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Home My WebLink About13-1066 COMMONWEALTH OF PENNSYLVANIA G�01111)'THE COURT OF COMMON PLEAS CSI MBERLAtAD ,W4S,�tk4AWkUMBERLAND COUNTY, PENNSYLVANIA V NO. 13-1066 ADRIAN MICHAEL CONRAD : APPEAL OF DRIVERS : LICENSE SUSPENSION CERTIFICATE OF SERVICE I, Richard F. Maffett, Jr. , Esquire, do hereby certify the following: 1 . 1 served the Appeal of Driver' s License Suspension in the above matter by placing a true and correct copy of the same in the U. S. Mail, postage prepaid, on February 26, 2013 marked Certified Mail No. 7004 0550 0000 2624 4513, Return Receipt Requested, Restricted Delivery, addressed as follows: Office of Chief Counsel Vehicle and Traffic Law Division Riverfront Office Center, 3rd Floor 1101 S. Front Street Harrisburg, PA 17104-2516 Said Appeal was received on February 28, 2013 as evidenced by the return receipt card attached hereto. 2. 1 served Judge Ebert' s Order dated March 1, 2013 in the above matter by placing a true and correct copy of same in the U. S. Mail, first class, postage prepaid, addressed as follows: Office of Chief Counsel Vehicle and Traffic Law Division Riverfront Office Center, 3rd Floor 1101 S. Front Street Harrisburg, PA 17104-2516 Dated: April 5, 2013 Richard F. Maffetf7, --Jr. , Esq. `I �CofiAplrt�iMart�;;2,ar,�tll�!� -� +lam 4 ff Retrsd derMaeid. X 13 Agent • Pft your fame artd addraw on the reverse ❑ ao than we can retum the a nd to you. B.Received (Rfnoed Mmne) C. Date of D*my meet this oetd to the bwk of the mdplw*, � 48 2 0 1013 or on the*oM if opme pwm ts. D. Is deMvery address dtffererrt item 1? Dyes 1. Article Addressed to: If YES,enter delivery ❑No Pa Dept. of Transportation Office of Chief Counsel Third ,Floor, Riverfront Office Center Harrisburg, PA 17104-2516 3. Service TA* �[Certified Mail ❑Exress Man ❑R"Istered ❑Return Recent for MerchandM ❑Insured Mail ❑C.O.D. d 4. Restricted Delhrery?(Extra Fee) ❑firs 2. A Number (Ra ww dtom sw m koo 7DD4 0550 DDDD 2624 4513 PS Form 3811, 2004 Domestic Return Receipt 102506-W-M-t640 ADRIAN MICHAEL CONRAD, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V 13-1066 CIVIL TERM COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVERS LICENSING, APPEAL OF DRIVERS ' S LICENSE Respondent SUSPENSION IN RE: APPEAL OF DRIVER' S LICENSE SUSPENSION ORDER OF COURT AND NOW, this 31st day of May, 2013, after hearing in the above-captioned matter, IT IS HEREBY ORDERED AND DIRECTED that the defendant shall submit a brief in support of his position on or before June 28, 2013 . The Commonwealth will then be given until July 12, 2013, to file a response brief. By the Court, M. L. Ebert, Jr. , J. Richard F. Maffett, Jr. , Esquire F r the Petitioner Phili M. Bricknell Esquire P q For the Respondent - ZZ --� M i= y :mt f CD =CD ADRIAN MICHAEL CONRAD, IN THE COURT OF COMMON PLEAS Petitioner OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF No. 13-1066 Civil Term DRIVERS LICENSING, Respondent APPEAL OF DRIVER'S LICENSE SUSPENSION IN RE: APPEAL OF DRIVER'S LICENSE SUSPENSION ORDER OF COURT AND NOW, this 23rd day of August, 2013, upon consideration of Petitioner's Appeal of Driver's License Suspension, a hearing held on May 31, 2013, and the briefs filed by the parties; IT IS HEREBY ORDERED AND DIRECTED that Petitioner's operating license is SUSPENDED for a period of one (1) year in accordance with Section 1547(b)(1)(i) of the Vehicle Code. By the Court, M. L. Ebert, Jr., 's Richard F. Maffett, Jr., Esq. r'+ Attorney for Petitioner N d Phillip M. Bricknell, Esq. Attorney for Respondent �, , CD r b� ADRIAN MICHAEL CONRAD, IN THE COURT OF COMMON PLEAS Petitioner OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF No. 13-1066 Civil Term DRIVERS LICENSING, Respondent APPEAL OF DRIVER'S LICENSE SUSPENSION IN RE: APPEAL OF DRIVER'S LICENSE SUSPENSION OPINION AND ORDER OF COURT Ebert, J., August 23, 2013 — Petitioner, Adrian Michael Conrad, has appealed a license suspension imposed on him by the Pennsylvania Department of Transportation, Bureau of Driver Licensing (hereinafter "PennDot"). The suspension was imposed for a violation of Section 1547(b)(1)(i) of the Vehicle Code for Petitioner's refusal to submit to a chemical test of his breath or blood. For the reasons that follow, Petitioner's appeal is denied and his license is suspended for one year. Statement of Facts Petitioner was arrested for Driving under the Influence (hereinafter "DUI") on January 4, 2013.' Petitioner is twenty-six years old, graduated from high school, and is employed with Lawns Unlimited and runs a part-time marketing business.2 Patrolman David Shaffer of the Hampden Township Police Department was on patrol the night of 1 In Re:Appeal of Driver's License Suspension,6, May 31, 2013(hereinafter"N.T. z N.T. 18-19 2 January 4, 2013 when he began to follow Petitioner's vehicle north on the Carlisle Pike.3 Officer Shaffer followed Petitioner for three-quarters of a mile to a mile on the Carlisle Pike, and he noticed that Petitioner "hit the fog lines, was weaving, hit the fog line and the center dividing line in his vehicle".4 When Petitioner approached the intersection of Sporting Hill and Carlisle Pike, he put his turn signal on to turn left.5 While the Petitioner did have the green light, he turned in front of a tractor trailer that was coming southbound such that he barely avoided a collisions Officer Shaffer had to wait for the tractor trailer to go by before he could turn to follow Petitioner onto North Sporting Hill Road which then turns into Good Hope Road.' Officer Shaffer stated that Good Hope Road is very windy, and he continued to follow Petitioner along this road because there was nowhere to pull the vehicle over safely.$ Officer Shaffer again observed Petitioner weaving within his lane of travel.9 After Petitioner made a right onto Creekview Road, Officer Shaffer initiated a traffic stop around 1:52 in the morning.10 While explaining to Petitioner why he stopped him, Officer Shaffer smelled a heavy smell of cigarette smoke and "on top of that [he] still smelled the odor of an alcoholic beverage coming from the inside portion of the vehicle"." After initially stating he did not have anything to drink that night, Petitioner finally admitted that he had three 3 N.T.6 4 N.T.6 5 N.T.7 6 N.T. 7 7 N.T.7 8 N.T.7 9 N.T.7 io N.T.7, 15 ii N.T.8 3 to four beers that evening.12 In addition to the smell of alcohol, Officer Shaffer testified that Petitioner was very argumentative with him. The officer also noticed the Defendant's eyes were bloodshot.13 After making these observations, Officer Shaffer directed Petitioner to exit his vehicle to perform field sobriety tests.14 Officer Shaffer administered the horizontal gaze nystagmus (HGN), the walk and turn, and the one-leg stand test. Petitioner did poorly on these tests which indicated to Officer Shaffer that Petitioner was intoxicated above a .08.15 Officer Shaffer asked Petitioner if he would take a preliminary breath test and Petitioner was argumentative and refused.16 At this point Officer Shaffer placed Petitioner under arrest for DUL Once Petitioner was in the back of the police vehicle, Officer Shaffer read the DL- 26 form to him.18 The DL-26 form informs those arrested for DUI about the consequences of refusing to consent to a chemical test. Petitioner was not asked at that time to provide a response indicating whether he would consent to the chemical testing but was transported to Carlisle Regional Medical Center (hereinafter "Carlisle Hospital") to give him the opportunity to submit to a chemical test.19 It took about fifteen to twenty minutes to transport Petitioner to the Carlisle Hospital.20 There was no conversation between Petitioner and Officer Shaffer on the way to Carlisle Hospital.21 12 N.T.8 13 N.T.9 14 N.T.9 15 N.T.9-10 16 N.T. 10 N.T. 10 '$N.T. 10, 19 19 N.T. 11,20 20 N.T. 11 2'N.T. 11 4 After arriving at Carlisle Hospital, Officer Shaffer again read the DL-26 form word for word to Petitioner.22 Paragraph three of the form reads as follows: If you refuse to submit to chemical tests, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months. In addition, if you refuse to submit to the chemical test and you are convicted of violating Section 3002(a)(1) related to impaired driving of the Vehicle Code, then because of your refusal you will be subject to more severe penalties set forth in Section 3804(c) relating to penalties of the Vehicle Code. These are the same penalties that would be imposed if you were convicted of driving at the highest rate of alcohol, which includes a minimum of 72 consecutive hours in jail and a minimum fine of $1000.00 up to a maximum of five years in jail and a maximum fine of$10,000.00.23 After reading the form, including paragraph three, to Petitioner, Officer Shaffer explained that anything other than a yes would be considered a refusal.24 Petitioner then asked a question regarding the form and Officer Shaffer entertained that question.25 Officer Shaffer then asked Petitioner if he wanted to give a sample.26 Petitioner did not state yes or no but again started asking question S.27 Officer Shaffer could not remember exactly what questions Petitioner was asking him.28 After the questions continued for about five to ten minutes, and Petitioner still had not given an affirmative yes or no, Officer Shaffer then considered Petitioner to have refused chemical testing.29 Overall, approximately forty-five minutes had passed from the time 22 N.T. 12, 20 23 N.T. 16;Officer Shaffer read from Commonwealth Ex. 1,document 2 24 N.T. 12 2s N.T. 12 26 N.T. 12 27 N.T. 12 28 N.T. 13, 17 29 N.T. 12-13, 18 5 Petitioner was arrested until Officer Shaffer determined he had refused the chemical testing.3o Petitioner contends that he did not refuse to provide a sample for chemical testing.31 Petitioner stated that the DL-26 warnings were read to him very quickly.32 After Officer Shaffer was finished reading them, he asked Petitioner if he understood everything.33 At that point Petitioner indicated he did not understand everything and began asking a few questions.34 Petitioner believes he had two questions pertaining to jail time and license suspension.35 Petitioner also believed that he just asked Officer Shaffer if he could re-read part of the form to him and Officer Shaffer "told me that he needed a yes or no answer, and he did not answer any of my questions".36 According to Petitioner, the entire explanation of the DL-26 form and Petitioner's questions took about two minutes.37 Petitioner stated after he had questions, Officer Shaffer told him he would not go over the form again and that if he did not say yes or no he was going to indicate that Petitioner refused chemical testing.38 At this point Officer Shaffer signed the DL-26 form indicating a refusal.39 Petitioner states he was never asked to sign the DL-26 form nor 30 N.T. 14,23 31 N.T.21 32 N.T.20 33 N.T. 20 34 N.T. 20 36 N.T.22 36 N.T. 21 37 N.T. 22 38 N.T. 21 39 N.T. 22 6 did he refuse to sign it.40 Petitioner maintains that he did not refuse the test and that he intended to take the test as long as he would have been properly informed.41 As a result of the deemed refusal, a license suspension of one year was imposed upon Petitioner by PennDot for a violation of Section 1547(b)(1)(i) of the Vehicle Code. Petitioner appeals this license suspension. Discussion Pennsylvania's Chemical Testing law is set forth in Section 1547 of the Vehicle Code. Section 1547 provides in pertinent part: (b) Suspension for refusal. — (1) if any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows: (i) Except as set forth in paragraph (ii), for a period of 12 months. 75 Pa.C.S.A. § 1547(b)(1)(i). In order to sustain a driver's license suspension under Section 1547, PennDot must establish that the licensee: (1) was arrested for DUI by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the 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. Com., Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010); see also Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 40 N.T. 22 41 N.T. 22 7 1999). Once PennDot has met this burden, the burden then shifts to the licensee to establish that the refusal was not knowing or conscious or that the licensee was physically unable to take the test. Kollar, 7 A.3d at 339. Whether the licensee's refusal was knowing and conscious is a factual determination made by the trial court. Id. at 340. The only issue in this appeal is whether Petitioner made a knowing refusal.42 Nevertheless this Court will review all of the elements briefly in order to establish whether PennDot has satisfied its initial burden. The first element PennDot is required to establish is that a police officer had reasonable grounds to believe that Petitioner was operating a vehicle while under the influence of alcohol and was arrested for DUI. Kollar, 7 A.3d at 339. Reasonable grounds exist when a police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that the motorist was operating the vehicle while under the influence of alcohol. Banner, 737 A.2d at 1207. Based on the testimony provided by Officer Shaffer, PennDot has established this element. Officer Shaffer testified that Petitioner was weaving within his lane and almost made a left hand turn into a tractor trailer. He also noted that Petitioner was argumentative with him, admitted to drinking beer, had bloodshot eyes, and smelled of alcohol. Additionally, Petitioner performed poorly on the field sobriety tests. Officer Shaffer certainly had reasonable grounds to believe that Petitioner was operating a motor vehicle while under the influence of alcohol. The second element PennDot must establish is that Petitioner was asked to submit to a chemical test. Kollar, 7 A.3d at 339. Officer Shaffer clearly stated that after 42 See N.T.4 8 he read the DL-26 form for a second time at Carlisle Hospital and Petitioner tried to ask multiple questions, he said to Petitioner "This is it, do you want to take a sample or do you not want to give a sample?".43 PennDot has satisfied the second element of the analysis. The fourth element that PennDot must establish is that the licensee was warned that refusing the chemical test might result in a license suspension. Kollar, 7 A.3d at 339. The licensee must, in fact, be "specifically warned" that the refusal might result in a license suspension. Thoman v. Department of Transportation, Bureau of Driver Licensing, 965 A.2d 385, 388 (Pa. Cmwlth. 2009). The specific warning requires that "a precisely enunciated warning that a driver's license will be revoked must be given." Id. at 388; citing Everhart v. Commonwealth of Pennsylvania, 420 A.2d 13, 15 (Pa. Cmwlth. 1980) (emphasis added). Officer Shaffer testified that he read the DL-26 warnings word for word, including the language "If you refuse to submit to chemical tests, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months" (emphasis added).44 Petitioner was "specifically warned" by a precisely enunciated warning that he would lose his license if he refused the chemical tests. PennDot has established this element. The third, and only disputed, element that PennDot must establish is that Petitioner did, in fact, refuse to submit to chemical testing. Kollar, 7 A.3d at 339. To establish this, PennDot must show "that the licensee was offered a meaningful 43 N.T. 12 44 N.T. 16;Commonwealth Ex. 1,document 2 9 opportunity to comply with Section 1547 of the Code". Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa. Cmwlth. 2006) (internal citations omitted). Once PennDot has established that a licensee was given a meaningful opportunity to comply, the burden shifts to the licensee to show that the refusal was not knowing or conscious or that he or she was physically unable to take the test. Id. Anything less than an unqualified, unequivocal assent to chemical testing constitutes a refusal under section 1547. Id. at 641 (internal citations omitted). Petitioner argues he did not refuse the chemical test and relies on McDonald v. Comm., Dept. of Transp., Bureau of Driver Licensing, which holds that it is not considered a refusal when a licensee delays a decision about submitting to chemical testing because of confusion about his rights and later assents to the testing. McDonald, 708 A.2d 154,156 (Pa. Cmwlth. 1998). The licensee in McDonald, after asking the officer questions, eventually assented to the test and was signing the DL-26 form when the form was taken away from her and her actions deemed a refusal. Id. at 155. The licensee never orally stated whether she would submit to the testing or not. Id. at 155. Based on that analysis, Petitioner argues that because he did not affirmatively refuse to take the test and only asked questions because he was confused, his conduct cannot be considered a refusal. However, Petitioner's reliance on McDonald is misplaced. Rather the Commonwealth Court's recent decision, McKenna v. Com., Dept. of Transp., Bureau of Driver Licensing, is directly on point. In McKenna, the licensee expressed confusion over his rights and asked the officer questions about the penalties of refusing. McKenna, A.3d , 2013 WL 3834870, *1 (Pa. Cmwlth. 2013). The licensee 10 never agreed to submit to the chemical test but continued to ask questions. After about eight minutes the officer deemed licensee's actions to be a refusal. Id. at I. The Commonwealth Court held that the licensee had, in fact, refused because he gave no indication he agreed to the test, did not attempt to sign the DL-26 form, and never agreed to sign the form. Id. at *4. The Court reasoned that after reading the warnings to a licensee, an officer is "not required to spend effort either cajoling the [licensee] or spend time waiting to see if the [licensee] will ultimately change his mind." Id. at *5; quoting Broadbelt, 903 A.2d at 641 n. 7 (quotations and citations omitted). The Court further opined that a police officer has no duty to answer a licensee's questions to the licensee's satisfaction because the DL-26 form does not create confusion and contains sufficient information upon which a licensee can base a decision. Id. at *5. The facts of the instant matter are very similar to McKenna. After being read the DL-26 form, Petitioner began asking Officer Shaffer questions. Officer Shaffer did entertain some of Petitioner's questions, but ultimately after five to ten minutes he deemed Petitioner's continued questioning a refusal. Petitioner never affirmatively or unequivocally stated he assented to the chemical testing. Furthermore, Petitioner never agreed to or attempted to sign the DL-26 form stating he assented to the testing as the licensee in McDonald did. PennDot has established that Petitioner did, in fact, refuse the chemical testing after given a meaningful opportunity to comply. Officer Shaffer was not required to make sure that he answered all of Petitioner's questions or spend time persuading Petitioner to agree to the test. After not receiving an affirmative yes or no after five to 11 ten minutes, Officer Shaffer properly concluded that Petitioner refused the chemical testing. The fact that Petitioner may have been confused about his rights is simply not enough to establish that Petitioner's refusal was not knowing when the Commonwealth Court has found that the DL-26 form does not generate confusion and contains sufficient information to make a decision. Petitioner has not offered any other evidence to support that his refusal was not knowing or conscious Therefore, PennDOT has established all the required elements and its license suspension was proper. The following order will be entered: ORDER OF COURT AND NOW, this 23rd day of August, 2013, upon consideration of Petitioner's Appeal of Driver's License Suspension, a hearing held on May 31, 2013, and the briefs filed by the parties; IT IS HEREBY ORDERED AND DIRECTED that Petitioner's operating license is SUSPENDED for a period of one (1) year in accordance with Section 1547(b)(1)(i) of the Vehicle Code. By the Court, M. L. Ebert, Jr., J Richard F. Maffett, Jr., Esq. Attorney for Petitioner Phillip M. Bricknell, Esq. Attorney for Respondent 12