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WILLIAM JOSIPB PICICRBN, I
Petitioner I
I
V I
I
COMMONWBALTB OF PBNNSYLVANIA I
DIPARTMBNT OF TRANSPORTATION I
IN TBI COURT or COMMON PLBAS 0'
CUMBBRLAND COUNTY, PBNNSYLVANIA
NO. 94-6295 CIVIL TBRM
LICBNSB SUSPBNSION APPEAL
IN RBI LICBN2B SUSPENSION APPBAL
BBFORB 8BBBLY~ P.J.
,~DBR OF COURT
AND NOW, thb 2 I -- day of FEBRUARY, 1995, petitioner'.
lieen.e .uepeneion appeal ie DBNIED.
By the Court,
JJ a.J I~~ . [1 ~
Harold I. sheely~ P.J.
Willi.. T. Tully, lequire
'or the Petitioner _ e..~,", m<-:"'...Q,.J, ..2/;;! I ('IS.
Matthew J. Baeokler, Bequire ,.A,(',
'or Pa. Dept. of Traneportation
I.ld
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fE, Z I 10 33 III '95
i I' EII'QFflIl~
Q' Tt.l: ,"Hi'lHOHCUr.y
CU"&EklANDC~~HTY
PEHHSYlVAH'4
WILLIAM JOSBPH PIClRBN, I
Petitioner I
I
V I
I
COMMONWEALTH OF IllBHHSYLVANIA I
DBPARTMENT or TRANSPORTATION I
IN THE COURT OF COMMON PL!AS or
CUMBERLAND COUNTY, PEHNSYLVAN%A
NO. 94-6295 CIVIL TERM
LICENSE SUSPENSION APPEAL
IN RBI LICBNSB SUSPBNSION APPEAL
BEFOR! SHEELY. P.J.
OPINION AND ORDBR OF COURT
In the present action, petitioner contends the following.
11 The trooper did not have probable cause nor reasonable
grounds to request a blood alcohol test1
21 Petitioner was confused regarding his Miranda warnings
and his right to counse11
31 Petitioner was misled by the Trooper regarding the
possibility of options as to what tests would be requested1 and
41 Petitioner did not refuse to take a breath test.
A hearing was held before this court on February 6, 1995, from
which we made the following findings of fact.
FINDINGS OF FACT
1. On June 18, 1994, at approximately 1130 a.m., Trooper
William C. Palmero of the Pennsylvania State Police responded to
a domestic dispute in the area of Petersburg Road, South
Middleton Township, Cumberland County, Pennsylvania.
2. While speaking with a woman involved in the domestic
dispute, Trooper Palmero observed a vehicle slow down in front of
the residence, back up and pull forward, repeat this action, and
then stop the vehicle in the street in front of the residenoe.
i
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NO. 94-6295 CIVIL TBRH
3. After a.certaining that the woman h. .peaking to did not
recognize thi. vehicle, Troop.r Palmero approached the vehicle to
determine it. purpo.e for .topping.
4. A. Trooper Palmero engaged in conver.ation with the
operator of the vehicle, he detected a .trong ...11 of alcohol
eaanating from the driver'. .ide of the vehicle.
5. Trooper Palmero then reque.ted the operator'. licen.e,
but the operator wa. unable to locate the licen.e.
6. At thl. point, Trooper Palmero a.ked the operator
(petitioner) to .tep out of the vehicle and move to the front of
the vehicle.
7. A. the petitioner did .0, Trooper Palmero noticed that
he wa. having difficulty balancing, wa. .taggering, di.playing a
gen~ral lack of coordination, and had gla..y, blood.hot eye..
8. The petitioner then .ubmitted to an BGN te.t, but
refu.ed to perform any other field .obriety te.t..
9. Trooper Palmero then placed the petitioner under arre.t
for driving under the influence, read him hi. Miranda warning.,
placed him in the back of the patrol car, and told him that he
would be required to take a breath te.t at the .tation.
10. At the .tation, the petitioner wa. read the chemical
te.t warning., and wa. al.o allowed to read them for him..lf.
(C~nwealth'. Rxhibit 1).
11. Petitioner refu..d every effort made by Trooper Palmero
to give him a breath te.t .ven though he wa. made aware n~rou.
2
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NO. 94-6295 CIVIL TBRK
time. that a refu.al would re.ult in hi. licen.e being .u.pended
for one year.
12. Petitioner .tated that he wanted to talk to an
attorney. Be was told again by Trooper Palmero that he did not
have the right to an attorney at this time, but if he gave the
police the name of hi. attorney they would try and contact him.
Petitioner never gave police the name of hi. attorney.
13. Petitioner received notice of hi. .u.pen.ion dated
October 18, 1994, and this appeal followed.
14. Petitioner was not pre.ent at the hearing, but coun.el
agreed to proceed in hie ab.ence, Petitioner was permitted to
te.tify at a later time as to why he was not in attendance at the
hearing.
DISCUSSION
Initially, we must determine whether Trooper Palmero had
probable cau.e or rea.onable grounds to reque.t petitioner to
submit to a blood alcohol test. Section l547(a) of the Vehiole
Code provides, in pertinent partl
Any per.on who drives, operate. or
i. in actual phy.ical control of
the movement of a motor vehicle in
this Commonwealth .hall be deemed
to have given consent to one or
more chemical te.ts of breath,
blood or urine for the purpo.e of
determining the alcoholio content
of blood or the pre.ence of a
controlled .ub.tanoe if a polioe
officer has rea.onable ground. to
believe the per.on to have been
driving, operating, or in actual
phy.ical control of the movement of
3
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':
NO. 94-6295 CIVIL TBRM
a motor vehicle I
(1) while under the influence of
alcohol or a controlled .ub.tance
or bothJ....
75 Pa.C.S.A. 51547(a). Therefore, where a police officer ha.
rea.onable ground. to believe that a per.oll i. driving under the
influence of alcohol, he may require the individual to .ubmit to
a chemical te.t without warrant. "Rea.onable ground. exi.t. if a
rea.onable per.on in the po.ition of the officer, viewing the
fact. and circum.tance. a. they appeared at the trial, could have
concluded that the motori.t had operated the vehicle while under
the influence of alcohol." DeDartmellt of Tran.D9rtation. Burea~
of Driver Licensina v. Dixon, 141 Pa.Commw. 507, 510, 596 A,2d
286, 287 (1991), quoting DeDartment of Tran.Dortation. Bureau of
Driver Licen.ina v. Terreri, 114 Pa.Commw. 208, 210, 538 A.2d
639, 640-41 (1988).
Turning to the fact. of the pre.ent ca.e, it i. clear that
Trooper Palmero wa. authorized, in the cour.e of hi.
inve.tigation of a dome.tic di.pute, to approach petitioner'.
vehicle and a.certain it. purpo.e for .topping in the .treet in
front of thi. re.idence, A. he engaged the petitioner, Trooper
Palmero detected a .trong .mell of alcohol emanating from the
driver'. eide of the vehicle, The petitioner could not locate
hi. licen.e upon reque.t, and after being a.ked to exit the
vehicle, petitioner had difficulty balancing, wa. .taggering, wa.
di.playing a general lack of coordination, and had blood.hot and
gla..y eye.. Prom the.e ob.ervation., Trooper Palmero a.ked
4
NO. 94-6295 CIVIL TBRM
petitioner to .ubmit to a .erie. of field .obriety te.t., but
petitioner refu.ed to perform any te.t exoept for the BGN te.t.
We believe it i. olear from the.e faot. that a rea.onable
per.on in the po.ition of Trooper Palmero oould have conoluded
that petioner wa. operating hi. vehicle while under the influenoe
of aloohol. Therefore, the officer had rea.onable ground. to
requ..t a blood alcohol te.t.
The .econd i..ue rai.ed in thi. appeal i. whether police
.ati.fied th~ requirement. .et forth in Commonwealth, Dent. of
Trananortation. Bureau of Traffic Safetv v. O'Connell, 521 Pa.
2.2, 555 A.2d 873 (1989), and the line of oa.e. whioh followed.
Mo.t recently, the Penn.ylvania Supreme Court .tatedl
Bence, we hold that a proper
O'Connell warning mu.t include the
following information I fir.t, a
motori.t mu.t be informed that hi.
driving privilege. will be
.u.pended for one year if he
refu.e. ohemical te.tingJ .econd,
the motori.t mu.t be informed that
hi. Miranda right. do not apply to
ohemical te.ting. Thi. i. by no
..an. a mantra that the polica mu.t
recite like automaton.. The
.ubjact matter, however, .hould be
covered in warning. i..ued by the
police.
n.D.r~..nt of Tran.nortation. Bureau of Driver Lia.n.i~a v.
Inaram, ____ Pa. ____, 6.8 A,2d 285, 29.-95 (199.)(footnote
oa!tted).
The fact. of the pre.ent ca.e indicate that petitioner wa.
read hi. Miranda warning. at the time of hi. arre.t, Ono. baok
5
BO. g4-62gS CIVIL TBRK
at the .tation, Troop.r Palmero info~d p.titioner of the
following I
1. Pl.... b. advi..d that you are
now und.r .rr..t for driving under
the influ.nce of alcohol or a
aontrolled .ub.tanc. pur.uant to
..ction 3731 of the Vehicle Code.
2. I am reque.ting that you .ubmit
to a chemic.l te.t of breath.
(breath, blood or urine. Officer
ohoo.e. the ch.mioal te.t).
3. It i. my duty, .e a polioe
officer, to inform you that if you
refu.e to .ubmit to the chamlcal
te.t your operating privilege will
b. .u.pended for a period of one
year.
4.a) The oon.titutional right. you
have a. a criminal defendant,
oommonly known a. the Miranda
Right., including the right to
.peak with a lawyer and the right
to remain .ilent, apply only to
criminal pro.ecution. and do not
apply to the chemical te.ting
procedure under Penn.ylvania'.
Implied Con.ent Law, which i. a
civil, not a criminal proceeding.
b) You have no right to .peak to a
lawyer, or .nyone el.e, before
taking the chemical te.t reque.ted
by .th. police offic.r nor do you
have . right to remain .ilent when
..k.d by the police officer to
.ubmit to the chemical te.t.
Unle.. you .gree to .ubmit to the
te.t required by the police officer
your conduct will b. deemed to be
refu.al .nd your operating
privilege will be .u.pended for one
ye.r.
c) Your refu..l to .ubmlt to
ohemic.l t..ting under the Implied
Con.ent L.w may be introduced into
evidence in . criminal pro.ecution
6
NO. 94-6295 CIVIL TI~
for driving while under the
influence of alcohol or a
controlled .ub.tance.
... Commonwealth'. Ixhibit 1. In addition to Trooper Palmero
reading him thi. form .everal time., petitioner wa. al.o given an
opportunity to read thi. form for him.elf. It i. clear that
the.e warning. .ati.fy the requirement. .et forth in Inaram,
.unra.
Petitioner argue., however, that he wa. confu.ed becau.e
Trooper Palmero offered to call an attorney of petitioner'.
choic.. We find thi. argument to be without merit. Trooper
ialmero repeatedly told the petitioner that he did not have a
right to .peak with an attorney, but that Trooper Palmero would
call hi. attorney for him in .pite of thi. fact if petitioner
gave him hi. name. Petitioner never .upplied the name of hi.
attorney and continued to refu.e to .ubmit to the breath te.t.
It wa. at thi. point that Trooper Palmero con.idered petitioner'.
action. to be a refu.al to .ubmit to the reque.ted chemical te.t.
Thu., ba.ed on the relevant fact., we believe it i. clear that
defendant did in fact refu.e to take the breath te.t. W. mu.t,
therefore, deny petitioner'. appeal.
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NO. 94-&295 CIVIL TlaM
CRD.. O. COU1lT
AlID NOW, thb
.f
J.. I .s day of rIBRUARY, 1995, petitionu'.
lia.n.e .u.pen.ion appeal i. DBNIIO.
By the Court,
1.1 Harold B. Sh..lv
aarold I. Sheely, P.J.
William T. Tully, I.quire
'or the Petitioner
Matthew J. Haeckler, I.quire
'or Pe. Dept. of Tranaportation
.ald
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,""''''''0''' WO'l 07 1994 t:wW;!"A',=I~,1":'l1
MANCI(~, WAGNER, HERSIl-iEY & TUL.l '11 =~~',5J1tr'
..
._--..~
.,
WILLIAM JOS'PH PICIIUDI.
Petitioner
1M TIll COURT 0' COMMON PLIIA8
CUMBmu..AJlD COUNTY, plllOtSYLVAIIlA
v.
NO. q LJ -' (Q ~':r-7 ,5
~ ;:r~
COMMOMWDLTH 0' P....UIYLVANlA,
DIPARTMINT 0' TIWlSPORTATION.
Raapondent.
LICDSI SUSPIDfSIOII APPDL
ORDRR OJ' COURT
AND NOW, t.hiaL'ifMday of NrJv~mI,r/l, 1994, upon PeUt.ion of Wlllialll
Joaeph Pickren, a hearinJ ia aet. on the Licenae Suapenaion Appeal for t.he IiLtI1
day of [jJ~W"tL 'I ,1..lJ.,5I..t / :.1 () o'clock jP .m. in Courtroom Number L,
Cumberland County Courthouae, Front and Market. Streeta, Harrlabur., Dauphin
Count7', Pennaylvanla, all proceed!n.a to Btay meanwhile.
NoUc. of aald hearin' ahall be given by peUUoner'a counael to the
Department of Tranaportation at leaat thirty (30) daya prior to the date of aald
hearin..
Purauant to Section 11S1S0(b) of the Pennaylvania Motor Vehicle Code,
Petitioner'. appeal ahall act .a an automaUc Buperaedeu, and Petitioner'a
operatinll privilellea Bhall not be auapended pending a final determination in thia
_tter.
BY THE COURT:
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WILLIAM JOSIPH PICIRmI,
Petitioner
Ul THB COURT or COMMON PLIlA8
l CUMBBRLAND COUNTY, PINIISYLVANIA
.
.
v.
NO.
COMMONWBALTH or PBNMSYLVANIA, l
DIPARTMINT or TRANSPORTATION, : LICINSE SUSPBNSION APPBAL
H..pondent
LIC8NSI SUSPBNSION APPIilAL
AND NOW, comea Petitioner, William Joaeph Pickren, by and throu,h hla
attQrneya, Mancke, Wagner, Herehey a. Tully, who reepectfully aver the followin,:
1. Your Petitioner, Wl1\iAlII Joeeph Pickren, Ie an adult Individual with
a realdence addreee of Lot 175, Bonneybrook Road, Carllale. Cumberland County.
Penneylvanla 17013.
2. Reepondent, Penneylvanla Department of Traneportation. Bureau 01
Driver Llcenaln" haa a mailing addr..e of Traneportation a. Safety Buildln,.
Harrlebur,. Dauphin County, Penneylvanla 17120.
3, On June 18. 1994, at. approximately 1:30 a.m., Petitioner w.. arreated
by Trooper W.C. Palmero of the Penneylvanla State Pollee, In the area of State
Route 174 in South Middleton Townahip, Cumberland County, Pennaylvanla.
4, Ae a realllt of the arreat. 1'rooper Palmero apparently aent a notice
01 retuBaI to the Department of Tranaportation.
5. Petitioner received a copy of a auapenaion notice dated OctQber 18.
1994, advlain. him that he will be auapended from hie drlvln, prlvUe,ea effective
November 22, 1994, aa a reault of the alle,ed refuaal on June 18, 1994. A cop)'
of aald notice letter Ie attached hereto and made a part hereof aa Exhibit "A."
6. Said refuaal Ie Improper and llle,aI for the follow In, reaeona:
a. Petitioner did not refuee to take a breath teat:
b. Petitioner wae confu8ed re,ardln. hie rl,hta to counael:
c. The Trooper did not. have probable cau.e nor reuonable
,round. to reque.t a blood alcohol te.t.;
d. Petitioner wa. confu.ed rellardlnll hi. Miranda warnlnll' when
t.hey were provided by t.he Trooper, .. well .. by t.he
Trooper'. Inlt.lally aareelnll to allow Mr. Pickren to have an
at.torney, and then refu.lnll to allow him an at.torney;
e. Petlt.loner wa. misled by t.he Trooper rellardln, t.he po..lbtlit.y
of options as to what. test.. would be reque.ted;
f. The .u.pen.lon Is Invalid under current. .t.at.utory and c...
law In I'ennsylvanla.
WHEREFORE, Petitioner respect.fully reque.t.. t.hl. Honorable Court. to enter
Iln order 01 .uper.edea. whereby the suapen.ion, .. propo.ed In Exhibit. "A",
would be nellated unt.1l such time a. hearlnll on t.hl. case can be heard.
Respectfully Submlt.ted,
MANCKE, WAGNER, HERSHEY, .. TULLY
At.torney. for Petitioner
Date;
"'3..;...1
By:
~.A<-4!91?" ~
William T. Tully, E.qu
2233 Nort.h Front. St.reet
Harri.bur., PA 17110
\7171 234-70111
Supreme Court. I.D. '36410
,r
WILLIAM .JOS8PH PlcKIdII,
PetitiDDer
III ftl COURT 01' COMMOJI PLIAB
CUMBULAND COUlrrY, p.....8YLVAMlA
v.
NO.
coIoIOlnIULTH or PIIIIM8YLVAMlA,
DIPARTMDT or TRAN8PORTATION, LICDSI SUSPD810N APPUL
a.aponclent :
C8RTII'ICATIiI OJ' 81UlVlCI
1 William T. Tully, Eequlre, of the law firm of Mancke, Wa.ner, Herehe,. 30
Tully, hereby certify that 1 am thie day aervin. a COpy of the fore.oln'
document to the attorneye or partiee of record In the manner Indicated beloW,
whioh earvlae eauenes the requirements of the Pennsylvania Rulse of Civll
procedure, by depoeitin, a copy of the eame In the United Statee Mail, poeta.e
prepaid, at Harrisburll, Pennsylvania, at the address listed bslow:
Office of Chief Counsel
Penneylvanla Department of Transportation
103 Transportation and Safety Buildln'
Harrieburll, PA 17120
I"
Date:
/1. -3,q..!
~l.-o. 'A:.L'-o.rr-~
WUUuI T. Tull,., leq.
VERIFICATION
I verit,. that the .tatement. made in the tore,oin, document are true
and correct. I undentand that fal.e .tatement. herein are made aubject to
the penaltie. of III Pa.C.$,A. Section 4904, relatin, to un.worn tal.if1cation to
authoritie..
/~~~-
Date:
,
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----
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Burlau of Drivlr Licenling
Harrisburg, PA 17123
OCTOBER 18, 1994
_._--
----
WILLIA" JOSEPH PICKREN
LOT 1 75 BONNVBROOK RD
,4aa1&4140000S3 001
10/11/1"4
a17aaS'..
04/0'/1'''4
CARLISLE PA
17013
Dear Motorist I
As a result of your violation of Slction 1547 of ~hl Ve-
hicll COdl, CHEMICAL TEST REFUSAL on 0'/18/1994, your driving
privilege is bling SUSPENDED for a plriod of 1 VEAR(S).
In order to complY with this unction you Ire rlquired
to return any currlnt drivlr's licensl, llarnlr's per.it
and/or tlmporlry drivlr's liclnsl (c..lra card) in your pos-
....ion no latlr than thl Iffective dati listed. It you
cannot complY wi th thl rlQuirl.lnts ltatld above, you arl
rlQuirld to submit a DL1'lC Form or . llttlr acknowlldging
thl sanction of your driving privilegl. Fdlurl to comply
with this noticl shall rlsult in this Burlau rlflrring this
mattlr to thl Plnnsylvania Statl Police for proslcution undlr
SECTION 1571(a)(4) of thl Vlhicll Coda.
Crldit will not blgin until III currlnt drivlr's licln.1
product(s), the Dll'lC Form, or a lettlr acknowlldging your
sanction is rlclivld in this Burlau.
When thl dlPart.lnt receives your license or acknowl-
Idgl.lnt, it will Sind you a rlceipt. If you do not recaivI
this reclipt within 15 days contlct thl dlpart.ent h.l-
diltely, Otherwisl, you may not bl given credit toward serv-
ing this sanction.
Efflctive Dati of SUSPlnsion. 11/22/1994, 12.01 I,m.
.............~......................................................
IWARNING. If you are convicted for driving while your license is I
'suIPendld, thl Plnaltill will be. not llls than 90 daYI imprilon-I
Imlnt and a .1,000 finl and an additional 1 Ylar sUIPlnsion. I
....................................................................
Pllasl S'I thl Inclolld appliCltion for rlstoration fll
inforlut ion.
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IB TB. 'U.RBM. COOKT or .IHN'YLVAHIA
..'TlaN DIITRICT
COIOlOIIWDL'l'II or 'DIIIYLVAIIU,
D.,UTK.n 01' TRAIf..OR'l'ATIOB,
.OKIAU 0' D.IVI. LIC.BIIBO,
App.Uut
v.
DOUGLAS JOHN INGRAM,
App.llee
Bo. 1 ...t.~D Di.t~iat
~ppe.l Doak.t \..J
App..l f~o. tIl. O~..~ of
Co..oDv..ltb Court .Dt.~.d 3Ulf
., Uta at Bo. 1771 C.D. UU
affiraiD~ tb. O~d.~ of Julf 17,
1..1 of tb. Civil Divi.ioD, of
tll. Cou~t of CO"OD '1...,
Alle9beny CauDty, .t Bo. IA 134'
of UU
14' ... Ca.... 170,
'la A.ad .34 (l..a)
UGUIDI I.pt.ab.~ al, 1..3
.................................................................
IB TB. .U.RIMI COOKT or .....VLVAHIA
IAITIRN DIITRICT
COIOlONWIALTH 0' '.HNIYLVANIA,
D..UTKINT OJ' TRAJr8PORTA'1'ION,
loalAV OJ' O.IVIR LICINIIBO,
App.Uut
v.
TBIODO.. .. I'IAI8, IV,
Appolle.
Na. a la.t.~D Di.t~iot
Appe.l Dook.t l'.J
Appe.l f~o. tb. O~d.~ of
Co..oDv.altb Court 'Dt.~.d JUD.
17, l..a at >>C. la7. C.D. 1..1
afflralDv tb. O~.u of I.pte.llu
ai, 1..1 of tb. COurt of C.....
'le.., Civil Divi.io., ~..t.~
Couaty, at ... .1-0....
14. 'a. c.Yltb '3',
'11 A.ad 37. (l..a)
ARGUIOI '.ptoab.~ 11, 1"3
JUl. JV"UCI KONTbURO
OPlRIOR
O'CIDIDI .."..... 13, 1...
Th. i..ue rai.ed in the.. consolidat.d app..la 1. vh.th.~
the police satistied the warninq requirement. ..t out by th1s
t
I
!tj
o
Ow
.
,
Court in eo..onw..lth. D.~~. ot Tran.n.. Bur.au ot Traffio sat.ty
v. o'Connell, 521 'a, 242, 555 A.2d 173 (1989), even though the
pOlice tailed to explain to a licen.ee the reasqn why hi.
.
c::onstitutional Miranda1 riqhts areinappUc::able to che.ical
testin9 pursuant to the implied con.ent provision of the Motor
Vehicle Code, 75 'a. C.S, S 1547 (a) (1982).2 We hold tMt.,tbe
polioe n.ed not clarify for the motorist the di.tinction bet~..n
crhdnal proceedinqs, wh.re the riqht to couns.l applie., 'and
c::ivil proc.edinqa, where it doe. not; accorcUnqly, va atUn.
In O'Connell, the Pennaylvania Cepartment of Transportation
(PennOOT) imposed a one year suspension of O'Connell's .otor
1
Miranda v, Arizona, 384 U,8. 436 (19Cl6).
2 Section 1547(a) of the V.hicle Code contain. a provi.ion
c::ommonly referred to a. the Impli.d Consent Law, 75 Pa.e.'. . 1547
(a) (1987). It state.:
Chemical Testinq to determine amounts of alcohol or
controlled substance
(a) G.neral RUle.--Any person who drive., operate.
or is in actual phyeical c::ontrol of the .ov...nt of a
.otor vehiole in thi. Co..onvealth .hall be d....4 to
have given con.ent to one or .ore ch..ical te.t. ot
breath, blood or urine for the purpo.e of deten1ninv the
alcoholic:: cont.nt of blood or the pre.enee ot a
controlled sub.tance if a police officer ha. r...onable
ground. to beUev. the person to have been c1riviftlJ,
operatinq or in actual physical control ot the aove.ent
of a aotor vehicle:
(1) while und.r the influence of alcohol or a
controlled substance or both; or
(2) which va. involved in an accident in which
the operator or pas.eng.r of any v.hicl. involved or a
ped..trian r.quired treatment at a ..dic81 facUity 01'
was killed.
J-l74-ltU
fAG, 2
.
.
vehicle operator'a licanae tor hi. retuaal to take a breathaly.er
teat a. required by Section 1547(b) ot the Motor Vehicle Code, 75
Pa.C.S. 11547(b).3 O'Connell v.a involved in an automobile
.
..
accident in Montgom.ry County. Polic. at the ac.n. ot the
accid.nt notic.d the atronq ...11 ot alcohol on O'Conn.ll'a
breath and conduct.d a ti.ld aobriety t..t. Upon O'Conn.ll'.
tailur. ot thia t.at, the otticer arr.at.d hi. tor driVing und.r
the intluence or alcohol, O'Connell waa immediately adviaed ot
hia Miranda rights and taken to the police atation where he waa
again advia.d or his Miranda rightl in written tora. Paragraph 6
ot the torm asked, "Do you want to talk to a lawy.r at thia ti.e
or have . lawyer with you while we a.k you qu..tion.?- At tir.t
3 Under Saction 1547 (b) ot the V.hicl. Code . penon who
r.tuae. to take a s.ction 1547(a) chamica1 t..t .utt.r. a tve1v.
month au.penaion ot hia operating privU.g... 75 Pa. C.,. S
1547(b) (1987). Thia lection reads.. tollow.:
(b) Su.p.naion tor retuaa1--
(1) It any per.on placid und.r arr.at tor a violation of
aection 3731 (ralaUlICJ to driVing und.r influence of
alcohol or controll.d aub.t.nce 11 reque.t.d to .ublit to
ch..ical tilting and retu.ed to do ao, the te.tint .baU
not be conducted but upon notice by the police officer,
the depart..nt ahal1 aUlpend the op.rating privilege of
the peraon tor a p.riod of 12 month.,
(2) It ahall be tha duty of the police otficer to inform
th. p.raon that the per.on'. operating privi1.ge vi11 be
au.pend.d upon retu.al to .ubmit to ch..ic.1 t..ting.
(3) Any panon who.e operating privUeg. 11 .u.panel.d
under the provi.ion. ot thi. a.ction .h.11 h.v. th. ....
right of app.al .a provided tor in c.... of au.pen.ion
for other realonl.
I.
J-l74-UU
PAOI 3
.~
.
.
0' Connell an.wered "No", but later he changed hi. an.wer to
"Ye.. ·
Sub..quently, O'Connell was a.ked to .ubllli~ to a
breathalyzer te.t, O'Connell rafu.ed and clai.ed that he retu.ed
becau.e he had not been allowed to .peak with an attorney. The
otticer te.titied that O'Connell gave no rea.on tor hi. retu.al,
that he wa. perlllitted to call hi. lawyer, and that tOllowinq this
call, O'Connell wa. willinq to submit to the ta.t. The otticer
would not admini.ter the tast, however, becau.e he h~d been
unable to personally observe O'Connell tor the precedin9 thirty-
tive to torty-tive minutes; there tore, a retu.al wa. noted.
A retu.al wa. reported to 'ennDOT which iapo.ed the
.andatory one year licen.e .u.pen.ion pur.uant to 75 'a.c... .
1547(b). O'Connell appealed to the Court ot Co..on 'lea. which
accepted hi. te.timony a. credible, and held that O'Connell'.
retusal was based upon the mi.taken beliet that he had the riqh~
to .peak with an attorney prior to SUblllittinq to the breathaly.er
te.t. Theretore, the court held that O'Connell could no~ haVe
.ade a knowing retu.al becau.e hi. deci.ion va. tounded upon an
understandinq ot a right which does not exi.~ at lav.
'ennDOT appealed to the Commonwealth Court and ar9Qed tha~
in.utticient evidence exi.ted to .upport the trial court'.
determination, The Commonwealth Court aqreed with PennDOT and
.
,
rever.ed the trial court. Commonwealth. D.D.rt"n~ at
Tran.aortation, Bureau ot Traffic Safetv v, O'Connell, It 'a.
Cmwlth. 410, 513 A,2d 1083 (1986), In addition, the Co..onw.alth
.J-l74-J,tU
fAOB 4
.
.
Court turther detined its prior holdinqs on chemical te.tinq, and
pronounced that the police" duty to intorm an arre.tee that he
do.. not have the ri1h~ to .p.ak with an attorney in conjunction
,
with .ub.ittinq to the breathalyzer test, obtain. "only wh.re the
arrestee re.pond. to a request that he take the te'~ with an
inquiry reqardinq whether he may con.ult with .o..one betore
makinq a decision," ~.
We held that there va. evidence in the record to .upport
O'Connell's position that he was misled into thinkinq that h. had
a riqht to speak to hi, attorney be for. takinq the breathalyzer
test, Accordinqly, we aftirmed the trial court's tindinq..
Mor.over, We explored O'Connell'. contention that the entire
controversy resulted from the reque.t to take the br.athaly..r
test immediately followinq Miranda questioninq. Mr. Justic.
Papadako. wrote in the majority opinion:
Th. problem in this ca.e and many siailar c.... th.t
have arisen, is that the.e reque.ts to take
breathalyzer te.ts take place as part of the
inve.tiqation conducted by police in req.rds to a drunk
drivinq charqe which i. cri.inal in n.tur.. Th. polic.
proceed with the Miranda warninq. and at so.. point
(u.ually when the driver a.k. to .e. hi. lawyer) .top
que.tioninq and abruptly ch.nq. "hat.- .nd ..k the
driv.r to .~it to the bre.thalyz.r te.t. It the
.rre.t.. he.it.te. and .tt..pt. to exerci.. hi. Miranda
riqht by a.king for . l.wy.r or ..kinq to aak. . phone
c.ll, . refu..l i. r.corded,
O'Connell, 521 Pa. at 251, 555 A.2d at 877.
Th.refore, v. held that becau.e thl. .itu.tion 1. repl.te
with traps tor the untrained arre.tee who c.nnot recognize the
difference. between civil and criminal inve.tiqation., the polic.
J-114-1"3
'AO. ,
must instruct the arrestee who asks to speak with an attorney
that hi. con.titutional right to counsel is inapplicable to
breathalYler te.ts. We placed this burden upon~he police
~
, .
I .
~t
bacau.e it i. their conduct that i. the source of the confu.ion.
We clarified our holding in O'Connell in Commonwealth v.
McFadden, 522 Pa. 100, 559 A,2d 924 (1989). In McFadden, the
motorist was pulled over atter he uled hi. right turn .ignal to
indicate that he was making a lett turn. The otticer Imelled
. alcohol on McFadden'. breath, and as a re.ult, conducted a tield
.obriaty te.t which McFadden tailed. The officer placed hi.
under arre.t and read McFadden Miranda warning.. The motori.t
wa. then taken to the police station to take a breathaly.er te.t.
Upon arrival at the police station, McFadden wa. qiven Mira~da
warning. in writing. McFadden refu.ed to .u~it to the
breathalyzer te.t and asked to make a telephone call. The police
granted hi. reque.t; however, atter the call, Mcradden baca.e
belligerent and was placed in a jail cell overnight. A refu.al
was recorded,
On appeal fro. hi. licen.e .u.pen.ion, Mcradden arvued that
he did not .ake a knowing and conscious refu.al becau.. b. wa.
not told that Miranda did not apply to the breatbalYler te.t.
~hi. arqu.ent was rejected by both the Court of Co.-on 'lea. and
the Commonwealth Court. We held that our deoi.ion in O'Connell
controlled and that the police did not meet the require.ent.
outlined in that ca.e, namely, that upon Mcradden'. reque.t to
make a telephone call the police should have intormed hi. that he
3-114-1"3
'AO. .
"
did not have the right to canter with someone prior to decidinq
whether to .ub.it to a breathalyzsr t.st. U.
If. con~inu.d to ret In. our dlcbion. in O'Connell and
..,
Meradd.n in COlUlonw..lth v. Dantor~h, !530 Pa. 327, 60. A.2d 1044
(1992), In Dantorth, the motorist wa. arrlstld tor drivin9 undlr
thl intlulnce ot alcohol and advi.ed ot his Miranda riqhts. HI
was subsequently taken to the pOlice station and a.ked to sub. it
to a breathalyzlr tsst. Dantorth rltused. Mor,ovlr, he attirmld
in writing that he did not wish to waive his Miranda riqhts,
althou9h he did not take attirmative action to .xecut. those
rights.
PennDOT suspendld Dantorth's lic.ns. and he appaal.d to the
Court at Common Plea. ot Alllgheny County. That court dl..i....
the appeal, and the Commonwealth Court attiraad. Dantorth argued
b.tor. this Court that his rltusal wa. not knowln9 01' conscious
becaus. the police had tailed to intora hi. that he did not have
a right to speak to An attorney in conjunction with the reque.t
to submit to chemical t..tlnq.
W. agreed with Dantorth, and h.ld that the e~nvaalth
Court errld when it requlred the occurr.nc. ot ~.. evant. ~o
triqger O'Cannell warnineJsl 1) Miranda warnlft9. w.r. r.ad to the
motorl.tl 2) the motori.t muat show contu.ion rl9ardlft9 the
application ot Miranda rights to chemical t..tln91 and 3) the
motorist must ask to speak with an attorney. We held that the
delivery ot O'Connell warninqs is not continqent upon a display
at contusion by the motorist. ~. In the .ajority opinlon Mr.
07-1,.-1113
fAa.7
'!
,'i
!
,
.
Justice Cappy wrote: II (a dr i ver J may reasonably believe that he
is entitled to counsel prior to submitting to chemical testing
and refu.e on this ba.is without exhibiting confu.ion or
"
'.
specifically requesting coun.el.- . Danforth, 530 'a. It 332-333,
608 A.2d at 1046,
We specifically held that when the police give a motorist
his Miranda warnings and then tollow the warnings with a request
to submit to chemical testing, the otticer must provide the
motorist with O'Connell warnings so he may make a knowing and
conscious decision whether to submit to che.ical testing.
We found that this rule provided certainty in connection with a
tundamental right without being burdensome to lav entorce.ent.
~. Theretore, we reversed the Commonwealth Court which attl~
PennDOT'. suspension ot Danforth's driving privilege.
Mo.t recently, we examined the necessity of O'Connell
warning. when the motorist t>-T ~HIlJ ~ n r ........d ot hi. Miranda
rights, In addition, we looked at the adequacy of the warning
given, In ~onwealth. Dent. ot Trans~, v, McCann, 533 'a. 45',
626 A,2d 92 (1993), the motorist was arre.ted for driVing under
the influence and wa. a.ked to su~it to cbe.ical te.ti",.
McCann refu.ed, and a. a re.ult, bis driver'. licen.e v..
suspended. A. part ot hi. retu.al, McCann ..ked to speak with .n
attorney. In response to that reque.t, the police officer
informed McCann that he was not permitted to speak with a lawyer.
The officer did not tell McCann that the right to speak vith an
,7-174-19U
taG. .
.
attorn.y was inapplicable to chemical t.stinq und.r the Motor
V.hicle Code.
The Co..onvealth Court .ttirmed an order ot the Court ot
...
Common Pl.a. ot All.qh.ny county upholdinq . on. ye.r .u.pension.
Wh.n we initi.lly con.idered McCann'a app..l this Court v..
equ.lly divid.d; ther.tor., w. is.ued a per curia. ord.r ke.pinq
the Commonwealth Court's d.cision in .tt.ct, Commonwealth
Department of TranSDortation v, MCCann, 529 fa, 444, 604 A.2d
1027 (1992), Upon an application for reconsideration, w.
r..xamin.d this app.al and r.vers.d the Commonw.alth Court'.
d.c18ion.
In McCann, fennOOT arqu.d th.t O'Connell warning. are only
n.c....ry wh.re police have provid.d Miranda warninq. becau.. it
i. the r.citation ot those warninqs which l..d. to tha driver'.
contusion about his rights, w. r.j.ct.d this arqu..nt .nd held
that in light ot our p.r curiam r.ver..l ot the Co..onwe.lth
Court'. decision in Mihalaki v. Commonwealth, OeDart.ent ot
TranSDortat1on, 525 P.. 332, 580 A,2d 313 (1990), rav'CJ, 123 Pa.
ClIIwlth. 353, 553 A.2d 1042 (1919), O'Connell .u.t be ..t.i.fied
when a 1II0tori.t Ilk. to con.ult vith .ollleone req.rdle.. of
wh.th.r Miranda warnings had be.n qiv.n.4
· In Co..onw.alth. CeDartment ot Tr.nsDertation. Bur.au ot
Traffic Satetv v, Mihallki, 123 P.. CIIvlth. 353, 553 A.2d 1042
(1989), the Commonwe.lth Court uph.ld . one year .uspension of the
motori.t's driver'. licen.e tor retu..l to subait to ch..ieal
t..tinq. Mihalaki vas involved in an .utomobile .ccident, atter
which he was transported to the hospital .nd questioned by police
about the accident. The offic.r sm.ll.d alcohol on Mihal.ki'.
breath and arre.ted him for drivinq while intoxicat.d. The oUicer
J-174-UU
fAG. t
~.
.
,
Moreover, in McCarn we held that the warning issued by the
police va. inadequ.te under O'Connell. We held th.t it i.
in.ufficient to m.rely t.ll a motori.t th.t he m.y not contact
'.
'.
hi. attorney without turther .xplanation. McC.nn, 533 Pa. .t 460,
626 A,2d at 94.
While the O'Connell lin. ot c.... h.. tirmly ..t.bli.h.d the
occ.siona where w.rnings about the applicability ot the Mir.nda
right to counsel are necessary: 1) when Miranda w.rnings pr.cede
a request to submit to chemical testing, .nd 2) wh.n . motori.t
aska to conault with someone prior to deciding to take the teat,
this Court granted allocatur in the two casea ~ judice to
.xamin. what constitutes an adequate O'Conn.ll w.rning, We now
turn to the instant .pp.als,
th.n asked Mihalaki to submit to a blood t.st, Mihalaki responded
that he waa afraid ot n.edles, .nd th.t he did not want to take the
teat until he had spoken with his .ttorney. Th. officer warned
Mihalaki that hi. licena. would be sUlpand.d tor a pariod of on.
y.ar should he continua to r.tu.e to suJ:lllit to the test. TIla
ottic.r did allow Mihalaki to try to contact hi. lawyer; hovevar,
h. was unaucce..tul. The motorist maintain.d that b. would
continu. to wli t for hie attorney betore he would agr.e to taJle the
teat, The otficer stat.d that h. could no longer wait and let~ tha
hospital. Mih.laki did eventually contact hi. attorney and h. did
submit to the t..t,
In lI.thalaki, the trial court h.ld that once the driver
requested to sp.ak with . lawyer, the otUc.r waa required to
intor. hi. that he h.s no .uch right under tha Motor Vehicle Cod..
Tha Couonvaalth Court reversed and h.ld that th.re i. no autoaatic
duty to inform every arre.te. that the Miranda right to coun..l
doe. not apply to chemical t.ating. That duty only arile. when
the .otoriat inquires about whether h. .ay .p.ak witb ao.eon.
betore deciding to .ubmit to chemical teating, rurth.~ore, the
Co_onwealth Court emphasized that Mihalaki had not been r.ad
Miranda warning., nor had he displ.yed contuaion over hi. right to
consult with counsel,
J-l74-UU
'AGI 10
','
PennCOT, appellant, appealed to this Court from two
Commonwealth Court order. and opinions. The first decision
PennDOT challenges i. Commonwealth. Department of Tranloortation
.,
.
v. Inar.llD, 149 Pa. CIIIwlth. 170, 61a A.2d 634 (1992), In that
case the Commonwealth Court affirmed the order of the Court of
Common Plea. of Allegheny County reversing the one year
.uspension of appellee Ingram'. driver's licen.e for t.iling to
submit to an intoxaly~er test, as required by section 1547 of the
Motor Vehicle Code, 75 Pa. C.S. S 1547 (1982). In the second
case, Decartment of Transcortation. Bureau of Driver Licensina v,
!
"
Frain, 148 Pa. Cmwlth, 636, 611 A.2d 378 (1992), the Commonwealth
Court affirmed the Court of Common Ple.s of Che.ter County'.
reversal of the one year suspension of appellee Frain's licen.e
under section 1547,
No. l Western District Appeal Docket 1993
In Inaram, Officer Thomas West (West] of the Ver.aille.
Borough Police Oepartment was dispatched to the .cene ot an
accident on March 16, 1991. Upon his arrival at the .cene, only
one of the two vehicle. involved in the accident re..ined. The
driver ot the remaining vehicle and another witne.. to the
accident described for We.t the other vehicle involved in the
colli.ionl a black sporte car with Florida licen.. plate..
Moreover, the other driver and the witne.. de.cribed the driver
ot the black car as po.sibly being "Oriental." Because We.t i.
tamiliar with mo.t ot the re.idents ot Ver.aille., this
description of the vehicle and the driver indicated to West that
J-174-UU
fAG. 11
Ingram had b..n the driver involv.d in the accid.nt. W.st
.ub..qu.ntly proc..d.d in the dir.ction that the witn..... had
.hown the flee1ng car wa. trav.lling, and .pott.d the v.hicl.
."
h.adinq north on Sacond Str..t. Whil. attemptinq to catch
Ingram'. vehicle, w..t turther noticed that a barricade h. had
p....d a few minute. .arlier had r.cently be.n damaged. A. W..t
approached the car, which was at that point parked behind
Ingram's residenc., he observed damage to the vehicle'. lett
front tender, and a piece of wood on the vehicle, We.t te.tifi.d
that he found Ingram on the back porch of hi. re.idenc.
att.mpting to ent.r his house. After ..veral minute., Ingra.
.urr.ndered to We.t,
W..t te.tifi.d that Ingram .howed .ign. of being
intoxicat.d, and a. a r.sult, We.t had Ingr.. perfo~ a nuaber of
tield sobriety te.t., Ba.ed on Ingram'. performance, W..t
conclud.d that Ingram wa. under the intluenc. of either alcohol
Qr ot a controlled .ub.tanc., and placed hi. under arr..t tor
violating .ection 3731 ot the Code, 75 Pa. C,S, S 3731 (1'12).
Ingram wa. handcutt.d and a..i.ted into the back .eat of the
police vehicle, While awaiting a tow truck to reaov. Ingr..'.
v.hicle, We.t read Ver.aille. Borough'. che.ical alcohol te.~
warning fo~ to Ingram. The for. r.ad.l
YOU HAVE 8EEN ARRESTED fOR DRIVING UNDIR THI INrLUINCI
or ALCOHOL AND/OR A CONTROLLED SUBSTANCI, A VIOLATION
Of THE PENNSYLVANIA MOTOR VEHICLE COOl,
V8V 1"\'1 811N A8'.'I8I9 8' V8UR 8811"I"""J8".'II. RJIIII',
8G1ftt \'IA8AI.l.Y NI9 IN WAI'PI'I" '811II, Mil IT IS ICY DUTY AT
THIS TIME, TO INFORM YOU THAT YO~ RIGNTS TO CON'IR
J-174-UU
PAG' 12
WITH YOUR ATTORNEY OR ANYONE ELSE, PRIOR TO TAKING THE
REQUIRED CHEMICAL TEST(S), DOES NOT APPLY.
(COMMONWEALTH or PENNA. VS PATRICK M. O'CONNELL NO 79
I.D. APPEAL DOCKET 1977.)
I AM NOW GOING TO REQUEST THAT YOU SUBMIT T~ A CHEMICAL
TEST(S) or YOUR BREATH, BLOOD OR URINE, IN ANY
COMBINATION, TO DETERMINE YOUR BLOOD ALCOHOL AND/OR
DRUG CONTENT,
YOU HAVE THE RIGHT TO REFUSE TO SUBMIT TO SUCH A
CHEMICAL TEST(S), AND IF YOU REFUSE, NO TEST(S) WILL BE
CONDUCTED,
YOU HAVE THE RIGHT TO l<NOW THE RESULTS OF ANY CHEMICAL
TEST(S) CONDUCTED.s
IF YOU REFUSE TO SUBMIT TO THE CHEMICAL TEST(S) I AM
NOW REQUESTING, YOUR OPERATING PRIVILEGES WILL Bt
SUSPENDED FOR A PERIOD OF TWELVE (12) MONTHS, IN
ADDITION TO ANY OTHER PENALTY IMPOSED, AND THAT FACT,
THAT YOU REFUSED TO SUBMIT TO THE REQUESTED CHEMICAL
TEST(S) KAY BE INTRODUCED AS EVIDINCE IN A COURT or
LAW.
According to w..t, the form was r.ad to Ingram v.rbati., .xc.pt
for the part that was scratched out concerninq Miranda right.,
which were not given to Ingram, Moreover, w..t t..tifi.d that
Ingram initially ass.nted to taking the te.t, Later, Inqra. va.
taken to McKe.sport Ho.pital for a blood t..t, but Inqra. refu..d
to .ign a hospital con..nt fora without fir.t talking to hi.
attorn.y or hi. par.nt.. W..t te.tifi.d that h. orally infOraed
S W. have held that a 1D0torbt h.. an absolute right to
refu.. to sub.it to blood alcohol te.ting und.r the Motor Vehiole
Code, and that the r.sult. acquir.d in contravention of that right
mu.t b. .uppr....d, Commonwealth v, Ei.enhart, 531 ,.. 103, 10',
611 A.2d 681, 682 (1992). In addition, the Motor Vehiole statute
provid~~ that the te.t r.sult. be available tor the aotori.t. 75
Pa. C.S, S ~547 (9); Commonw.alth v. Tillia, 359 'a. luper. 302,
518 A.2d 1246 (1986), While motori.t. have th... right., V. have
not h.ld that it is n.c....ry to infor. the .otorlat of tbe..
right. in ord.r for him to make a knowing and conscious deci8ion
about chemical t.sting.
.1-174-1193
fAO. 13
Inqram that he did not have the riqht to speak with anyone prior
to taking the te.t. Furthermore, We.t stated that Inqra. read
the che.i~al te.t warninq torm to hi..elt.
When We.t aqain asked
.
~
Inqra. to acquiesce to the che.ical test and Inqra. re.ained
.ilent, We.t recorded a retu.al.
Inqra. te.titied that he never tully under.tood his riqhts,
which were rsad to hi. a. he .at in the back at the pOlice car
with activity takinq place around him.' Moreover, Inqram
claimed that the police department warninq tor. wa. very
contu.inq. The trial court held that Inqram wa. contu.ed
concerninq his riqhts because he did not have a chance to read
any ot the docu.ents, nor wa. he able to under.tand what va.
qoinq on at the time the torm was read becau.e ot the
di.tractions. Theretore, the trial court su.tained Inqra.'.
appeal,
The sole issue examined by the Commonwealth Court wa.
whether Inqram was provided a sutticient warninq in liq~t ot our
deci.ion in O'Connell. 'ennDOT arqued that the warninq i..ued
Inqra. wa. adequate under O'Connell, that there i. auttioient
evidence ot record to .how that 'ennDOT pre.ented a pri.. taoie
ca.. at a .eotion 1547(b) .u.pen.ion, and that Ingr.. 4id not
pre.ent any co.petent .edical te.tiaony to .how wby be all89edly
could not understand the warninq. qiven hi.. Thu., 'ennDOT
, That activity consi.ted ot Inqra.'. car beinq towed. The
tactor. nece..itatinq the tow are absent trom the record.
3-114-1"3
.AOI 14
argued that Ingram did not carry hia burden of proving hia
reru.al v.. not knowing and conacioua.
Inqra. rebutted ~ennDOT'. argument vith a charge that the
chemical teat warning torm was read to him in the police car
while he was distractea, that the form ita.lr ie grammatically
incorrect and tacially contusing, ana that he waa ailent ana
never verbally rerua.d the test. Moreover, Ingram claimea that
he did ask to speak with his parents and a lawyer, and that had
he known that dia not have that right, he would have agreed to
talce the test.
The Commonwealth Court held that the implied conaent warning
read to Ingram rosterea contusion, Specirically, the court held
that the warning merely inrormea Ingram that Miranda right. did
not apply, and, theretore, dia not comply with the Co..onve.lth
.'.
Court's decision in Decartment ot Tranacortation. Bureau of
Driver Licensing v. Sora, 147 Pa, cmwlth. 82, 606 A.2d 1270
(1992), appeal denied, 531 Pa, 657, 613 A.2d 561 (1992). ~
requires that upon an overt manitestation ot contu.ion over
Miranda rights, an O'Connell explanation mu.t include not only a
atatement that the right to contact an attornlY appUe. only h.
criminal proceedings, but alao an explanation that ch..ical
testing i. not a criminal proceeding, but a civil proceeding.
West did not explain why those righta were inapplicable. The
court hela, as a matter ot law, that the warning. did not co.ply
with our dlciaion in Department or Tranloortation. Bureau o(
J-114-UU
fAG. 11
Traffic Safetv v. O'Connell, 5~1 fa. ~42, 555 A,2d 873 (1989),
and affiraed the trial court'a order.
No. 1 8..tern DJ.trJct Appeal Docket 1993
"
".
The facta in thia case, which are siailar to those in
Inaram, are aa followal'
While on duty on the campus ot Penn state University on
March 16, 1991, Officer Suwerby (Suwerby) encountered a vehicle
traveling northbound on Bigler Road at an excessive rate of
speed, After atopping the vahicle, Suwerby approached the
driver, later identified to be Frain, and detected the strong
odor of an alcoholic beverage emanating from Frain.
Additionally, Suwerby noticed that Frain'. eye. were blood.hot
and watery. At that time, Suwerby had Frain perform a nuaber of
field sobriety testa, which he failed. Consequently, Suverby
placed him under arrest for driving under the influence, and
transported him to Centre County Hospital for a blood teat.
While at the hospital, Suwerby testified that he read .everal
torm. to Frain. Officer Suwerby testified that he alao called
his department for a copy of PennOOT'. nev i.plied con.ent fora I
DL-26, and that he read DL-26 to Frain. The pertinent part of
DL-26, read. a. follows:
4, I a. advising you as tollows:
1 The trial court made no findings of fact except to note
that when the licens.e asked to speak with an attorney before
submitting to a blood test, the arresting officer te.tified that he
responded I "He (the licensee] didn't have that option-, vi thout
further explanation. Accordingly, the recital of fact. 1a deriv.d
trom the Notes of Testimony, September 5, 1991,
"-174-1113
fAOa 11
,ou do not have a right to consult with an attorney, or
anrone else, prior to taking the chemical test, If you
fa 1 ~o provide the requested sample, by not folloving
instructions or by continuing to request to speak vith
.o.eone, it vill be considered a refusal.
..
Suverby te.tified that Frain refused to sign the DL-26 form and
refused to take the blood test, telling Suverby that hi. mother
vas a legal secretary, and that she had cautioned him not to do
anything until he had spoken vith a lawyer. When Frain stated
that he wanted to speak with an attorney, Suwerby told him that
he did not have that option. Atter Frain retused to submit to
the blood test, he vas transported to the police station where he
was given his Miranda rights.
Frain testitied that Suwerby asked him to sign foras at tbe
police station, and that he may have been asked to sign fo~. at
the hospital, but that he vas unsure. Frain also te.titied that
he retused to sign the torms because he vanted to speak vith an
attorney.
The trial court entered an order reinstating Frain's
driver's license, and held that the warning furnished Frain va.
insutticient to discharge the officer's duty under tbi. Cour~'.
decision in O'Connell. The trial court decision va. .ftiraed by
the Commonvealth Court. DeD't of TransD,. Bureau of Driv.r
Licensina Y. Frain, 148 Pa, cmvlth. 636, 611 A,2d 37' (1"2)
(memorandum decision). The Commonwealth Court held ~hat in ligbt
of this Court's decisions in O'Connell and Mc'adden, the warninqs
were inadequate.
3.114.1"3
'AO. 11
PennDOT haa appealed in both Frain and Inaram .eekin9
9uidance fro. this Court a. to what information pOlic. .u.t
impart to the .otori.t
in ord.r to di.charge it. duty und.r our
.
~
Our .tandard of r.vi.v in th... c.... i.
d.ciaion in O'Connell.
identical to th.t of the Commonwealth Court. W. .re confined to
d.termininq whether the trial court'. findin9. are .upported by
competent evidence, whether errora of l.w have b.en committed, or
whether the trial court'. determination. demon.trat. ~ .anif..t
abu.e of di.cretion. ~t_of Tranao.. Bureau of Traffic .atl1x
v. Korchak, 506 Pa. 52, 483 A,2d 1360 (1914). Th. burden. of
proof applicable in licen.e au.penaion ca.e. ar. .. fOllov.,
[UJnder Section 1547(b) of the V.hic~e Cod., the
Commonwealth mu.t e.tablieh th.t the driv.r involved.
(1) was arre.ted for drivinq under the influ.nce of
alcohol; (2) was aaked to .ub.it to . br..th.ly..r
t..t; (3) r.fu.ed to do .0; .nd (4) v.. .pacific.llY
warned that a r.fu.al would re.ult in the r.vocation of
hi. driv.r'. lic.nae.
Once the Commonwealth .eet. it. burd.n it i. the
driver'. re.pon.ibility to prove th.t he v.. not
capable of makin9 a knowin9 .nd con.ciou. r.fu..l to
take the te.t..,.
Commonwealth. D.D'~ at Tran.a.. Bur.au of Traffia ..'.tv v.
O'Connell, 521 Pa. 242, 248, 555 A,2d 873, .7. (1'1'). Moreover,
V. held in O'Connell th.t qu..tion. of credibility and aonlliot.
in the .videnc. .re for the trial court to re.olve. x.. (oiti",
Commonvealth at P.nnsVlvania. Deaart..nt at TY.ft.~r~.~teft Va
Korchak, 506 Pa. 52, 413 A.2d 1360 (1914)). If there i.
.uffici.nt evidence in the r.cord to aupport the findlnv. 0' the
trial Court we mu.t pay proper del.renc. to it .. f.atfiftder .nd
affirm. ~,
J-174-1ttJ
'AG' 11
O'Connell warnings evolved out ot the contusion associated
with the i.plied consent rule in Pennsylvania, Pennsylvania, in
response to the growing hazard ot drunken drivers on pUblic
roads, enacted an implied con.ent statute: 75 Pa, C.S. S 1547(a)
(1982). That etatute provide. that a person who operates a aotor
vehicle in Pennsylvania is presumed to have consented to chemical
testing tor the purpose ot determining the alcoholic content ot
his blood, Retusal by a motorist to submit to such a test, upon
a proper request being made by police, constitutes grounds tor
driver license suspension,
.'.
In many cases a question has arisen as to what constitutes a
retusal to take the chemical sobriety test within the .eaning of
the implied consent law. ~ DeD't of Transp. v. Gros~, 146 'a,
Cmwlth. 1, 605 A.2d 433 (1991) (tailure to .upply sufficient
breath sample is conduct tantamount to a refusal to submit to
chemical testing); Murrv v. Commonweal~, 143 Pa, cavlth. 351,
598 A.2d 1356 (1991) (anything short of an unqualitied,
unequivocal assent to the request to submit to che.ical testing
is a refusal); Cola." v. Com.. Cent. of Trans.. Bur.au af Driver
Licensina, 127 Pa, cavlth. 479, 561 A,2d 1341 (1919) (aotori.t'.
insistence that blood sampla be taken trom his little toe va.
equal to a refusal to submit to chamical te.ting), We have also
held that a request to communicate with counsel prior to
submitting to a chemical sobriety test constitutes a refusal to
take the test. Com.. DeDt. ot TranSD. v, O'Connell, 521 'a. 242,
555 A.2d 873 (1989) (citing Kina v. OeD't ot TransD,. Bureau of
J-174-UU
PAGe 19
Traffic Satetv, 81 Pa. Cmwlth, 177, 473 A.2d 1196 (1984)). Th.
Court's finding is a cons.qu.n:. ot our vi.w that the ch..ic.l
test proceeding. ar. civil in natur., and th.r.for. the
.
...
con.titutional right to counsel do.. not att.ch, .v.n though the
civil and criminal a.p.cts of a Driving Under the Influ.nc. (DUl)
proceeding ar. in.xtricably .ntwined. Com.. Deat. of Tr.n.D. v.
O'Connell, 521 Pa. 242, 555 A.2d 873 (1989)1... &lag In r.
Weitzel, 41 Pa. Cmwlth. 235, 400 A,2d 647 (1979).
This Court has held, however, that because the di.tinction
between civil and criminal proceeding. i. .morphou. in DUI c....,
th.re i. an intrinsic inequity in a .itu.tion wh.r. .n .rr..t..
is initially told that he has a right to consult with .n
attorney, but wh.n he asks tor counsel in conjunction with a
request that he submit to ch.mical te.ting, is .arked a. bavinv
retused to be tested, and his driving privilege. are .uapended.
Com., DeDt, ot TranSD. v, O'Connell, 521 Pa, 242, 555 A.2d 173
(1989) ,
The Commonwealth Court ha. constru.d our deci.ion. in
O'Conn.ll and it. progeny to require that an officer explain to
an arr..tee why his right to couns.l doe. not attach in ab..ical
testing. JAI Bell v. Commonwealth, DeD't of TransD" 147 'a.
cmwlth. 157, 607 A,2d 304 (1992)1 Dea't of Tran.p,. Bureau of
Driver Licen.ina v. Sora, 147 'a. cmwlth, 12, 606 A.2d 1270
(1992), petition for .llowlnce of .ppe.l denied, 531 P.. 657, 613
A.2d 561 (1992); Com~onwellth~ cep't of TranSD, v, McCarv.v, 136
Pa. cmwlth. 358, 583 A.2d )9 (1990).
J-l14-UtJ
fAO. ao
In ~ the Commonwealth Court held that to satisty the duty
placed upon the police by this Court's decision in O'Connell, the
otticer mUlt provide the motorist with certain intormation which
varies, depending on whether the motorist was p;~vided Miranda
rights prior to the request tor che.ical testing, In instance.
where Miranda warnings had been given, the ~ court require.
that an Q!Connell explanation include the tollowing:
1. That an individual's constitutional rights when
accused ot a crime do not apply to the chemical testing
procedure under Pennsylvania's Vehicle Code.
2. specitically, that the licensee has no right to
consult with counselor anyone else betore taking the
test.
3. That the Miranda protection. are not applicable
because che.ical testing is a civil procedure, not a
criminal proceeding, and the Miranda protection. only
apply in criminal proceeding., but the licensee's
retusal to submit to the testing may be introduced in
evidence in a subsequent criminal proceeding,
~, 147 Pa, Cmwlth, at 90, 606 A,2d at 1274. In situations
where Miranda warnings have not been conveyed, yet the motori.t
makes a request to Ipeak with a lawyer, or someone else, the
tollowing intormation mUlt be included in an O'Connell
explanation when the motori.t is asked to take a chemical t..t:
1. That the right to counsel 18 a constitutional riC)bt
and applies only to criminal proceeding., not to civil
proceedings.
2, That the request to submit to chemical t.sting i.
not a criminal proceeding, that it il a civil
proceeding, but the licen...'s retu.al to lubmit to tbe
testing may be introduced in evictence in a lub..quent
criminal proceeding.
3. That the liclnue does not have aright to contact
an attorney or anyone else betore taking the t.lt nor
J-174-Ut3
'IIGI 21
doe. he have the right to remain .ilent .. to the
teeting procedure.; that ie, licen.ee muet
attiraatively agree to aubmit to the chemical teating.
AQIg, 147 'a. cmwlth, at 91, 606 A,2d at 1275. .
~
The Commonwealth Court applied the.. requirement. to the
in.tant ca.e. when it held that the warning. read were
in.utticient becauae they did not explain why the motoriat'.
right to coun.el did not attach in the.e proceeding.. The
Commonwealth Court L\as misconstrued our holdinga in the O'Connell
line ot cas.s, and, as a result, has expanded the O'~onnell rule
unreasonably, making the warning difficult tor the motori.t to
understand and placing an unacceptable burden on police,
In Danforth ve held that a .ufticient O'Connell explanation
i. ea.ily understandable by the motori.t and i. not unduly
burden.ome to law entorcement otticer.. Danforth, 530 'a. at
333, 608 A.2d at 1046-1047. Req~i~ing pOllce ottl~. ,. ...l.~
that the request to .ubmit to chemical te.tin9 i. . civil
proceeding and not a criminal proceedin9, and tha~ the ri9b~ to
coun.el only applie. in cri.inal proceedinge, for~ t~ ~
recite words connoting 1e9al di.tinotion. which are enlvaa~io at
beat. It is incomprehen.ible how evoking theoe arcane
difterence. vill a..l.t the apparently intoxicated .otori.t to
make a knowing and conscioua deci.ion about whether or not to
submit to chemical testin9'
Into~.in~ the aotori.t tbat hie
..~'
,
right to counsel doe. not apply to oheaiG8l te.tin9 r..olv.. few
the moto~i.t any contusion he may have about hi. rl9ht to
counael. Hence, the motorist ls furnished with tho tool.
J.174-1ll'
'AO. 22
, ,
.
necessary to make a knowing and conscious decision without
introducing information that would heighten confusion.
Accordingly, we overrule any ca.e which turns on the
determination that the warning given the motori.t tailed to
comply with O'Connell because the otticer tailed to explain the
distirction between criminal and civil proceedings with regard to
the retusal to submit to chemical testing.
Hence, we hold that a proper O'Connell warning must include'~
,
the tollowing information: first, a motorist must be intormed
that his driving privileges will be suspended tor one year it he
refuses chemical testing;8 second, the motorist must be informed
that his Miranda rights do not apply to chemical testing. Thi.
is by no means a mantra that the police must recite like
..
.
,
.
automatons. The subject matter, however, .hould be covered in
warnings issued by the police,
We now turn to the cases at hand. In Inaram the trial court
determined ehat the circumstances surrounding Ingram'. being
advised ot his right. were contusing, and that he wa. unable to
understand the warning. being read to him, and there tor.
sustained his appeal. The Commonwealth Court affiraed becau.. it
found the warning read was insufficient as a .atter of lav.
eecause the torm read to Ingram was, pursuant to our deci.ion
...."
~
,;>
"
8
75 Pa.C.S, S 1547(b) (~),
.7-114-1993
JAO' U
today, aufficiant a. a mattar of law, wa tind arronaoua tha
co..onv.altb Court'a concluaion to the contrary.'
In ZIalD, the trial court hald that in reapon.e to Frain'.
.
'.
raqueat to apeak with an attorney ~rior to .ubmitting to a blood
teat the arreating officer replied: "he (the licen.ee] didn't
have that option," without turthar explanation. Although Otticer
Suwerby claimed that ha axpl.ined the PannDOT DL-26 torm to Frain
while at tha hoapital (N.T. 9/5/91 p, 7), the trial court did not
tind that testimony cradibla. Havinq raviewed the record in
Frain, we are satistied with the trial court'. tinding that Frain
did not know anythinq mora than that ha did not have the option
ot apeaking with an attorney, Bacau.e the te.timony elicited at
trial aupport. that tinding by the trial court, and que.tion. of
credibility and conflicta in the evidence pre.ented are for the
trial court to re.olve, we are precluded trom overturning the
trial court'. determination and mu.t attirm. Furthermore, the
, PennDOT did not pre.erve for review the i.aue of whether
Inqra.. ..et hi. burden of de..on.trating that he va. unable to
under.tand the warninq. read to him.
.:/'-17t-un
UQ. at
warnings provided on OL-26 satisty, as a matter ot law, the
ainiau. ~equi~eaents we have articulated today.
Accordingly, we attira the orders ot the Commonwealth Cou~t.
'-.
Mr. Justice Lar.en did not participate in the deci.ion ot
this ca.e,
Hr, Justice Papadakos tiles a Concurring and Dissenting
Opinion.
Senior Justice Hontemuro was an appointed Ju.tice ot the
Court at the time ot argument,_
-Hr, Justice Hontemuro is Sitting by designation a. Senio~
Justice pursuant to JUdicial ASsignment Docket No. 94 Rl.01, dUe
to the unavailability ot Hr. Justice Larsen, .e. No. 127 Judicial
Administration Docket No, 1, filed October 2', 1993.
:1
.7-17t-Uu
.AGI as
.
I
~,
J-17..UU
Dr ~ .UP... C~T 0' .....YLVUIA
1IU'l'DJI AlII) ..STUll DIIftlC1'S
COMMONWBAt.TH or PBNNSYLVANIA,
DBPARTMBNT OF TRANSPORTATION,
BURBAU OF DRIVBR LICBNSING,
Appellant
v,
THBODORB H. FRAIN, IV,
Appellee
No. 2 Bastern District
Appeal Docket 1993
Appeal trom the Order ot the
Commonwealth Court Bntered
on June 17, 1992 at No. 2275
C.D. 1991 Attirming the Order
at the Court ot Common PleaM
at Chester County, Civil
Division, Entered September 25,
1991, at No. Sl-04550.
148 Pa, Cmwlth. Ct. 636,
611 A.2d 378 (1992)
ARGUED: September 21, 1993
"
***..*.
"
"
COMMONWBALTH OF PBNNSYLVANIA,
DBPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING, :
Appellant
v.
"
DOUGLAS JOHN INGRAM,
Appellee
No. 1 Western District
Appeal Docket 1993
:
Appeal trom the Order ot the
Commonwealth Court lotered
on July 8, 1992 at No. 1772
C.D. 1991 Atfirmdng the Order
at the Court of Cammon Ple.s
at Allegheny County, Civil
Division, Entered July 17, 1991,
at No. SA 13.6 of 1991.
149 Pa. Cmwlth. Ct. 170,
612 A.2d 634 (1992)
ARGUBD: September 21, 1993
COIi'COIUlIHQ AND DISSDI'l':IIIQ OPIHI~
,
"
,
1Ca, JOSTIC. ,APADAltOS
t.
DICIDID. Septe.be~ 13. 1".