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HomeMy WebLinkAbout98-6423 civilJACK R. CARDONE VS. COMMONWEALTH OF PA, DEPARTMENT OF TRANS., BUREAU OF LICENSING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-6423 CIVIL APPEAL FROM SUSPENSION OF DRIVER'S LICENSE ORDER AND NOW, this a '-/" day of May, 1999, the appeal of Jack R. Cardone from the suspension of his driver's license is SUSTAINED and the action of the Department of Transportation is VACATED. BY THE COURT, George H. Kabusk, Esquire For PennDOT Karl E. Rominger, Esquire For the Appellant K~~.~. Hess, J. 'rlm JACK R. CARDONE VS. COMMONWEALTH OF PA, DEPARTMENT OF TRANS., BUREAU OF LICENSING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-6423 CIVIL APPEAL FROM SUSPENSION OF DRIVER'S LICENSE OPINION AND. ORDER BEFORE HESS, J. In this case, Jack R. Cardone has filed an appeal from the action of the Pennsylvania Department of Transportation suspending his driver's license. Following hearing, we find the following to be the facts. On the evening of September 19, 1998, while serving as back-up on another police call, Officer Kenton McCoy of the Carlisle Police Department observed Mr. Cardone walking on West Street in Carlisle. Mr. Cardone seemed to have trouble negotiating his way. Moments later the officer attempted to find the appellant and saw him pulling away from the curb in a pick-up truck. The vehicle was stopped and, during his initial moments of contact, Offfcer McCoy noticed an odor of alcohol about Mr. Cardone's person. The driver had some difficulty locating his insurance card and registration. The officer also noticed that he had glassy eyes. When asked to step from the vehicle, he walked the sidewalk in a slow and deliberate manner. The officer also noticed slurred speech. Mr. Cardone was eventually placed under arrest and handcuffed. He was then taken to the Carlisle Hospital. En route, the officer informed the driver that he would be asked to submit to a blood test and that his driver's license would be suspended in the event that the appellant refused. In fact, all of the DL-26 form, entitled "Chemical Testing Warnings 98-6423 CIVIL and Report of Refusal to Submit to Chemical Testing as Authorized by Section 1547 of the Vehicle Code" was read to the defendant with one rather curious omission. The officer did not read that portion of the form which made it clear to the driver that the chemical test was exclusively of the officer's choosing. This is important, we believe, in light of Mr. Cardone's explanation of what subsequently ensued. Mr. Cardone indicated to the officer that he was willing to take a chemical test, including a breath test. He insisted that he was not refusing but just did not "want a needle." Even though a technician was ready to draw blood, the defendant persisted in his refusal. It appeared to the officer that Mr. Cardone was, for some reason, afraid to have a blood test. The driver did not explain his reasons for his reluctance to cooperate with the phlebotomist. At the hearing, he testified, credibly, that he is a recovering heroine addict and has a great concern for relapse. Also, at the hearing, the appellant proffered the testimony of Mr. James Eash who explained 'the life-long nature of heroin addiction and the importance of the use of a hypodermic needle as part of the "drug ritual" which surrounds heroin. He described the concern over hypodermic needle injection and re-addiction as legitimate. Mr.:lZardone testified, also, that he was aware of the other types of tests that were available and felt that by agreeing to at least one of them, he was not refusing. In these cases, once the Department of Transportation has shown a prima facie case with respect to refusal, the burden shifts to the licensee to show that he was not knowing or conscious in his refusal or that he was physically unable to take the test. See Laurita v. Dept. of Trans., Bureau of Driver's Licensing, 158 Pa. Cmwlth.576, 632 A.2d 611 (1993). While it is apparent 98-6423 CIVIL that the Department has met its prima facie burden, we are equally satisfied that Mr. Cardone has established that his refusal was not knowing or conscious. To the contrary, he intended to agree to chemical testing and voiced as much. The question posed by this case is whether, once it becomes apparent that the motorist is mistaken in his assumption that he may choose the test, it becomes incumbent upon the police officer to disabuse him of that notion. We believe that it does. Our courts have recognized that there are serious consequences at stake in these matters and that something other than a purely mechanical approach is required. In the case of Joon Ho Yoon v. Com., Dept. of Trans., 718 A.2d 386 (Pa. Cmwlth. 1998), for example, the court held: In view of the Department's clear burden of proving that it informed the licensee of the consequences of a refusal to submit the chemical testing and the lengthy suspension imposed on a licensee who refuses to consent, it is not an unreasonable burden to require a police officer to verbally inform a licensee of the consequences of a refusal. We agree with the trial court conclusion that Licensee was not adequately informed of the consequences of a refusal when the police officer merely provided Licensee with a form rather than reading the warnings to him. Id., 718 A.2d at 388. In the case of Wenger v. Com., 107 Pa. Cmwlth. 20, 527 A.2d 1071 (1987), the Commonwealth Court dealt with a situation very similar to the one at bar. In that case the motorist was read the provisions of the Implied Consent Law and then asked to submit to a breathalyzer. He refused, insisting that he wanted a blood test. The officer then informed him 98-6423 CIVIL that he could obtain a blood test on his own, later, that the officer was requesting him to submit to a breathalyzer and that his continued insistence on a blood test would be deemed a refusal. It was this latter warning which the Commonwealth Court found to be critical in the case. In the matter sub judice the appellant was simply told that he was required to submit to a blood test and was told nothing about his offer to take another test. This would appear, at first blush, to involve a distinction without a difference. It is clear, however, that the Commonwealth Court recognized the potential confusion concerning whose choice governed which test to be administered. While it felt that the confusion had been addressed by the officer in Wenger, the court went on to say: The trial court held that the implied consent form and this testimony by the officer was sufficient to indicate that Appellant was properly warned. While we agree with that conclusion by the trial court, we also believe that in order to avoid similar problems in the future, the arresting officer or the breathalyzer operator should inform the motorist that the choice of chemical tests is made by an officer and not by the motorist and anything less than an unconditional assent to the officer's request for a specific test will result in a 12-month license suspension. (Emphasis added) Id..., 527 A.2d at 1073, f.n. 3. The DL-26 form, read to the appellant in this case, bears a date of"(7-94)," some seven years after the decision in Wenger v. Com. Paragraph 2 of the form reads: 2. I am requesting that you submit to a chemical test of (breath, blood or urine. Officer chooses the chemical test.) (Emphasis added) It would appear obvious that this language was inserted in order to avoid precisely the confusion 98-6423 CIVIL which reigned in this case. Officer McCoy could have, in a matter of seconds, made it clear to Mr. Cardone that his offer to take another kind of test was ineffectual and that it was he, the officer, who was the person entitled by law to select the test. Knowing that he had no control over the matter, Mr. Cardone may have consented to the test demanded by the officer. What would have happened, however, we will never know. It is important to underscore our sense of what actually occurred in this case. This is not a situation, we are satisfied, involving a refractory arrestee bent upon avoiding the consequences of his choice. It is simply a matter in which the petitioner concluded, albeit erroneously, that he was not refusing a chemical test under Pennsylvania law. He indicated that he would submit to any test other than a blood test while failing to realize that the choice of the test was not his to make. Our courts have sensed the possibility for this confusion and have suggested ways in which it can be avoided. Those ways were not followed in this case. ORDER AND NOW, this day of May, 1999, the appeal of Jack R. C~rdone from the suspension of his driver's license is SUSTAINED and the action of the Department of Transportation is VACATED. BY THE COURT, ess, J. 98-6423 CIVIL George H. Kabusk, Esquire For PennDOT Karl E. Rominger, Esquire For the Appellant :rim