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HomeMy WebLinkAbout98-3077 civilRICHARD ZEBEL : IN THE COURT OF COMMON PLEAS OF Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA .. V. : NO. 98-3077 CIVIL COMMONWEALTH OF PA : DEPT. OF TRANSPORTATION Respondent IN RE: DEFENDANT'S PETITION FOR LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, September 4, 1998, after careful consideration of testimony presented and case law furnished to the Court, Defendant's appeal of his license suspension by the Pennsylvania Department of Transportation is sustained and the action of the Pennsylvania Department of Transportation is reversed. By the Court,  p.j. John B. Mancke, Esquire 2233 N. Front Street Harrisburg, PA 17110 For the Petitioner Barbara A. Darkes Department of Transportation Office of Chief Counsel Vehicle and Traffic Law Division 1101 S. Front Street - 3"~ Floor Harrisburg, PA 17104-2516 For Respondent RICHARD ZEBEL : IN THE COURT OF COMMON PLEAS OF Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA : V. : NO. 98-3077 CIVIL COMMONWEALTH OF PA DEPT. OF TRANSPORTATION Respondent IN RE: DEFENDANT'S PETITION FOR LICENSE SUSPENSION APPEAL BEFORE HOFFER, J. MEMORANDUM OPINION In this opinion we address Richard Zebel's petition for a license suspension appeal. The facts in the case are as follows: Petitioner Zebel was arrested for violating 75 Pa.C.S.§3731 by a police officer, who had reasonable grounds to believe Petitioner was operating a vehicle while under the influence of alcohol. Subsequent to Petitioner's arrest, the officer transported Petitioner to the Harrisburg Hospital where they checked in and waited for a staff technician to draw a blood sample. Approximately one-half hour after their arrival at the hospital, the staff technician arrived in the room. Upon his arrival, the officer asked Petitioner if he would submit to two blood tests. Petitioner immediately responded that he wanted to speak to an attorney prior to submitting to a blood test. Consequently, the officer, for the first time, read 98-3077 CIVIL to Petitioner the complete chemical test warnings on the Department DL-26 form. The officer then asked Petitioner to sign the form. Petitioner stated that he would not sign anything until he conferred or spoke with counsel. The officer testified that he took Petitioner's refusal to sign the form as a refusal to submit to the blood test; the officer further testified that he did not again request the Petitioner to take a blood test so that the officer could receive a clear refusal. Section 1547 of the Code, 75 Pa.C.S. § 1547(b)(2) provides: "It shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended or revoked upon refusal to submit to a chemical test." Sheakley v. Department of Transportation holds that once an officer performs this duty through a recitation of the statutory warning and a valid request has been made to submit to a chemical test, anything less than an unqualified, unequivocal assent to take a chemical test constitutes a refusal warranting an automatic suspension of the motorist's operator's license. 513 A.2d 551 (Pa. Commw. Ct. 1986). But one's refusal to sign the DL-26 form is not a refusal to submit to a chemical test. Pennsylvania's Department of Transportation's DL-26 form states: "OFFICER NOTE: The refusal to sign this form is not a refusal to submit to a chemical test. You must still give the motorist an opportunity to take the chemical test after reviewing this form." 98-3077 CIVIL In the present case, Petitioner's refusal to sign the DL-26 form is clearly not considered a refusal to submit to chemical testing. Furthermore~ the officer's request for Petitioner to submit to a chemical test was made prior to his reading of the implied consent warning contained in DL-26. This untimely, and thus defective warning, could have been cured by a post-warning opportunity for the Petitioner to assent to chemical testing. Jackson v. Commonwealth, 510 A.2d 396 (Pa. Commw. Ct 1986). But a post warning 'opportunity' to submit to testing is not satisfied by the mere passage of time. A post-warning 'opportunity' to submit to test must be either a verbal request or a physical request such as holding out a breathalyzer mouthpiece and asking one to breathe into it. It cannot be assumed that a person, after receiving the DL-26 warning, understands that they can change their mind if they had refused to submit to a chemical test prior to the warning. We agree with the reasoning in In re Gauker that a further request should have been made to Petitioner to submit to the test in view of the fact that he could now make an intelligent, informed decision with the knowledge of the penalty for refusal. 14 D. & C. 3d 454, 457 (1980). Consequently, Petitioner's refusal to submit to a chemical test was not valid and his license suspension is reversed.