, and argues that
Officer Funk should have given her more time before recording the refusal.
In order to sustain a suspension of operating privileges under section
1547 of the Vehicle Code, DOT must establish that: (1) the licensee was arrested for
drunken driving by a police officer who had reasonable grounds to believe that the
motorist was operating a motor vehicle while under the influence of alcohol; (2) the
licensee was requested to submit to a chemical test; (3) the licensee refused to submit;
and (4) the licensee was warned that refusal would result in a license suspension.
Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d
636, 640 (Pa. Cmwlth. 2006). The only issue in this appeal is whether Licensee
refused to submit to chemical testing.
In proving whether a licensee refused to submit to chemical testing,
DOT has the burden of showing that the licensee was offered a meaningful
opportunity to submit to chemical testing. Petrocsko v. Department of
(continued...)
4 Sections 3802 of the Vehicle Code provides that an individual may not drive, operate, or
be in physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol
such that the alcohol concentration in the individual's blood or breath is over the respective
statutory threshold percentage within two hours after the individual has driven, operated, or been in
actual physical control of the movement of the vehicle. 75 Pa.C.S. §3802.
5
t
Transportation, Bureau of Driver Licensing, 745 A.2d 714, 716 (Pa. Cmwlth. 2000).
If DOT satisfies its burden, the licensee must establish that the refusal was not
knowing or conscious or that the licensee was physically unable to take the test.
Broadbelt, 903 A.2d at 640.
Whether a motorist refused to submit to a chemical test is a question of
law that depends on the factual determinations of the trial court. Hudson v.
Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa.
Cmwlth. 2003); Department of Transportation, Bureau of Traffic Safety v. Mumma,
468 A.2d 891, 892 (Pa. Cmwlth. 1983). It is well-settled that "anything less than an
unqualified, unequivocal assent" to submit to testing constitutes a refusal to do so.
Department of Transportation v. Renwick, 543 Pa. 122, 131, 669 A.2d 934, 938
(1996); Lanthier v. Department of Transportation, Bureau of Driver Licensing, 22
A.3d 346, 348 (Pa. Cmwlth. 2011); Miele v. Commonwealth, 461 A.2d 359, 360 (Pa.
Cmwlth. 1983). Furthermore, police officers are not required to spend time either
cajoling an arrestee or waiting for her to change her mind. Department of
Transportation, Bureau of Traffic Safety v. Ferrara, 493 A.2d 154,157 (Pa. Cmwlth.
1985).
It is also well-settled that silence can constitute a refusal. Renwick, 543
Pa. at 131, 669 A.2d at 939 (holding that by closing her eyes, turning her head, and
ignoring the requests, licensee refused to submit to chemical testing); Broadbelt, 903
A.2d at 641. In Broadbelt, the licensee was given approximately twelve minutes to
consider the warnings by the officer and was repeatedly asked to submit to blood
testing. This Court held that the licensee was given a meaningful opportunity to ask
questions and read the warnings and that his silence constituted a refusal. We
reasoned that police officers have no duty to ensure that the licensee understands the
6
1
I
warnings and reaffirmed that anything less than an unqualified, unequivocal assent
constitutes a refusal. Id.
Here, Licensee was given a meaningful opportunity to understand the
warnings in the DL-26 Form and consent to chemical testing. Officer Funk read the
warnings in full to Licensee before she went to the bathroom and then again when she
returned. Officer Funk provided Licensee with an opportunity to read the warnings
and to ask questions, and Licensee never indicated that she did not understand the
warnings. Although Licensee was given only two minutes after she returned from the
bathroom to assent, approximately nine minutes elapsed from when Officer Funk first
read the warnings until his fifth request that Licensee submit to testing. We reaffirm
that police officers are not required to spend time either cajoling an arrestee or
waiting for her to change her mind. Ferrara, 493 A.2d at 156-57. Similar to the
situation in Broadbelt, Licensee was provided with ample opportunities to consent to
chemical testing, but she instead decided to ignore the requests and never made any
indication that she assented to take the test.
Licensee's reliance on Bomba is misplaced. In Bomba, the licensee was
arrested for DUI, and after being administered the warnings on the DL-26 Form, the
licensee consented to a breath test. A booking officer administered a breath test, but
the licensee did not provide a sufficient breath sample. The booking officer informed
the licensee that the failed breath test constituted a refusal, and the officer refused to
offer a second test. After the licensee was informed that she was deemed to have
refused the test, the licensee pleaded with the booking officer for another chance to
take the test. The licensee testified that she was very upset from her arrest and that it
affected her ability to provide a breath sample on the first test. The trial court
credited the licensee's testimony and found that the licensee did not refuse the test
7
because she made a good faith but unsuccessful attempt to provide a breath sample
and immediately requested to take the test again. On appeal, this Court affirmed. We
concluded that the facts as found by the trial court established that the licensee did
not refuse the test and that her conduct did not delay or evidence a deliberate attempt
to undermine the testing process. Id. at 949.
The facts of Bomba are readily distinguishable from the facts of the
present case. Unlike the licensee in Bomba, Licensee here did not manifest any kind
of assent or willingness to take the test at any point during the booking or after any of
Officer Funk's five requests to submit to chemical testing. Licensee argues that, like
the licensee in Bomba, she did not deliberately delay or undermine the testing process
and therefore did not refuse the chemical test. However, in this case, the trial court
specifically found that Licensee's conduct demonstrated a refusal and that her failure
to submit to testing was an attempt to delay the testing process. The trial court's
findings in this regard are supported by the record and render Bomba factually
inapposite.
Citing Bomba, Licensee also argues that because she was still within the
two hour limit for obtaining a chemical sample as required under section 3802 of the
Vehicle Code, Officer Funk should have given her more time to regain her
composure and consent. Licensee suggests that we extend a portion of our reasoning
in Bomba to the present facts and adopt a per se rule that gives arrestees more time to
consent so long as they are within the statutory two-hour limit to perform the
chemical testing. We decline Licensee's invitation to do so. Our decision in Bomba
never adopted such a rule, and this Court has never suggested that an arrestee must be
provided with a specific time span in which to consent to testing. Instead, this Court
has routinely held that a licensee must only be afforded "a meaningful opportunity"
8
t
to assent to testing. Petrocsko, 745 A.2d at 717. As explained above, the trial court
found that Licensee had a meaningful opportunity to assent to testing, never
affirmatively consented to testing, and was purposefully unresponsive to Officer
Funk's requests. Accordingly, we conclude that Bomba is limited by its unique facts
and is inapplicable here.
For the above-stated reasons, we hold that the trial court did not err in
determining the Licensee's silence constituted a refusal under section 1547 of the
Vehicle Code. Licensee does not attempt to negate her refusal by arguing that her
refusal was not knowing or conscious or that she was physically unable to take the
test. Finally, Licensee does not dispute that DOT fulfilled its burden of proof with
respect to the other elements of section 1547.
Accordingly, we affirm.
PA CIA A. McCULLO G udge
9
- t
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly I. Grogg, •
Appellant • c
: No. 24 C.D. 2013 -
V.
•
. -try•^- ...
Commonwealth of Pennsylvania, �' :
Department of Transportation, >y:
Bureau of Driver Licensing 1
ORDER
AND NOW, this 31st day of July, 2013, the December 13, 2012 order
of the Court of Common Pleas of Cumberland County is affirmed.
•
PA CIA A. McCULL•`. udge