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Home My WebLink About95-04142 . .,' " '., . ~ " , (. ..~. I"~ '. " . , % F ,j ,1,,' , , , , (} -:r - , , :r \ " . COIDCON'lfIALTH 01' PINNSYLVANIA PINNSYLVANIA DIPARTMIINT 01' TRANSPORTATION BURIAU 01' DRIVIRS LICINSINO, Appellee V IN THI COURT 01' COMMON PLIAS 01' CUMBIRLAND COUNTY, PBNNSYLVANIA CIVIL ACTION - LAW 95-414~ CIVIL TBRM RICHARD LIROY PAlLOR, Appellant ORDER 01' COURT AND NON, thi. 12th day of October, 1995, at 9,30 a.m., after hearing, the appeal of the petitioner from the. ~ George Kabu.k, ..quire Department of Tran.portation ~, ~~commonwealth of Penn.ylvania ~\d4<< Richard railor \e\''\I 839 W. Louther Street Carli.le, PA 1 7013 J)I/ Ibg .u.pen.ion of hi. driver'. licen.e i. denied. By the Court, ~t.-.. /:J IL Kevin A. He.., J. / , , , The Honorable Kevin A. Hess .2. October 12, 1995 The meaning of "arrest" in the context oflha implied consent low is not the same os under the Rules of Criminal Procedure. All that is necessary to clrcet an arrest for the purposes of the implied consent law is lhatthe motorist was in the custody and control of the police officer, Department of Transportation. Bureau of Driver Licensin~ v Webb, 139 Pa. Cmwlth. I, 590 A.2d 28 (199 I), appeal denied _ Pa. ..,604 A.2d 252 (1992); Department ofTransportation. Bureau of Traffic Safetv v Uebclaeker, 98 Pa. Cmwlth. Ct. 436.511 A2d 929 (1986). In the context of implied consent law , the test for reasonable grounds is a lesser standard than probable cause. The court stated: The test for rellSonable grounds is not \'ery demanding. If 0 reasonable person in the position of the arresting officer. viewing the facls and circumstances as they appeared to the arresting officer, could have concluded that the motorist had operated the \'ehicle while under the innuence, such reasonable grounds arc established. Keane v. Department ofTransportation, 127 Pa, Cmwlth Ct. 220,561 A.2d 359 (1989). See also DeDartment ofTransportation. Bureau of Traffic Safetv v DreiWlm, 26 Pa. Cmwlth. Ct. 201,363 A.2d 870 (1976) Reasonable grounds may exist without any witness having obsen'ed the motorist actually operating a motorvehiclc. Mel10skv v Commonwealth. 121 Pa. Cmwlth. Ct. 464. 550 A.2d 1372 (1988), Polinskv \' Deoartment of Transoortatio:l. 131 Pa. Cmwlth. Ct. 83,569 A.2d 425 (1990). A police officer may rely upon information provided to the officer by third parties in order to establish reasonable grounds. Pallerson \. Commonwealth, 138 Pa. Cmwlth. Ct. 292,587 A.2d 897 (1991). The police officer is permilled to testify what the officer was told by those third parties in order to establish reasonable grounds. Menosk-y v Commonwealth. 121 Po. Cmwlth. Ct. 464, 550 A.2d 1372 (1988). An officer's reasonable grounds ore not rendered void even if later it is determined that the officer was Incorrect. ~ment of Transportation Bureau ofTraffie Safetv v Dreisbach. 26 Po. Cmwlth. Ct. 201, 363 A.2d 870 (1976) The officer must request the motorist to submit to a chemical test. The choice of test is entirely within the officer's discretion. Department of Transoortation. Bureau of Driver Licensin~ v Penieh.112 Pa. Cmwlth, 303. 535 A.2d 296 (1988). A ficld sobriety test is not a chemical test for the purposes of the implied consent low. Commonwealth v Weaver. 384 Po. Super 231,558 A.2d 97 (1989), appeal denied, 524 Pa. 627,574 A.2d 69 (1990); Wall v Commonwealth, 114 Pa. Cmwlth. Ct. 397,539 A.2d 7 (1988). Once a police officer has requested the motorist to submit 10 a chemical test, there is only one acceptable response; that is, an unqualified. unequivocal assent to submit to the requested test. Department ofTransportation Bureau of Driver Licensino v Stay, 114 Pa. Cmwlth, Ct. 532,539 A.2d 57 (1988); Deoartmenl ofTransoortation, Bureau of Driver Lieensino v Groscosl, 142 Po. Cmwlth. Ct. 36, 596 A,2d 1217 (1991). A motorist may not place restrictions on taking the test. ~ Department of TransDOrtalion. Bureau of.QJ:.U:er Licensin~ v Colllan. 127 Pa, Cmwlth. Ct. 479, 561 A.2d 1341 (1989)(eonsidercd refusal where motorist agreed to lake blood test but would only allow blood to be drawn from his Iillle toe), Nor may the motorist agrce to lake a chemical test other than the particular test requested by the police officer. DeDartment of Transportation. Bureau of Driver Licensin~ v Mease. 148 Pa. Cmwlth. Ct. 14, 610 A. 2d 76 (1991). When a motorist agrees to submit to a chemical lest but by his conduct frustrates the administration of the test. then such behavior is considered 0 refusal. Budd Appeal. 65 Pa. Cmwlth, Ct. 314,442 A. 2d 404 (1982). Failing to comply with the police offieer's instructions regarding the chemical test is considered 0 refusal. ~ Deportment of Transportation Bureau of Driver Licensino \. Orlando. 114 Pa. Cmwlth. Cl. 441,538 A.2d 957 (1988); Department ofTransoortalion Bureau of Driver The Honoroble Kevin A. Hess .3. October 12. 1995 liccnsinll.x..MlIIIlII1lI, 79 Po, Cmwlth, CIIOK, 46K A.2d 8917 (19K3) A motorist's silcnce when osked if he would toke 0 chemieoltest is considered 0 refusol, ~ Deportment of Trollsportotion. Bureou of Qtiver licensin~ v Wicks, 136 Po, Cmwlth, Ct, 322, 5K3 A,2d 21 (1990); See olso Lewis v, Commonweolth. 114 Po, Cmwlth CI 326. 53K A.2d 655 (19KK), If 0 motorist ollempts 10 toke 0 breoth test, but provides insufficient breoth, thot will be considcred 0 refusol, Deportment of Tronsoortotion. Bureau of Dri\'er licensinv v Kilroin. 1401'0, Cmwllh, CI 484. 593 A,2d 932 (1990). oppeal denied. 529 Po 625. 600 A.2d 541 (1991 )(en banc), In fact, the mo..".s!'s good foith effort to provide breoth somples docs not vitiate the refusal bosed upon insuflicient breath, o.:partment ofTronsoortation. Bureou of Driver Licensin2 \' Kilrain, 140 Po, Cmwlth, CI 4K4, 593 A.2d 932 (1990), appeol denied, Po, 625, 600 A.2d 541 (I 991)(cn bone), A motorist may argue that he did not refuse to take the test becduse he was incopable of making 0 knowing and conscious refusal. The burden of proof is upon the motorist to estoblish his incapacity unless the injury is so severe that it obviously rendered him incapable, Pollock v Dcpartment of Transportation. l;Iureou of Traffic Sofetv, 160 Po, Cmwlth, CI 3K3, 634 A,2d K52 (1993); Dcpartment of Transportation Bureau ofTroffic Safety v Holsten. 150 Po Cmwlth CI I. 615 A 2d 11311(92), If the motorist argues that the refusal was not knowing ond conscious because he wos incapable of perfonning the test, then the motorist must establish that fact by competent medicol evidence, ZlIl2iu:. o.:partment of TranspOltation. Bureau ofTraffic SafelY, 93 Po, Cmwllh, CI 221. 500 A,2d 128K (9185), Furthermore, if the incapocity is bosed upon a particular medical condition, the motorist must also cstablish that he notified the police officer of the particular medical condition, Larkin v, Commonwcalth, 109 Po, Cmwlth, CI 611, 531 A,2d K44 (9IK7) Of course. voluntal')' intoxication is no defense, o.:partment of Transoortation Bureau of Driver Licellsinlol \,', Monsay. 142 Po, Cmwlth, CI 163, 596 A.2d 1269 (1991) A motorist may also orgue he was unable to make a knowing and conscious refusal because he was confused over his Miranda rights, Again. once the Commonweolth meets its burden, it is the motorist's burden to prove that because of his confusion over his Miranda rights he was not capoble of making a knowing and conscious refusal, Department of Transoortation. Bureau of Traffic Safety v, O'Connell. 521 Po, 242,555 A.2d 873 (1989), When a motorist is advised of his Miranda rights or when the motorist requests to consult with someone prior to dcciding to take a chemical test. the motorist must be given the () 'Connell warning, o.:partment of Transoortation. Bureau of Driver Licensin2 v, Inllram, 538 Po, 236, 648 A,2d 282 ( 19(4); Ostronder v Department of Trans~ortation. Bureau of Driver Liccnsinll. 116 Po, Cmwlth, Cl. 243, 541 A.2d 441 (1988); Department ofTransportalion. Bureau of Traffic Safety v, O'Connell. 521 Po, 242.555 A,2d 873 (19K9). Deoartment ofTransportation Bureau of Traflie Safety v Fiester, 136 Po, Cmwllh, CI 342, 5K3 A2d 31 (1990)(en banc). appeal denied, _ Pa,_, 598 A,2d 2K5 ( 199 I), A proper () 'Connell warning must inform the motorist that his operating privilege will be suspendcd for one year if he refuses a chemical test and that his Miranda rights do not opply to chemicol testing, Dcoartrnent of Transportation. Bureou of Troflic Safety v, Fiester. 136 Po, Cmwlth, Cl. 342.583 A.2d 31 (1990)(en bane), appeal denied. _ Pa_, 598 A.2d 285 (1991) Once again, voluntary intoxication is no defense, o.:partment ofTransoortotion Bureau oLQtiyer Lieensin2 v MonsOY, 142 Pa, Cmwlth. Cl. 163.5% A.2d 1269 (1991). If the motorist's voluntory intoxication is 0 factor which contributes 10 rendering him menIally incopoble of making a knowing and conscious refusal. the confusion defense must fail ~ent ofTransportation. Bureau of Driver Licensinll v Monsl\Y. 142 l,.., <n - -,- t'. : "" .,;.". ''-I = -- " ,;:,) .....1. , , ~ r. l ~ ~ oq ~ (,0, . ,'6 .'. \ ....-~- CERTIFICII'l'E OF SERVICE 1 HEREBY C.'ERTIFY THAT 1 11M 'lllIS Dl\Y SFJWING 11 COPY OF THE FORIDlING A1'PE'AL UPON THE PE1&lN IIND IN THE MllNNm INDIClITFD BEL<M, Wlllal SFRVICE SATWFlffi THE RB;lUIREMENl'S OF TIlE PrnNSYLVllNIlI HULES OF CIVIL PllOCEUJRE:, BY DEPOSITING A ropy OF TIlE SlIME IN TIlE UNITm STlITffi ClIMP HILI" PrnNSYINIINIlI, THROOGtI FIRST ClJ\SS CERTIFIED M1\IL PRE:!'A!D /\NO IIDDRESSED AS FOIUMS: PrnNSYLVANlA DEPARIMENI' OF' 'l'R.\NSPORTI\TlON RO:M 101 TRIINSPORTATION Ii SAFE:1'Y BUILDING HARRISBURG, PA 1 7120 Dl\TW 9/2/95 {t?~uJ) ~a;~ SI:O{J((I (/,/'/ j""b5'{I,(,l't! /('h>C ,lIe tI ,} '0 I, - .I "II I " , ('/t/,/ {ii' /4" :/,'j /, , {' 1 ( ( It' (' II .' I' ,.( L I 'I ,/J', ,J/~~ 1 {/ '/'c NOTARIAl SfAl JOOYlEf fCKnIkGO/t ~1'!iJlyP"l)lic Carlisle, Clll1llt:' \:,1' I'l'r!t~ ~CcmmiSSlonl<w"' ~I,l';"i~. i:m COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 JULY 04, 1995 f I l. t i RICHARD L FAILOR 83' W LOUTHrR ST CARLISLr PA 17013 '51748412001020 01./2711"5 0652'UO 07112/1'33 DOlo Dear Motorist: As a result of Your violation of Section 1547 of the Ve- hicle Code, CHEMICAL TEST REFUSAL on 06/18/1995, your driVing privilege is being SUSPENDED for a period of 1 YEARCS). In order to comply with this sanction YOU are required to return any current driver's license, learner's permit andlor temporary driver's license Ccamer~ card) in your posseSSion no later than the effective date listed. If YOU cannot com- ply with the requirements stated above, YOU are reqUired to submit a VL16LC Form or a letter acknowledging the sanction of your driVing priVilege. Failure to comply with this no- tice shall result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571Ca)C4) of the Vehicle Code. Although th~ law mandates that Your driVing priVilege is un- der suspension even if YOU do not surrender your license, C:rodit will not he!!in ul,til all Cllrr'1nt driver's license productCs), the DL16LC Form, or a letter acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT. IF YOU 00 NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELV. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. Effective Date of SuspenSion: 08/08/1995, 12:01 a.m. .................................................................... IWARNING: If YOU are convicted for driVing while your license is I Isuspended, the penalties will be: not less than 90 days imprison-I Iment and a .1,000 fine and an additional 1 year suspenSion. I .................................................................... ... ~ ~.. 0;: q Ii ~ I .'~l r> , ..~ 1- ~ (n a z::.~, U1 ,- . VI 8 () .;a:'.... ~ ~ ...,~: cO 0 (0 . ~ "8- <.11 ~ 11 ).) Q ~ 9:' 'I-