HomeMy WebLinkAbout2007-966 Civil
MAHMOOD M. SAAND, : IN THE COURT OF COMMON PLEAS OF
Appellant : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION – LAW
:
COMMONWEALTH OF :
PENNSYLVANIA, :
DEPARTMENT OF :
TRANSPORTATION, :
BUREAU OF DRIVER :
LICENSING, :
Respondent : NO. 07-966 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., December 11, 2007.
In this driver’s license suspension appeal case, Appellant has filed an
appeal to the Pennsylvania Commonwealth Court from an order of this court
affirming a one-year suspension of his driving privilege based upon a chemical
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test refusal. The grounds for the appeal to the Commonwealth Court have been
expressed in a statement of matters complained of on appeal as follows:
1. The Court erred in denying the driver’s license suspension appeal
on the basis that the Appellant was not provided a meaningful opportunity
to comply with the requirements of the statute because of the conditions
and circumstances in the booking center of the Cumberland County Prison,
namely the interruptions and distractions caused by another prisoner
present at the time the breath test was administered.
2. The Court erred in not sustaining the appeal by applying the
guidance presented by the decision of Broadbelt v. Cmw of Pennsylvania,
Dept. of Transp., Bureau of Driver Li[c]ensing, 903 A.2d 636
(Pa.Cmwlth,2006), a copy of which was provided to the Court by the
Appellant during argument.
3. Beyond the basis stated above which is based upon speculation
only, the Court’s error cannot be ascertained with specificity because the
reasons for the Court’s ruling are vague or not discernable from the record,
and the Court has given no indication to this point as to the basis for its
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decision.
1
Notice of Appeal, filed November 13, 2007.
2
Appellant’s Concise Statement of Matters Complained of on Appeal, filed November 26, 2007.
This opinion in support of the court’s order affirming the suspension of
Appellant’s driving privilege is written pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of an arrest for driving under the influence, Appellant
Mahmood M. Saand was transported by Pennsylvania State Police to a booking
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facility in Cumberland County. At the facility, the arresting trooper requested
that he submit to a chemical test of his breath, and read him the proper implied
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consent warning. Based upon Appellant’s failure to submit to the test, the
Pennsylvania Department of Transportation suspended his driving privilege for a
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period of one year.
Appellant filed an appeal from the suspension with this court on February
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15, 2007. A hearing on the appeal was held on May 17, 2007, and October 10,
2007. At the hearing, Appellee, the Department of Transportation, presented the
testimony of Pennsylvania State Trooper Kenneth F. Tallman, who arrested
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Appellant, and of two booking agents who were present during Appellant’s
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processing at the booking center, Shawn R. Washinger and Joshua Sheaffer; the
Department also presented evidence in the form of a DL-26 [implied consent]
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Form read to Appellant, a transcript of Appellant’s processing at the booking
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N.T. 8, Hearing, May 17, 2007.
4
N.T. 9, Hearing, May 17, 2007.
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N.T. 3, Haring, May 17, 2007.
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Appeal of Driver’s License Suspension, filed February 15, 2007.
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N.T. 3, Hearing, May 17, 2007.
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N.T. 5, Hearing, October 10, 2007.
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N.T. 29, Hearing, October 10, 2007.
10
Commonwealth’s Exhibit 1; N.T. 9-10, Hearing, May 17, 2007.
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center, and a DVD of that processing. Appellant testified on his own behalf at
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the hearing.
The evidence which the court found credible established that Appellant, a
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professor at a technical institute in Mechanicsburg, Pennsylvania, with a good
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command of the English language, was read the following information by
Trooper Tallman upon his arrival at the booking center at about 12:45 a.m. on
November 3, 2007:
1. Please be advised that you are under arrest for driving under the
influence of alcohol or controlled substance in violation of Section 3802 of
the Vehicle Code.
2. I am requesting that you submit to a chemical test of breath.
3. It is my duty as a police officer to inform you that if you refuse to
submit to the chemical test, your operating privilege will be suspended for
at least 12 months, and up to 18 months. If you have prior refusals or have
been previously sentenced for driving under the influence. In addition, if
you refuse to submit to the chemical test, and you are convicted of or plead
to violating Section 3802(a)(1) (relating to impaired driving) of the
Vehicle Code, 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, the same as if you would be convicted of driving with the highest
rate of alcohol, which include a minimum of 72 consecutive hours in jail
and a minimum fine of $1,000.00, up to a maximum of five years in jail
and a maximum fine of $10,000.
you have
4. It is also my duty as a police officer to inform you that
no right to speak with an attorney or anyone else before deciding
whether to submit to testing and any request to speak with an
attorney or anyone else after being provided these warnings or
remaining silent when asked to submit to chemical testing will
constitute a refusal,
resulting in the suspension of your operating
privilege and other enhanced criminal sanctions if you are convicted of
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violating Section 3802(a) of the Vehicle Code.
11
Commonwealth’s Exhibit 2; N.T. 3, Hearing, October 10, 2007.
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Commonwealth’s Exhibit 3; N.T. 8, Hearing, October 10, 2007.
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N.T. 32, Hearing, October 10, 2007.
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N.T. 14, Hearing, May 17, 2007; N.T. 32, Hearing, October 10, 2007.
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N.T. 11, Hearing, May 17, 2007.
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N.T. 9-10, Hearing, May 17, 2007; Commonwealth’s Ex. 1, Hearing, May 17, 2007 (emphasis
added).
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Appellant signed the Form, acknowledging his receipt of this information.
As one of the booking agents explained the procedure for the breathalyzer
test, a highly intoxicated woman in a holding cell at the facility yelled at Appellant
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to “ask for an attorney” and advised him “do not blow in that.” For more than
seven minutes, during which the breathalyzer instrument “timed out,” Appellant
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professed confusion as to his right to an attorney and failed to submit to the test,
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permitting the persistent ranting of a drunken prisoner on the issue to prevail
over repeated admonitions of a trooper and a booking agent that he did not have a
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right to an attorney. Ultimately, his conduct was deemed a refusal. During the
subsequent phase of the processing procedure, Appellant apologized to the
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operator of the instrument, remarking that “I made a mistake.”
Appellant testified on his own behalf that he had refrained from blowing
into the breathalyzer as instructed:
A Because of her statements, [the intoxicated woman’s]
statements.
Q What do you mean?
A Because she asked me not to do it.
Q Okay.
A The way she was sounding, call your attorney and don’t do it.
Q Okay.
A Don’t listen to them, something like that.
Q Right. And obviously that went on for more than 10 minutes,
correct?
17
N.T. 10, Hearing, May 17, 2007; N.T. 38, Hearing, October 10, 2007.
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N.T. 12, Hearing, May 17, 2007; N.T. 11, 14, 33, Hearing, October 10, 2007.
19
N.T. 10, Hearing, October 10, 2007.
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See N.T. 33, Hearing, October 10, 2007; Commonwealth’s Exhibit 2, Hearing, October 10,
2007.
21
See N.T. 13, 18, Hearing, May 17, 2007; N.T. 11, 26, 35-36, 39-43,Hearing October 10, 2007;
Commonwealth’s Exhibit 2, Hearing, October 10, 2007.
22
N.T. 12, Hearing, October 10, 2007.
23
Commonwealth’s Exhibit 2, Hearing, October 10, 2007, Transcript of Processing 12.
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A Yes. All the time I was sitting there, yes.
Appellant also testified that he ultimately decided he would submit to the
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test, as indicated by a statement to the agent that “I will listen to you.” However,
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by that time he was told it was too late. From the evidence, it was apparent that
Defendant and the intoxicated prisoner were not acquainted.
Subsequent to the hearing, and after considering all of the evidence
presented on the issue of the validity of Appellant’s refusal, the Court entered the
following order, from which Appellant has appealed:
AND NOW, this 11th day of October, 2007, upon consideration of
the Appeal of Driver’s License Suspension filed by Appellant in the
above-captioned matter, and following a hearing held on May 17, 2007,
and October 10, 2007, the appeal is denied, and the suspension of
Appellant’s driving privilege noticed by the Appellee by a mailing on
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February 1, 2007, is affirmed.
DISCUSSION
The law in the area of license suspensions arising out of a chemical test
refusal has been summarized by the Commonwealth Court as follows:
In order for PennDot to satisfy its initial burden of proof and make
out a prima facie case in an appeal from the suspension of driving
privileges for failure to submit to chemical testing, PennDot must establish
the following: that the licensee was arrested . . . for driving while under the
influence of alcohol; was requested to submit to chemical testing; refused
to do so, and was warned of the consequences of refusing that test.
Regarding the third element, generally, any response from a licensee that
is short of an unqualified, unequivocal assent to take the test requested
constitutes a refusal and requires the one-year suspension of the motorist’s
operating privileges.
Wilt v. Commonwealth of Pennsylvania, Department of Transportation, 711 A.2d
590, 591-92 (Pa. Commw. Ct. 1998) (citations omitted).
“In proving whether a licensee refused to submit to chemical testing, DOT
has the burden of showing that the licensee was offered a meaningful opportunity
24
N.T. 33, Hearing, October 10, 2007.
25
N.T. 36, Hearing, October 10, 2007; Commonwealth’s Exhibit 2, Hearing, October 10, 2007,
Transcript of Processing, 11.
26
Commonwealth’s Exhibit 2, Hearing, October 10, 2007, Transcript of Processing 13.
27
Order of Court, October 11, 2007.
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to comply with [the chemical test provision of the Vehicle] Code.” Broadbelt v.
Commonwealth of Pennsylvania, Department of Transportation, 903 A.2d 636,
640 (Pa. Commw. Ct. 2006) (citations omitted). However, “police officers are not
required to spend effort either cajoling the licensee or spend time waiting to see if
the licensee will ultimately change his mind.” King v. Commonwealth of
Pennsylvania, Department of Transportation, 828 A.2d 1, 5 n.8 (Pa. Commw. Ct.
2002).
Upon the Department’s establishment of a prima facie case as aforesaid, the
burden shifts to the licensee to prove “that the refusal was not knowing or
conscious or that the licensee physically was unable to take the test.” Id.; see
Pappas v. Commonwealth of Pennsylvania, Department of Transportation, 669
A.2d 504 (Pa. Commw. Ct. 1996).
In Broadbelt v. Commonwealth of Pennsylvania, Department of
Transportation, 903 A.2d 636 (Pa. Commw. Ct. 2006), the Pennsylvania
Commonwealth Court upheld a lower court’s rejection of a licensee’s position that
his failure to submit to a chemical test resulted, in part, from distractive conduct of
another person in the room at the time of the request. In holding that the police
had fulfilled their obligation to advise the licensee of the requisite information, the
Court further concluded that the licensee had been given “a meaningful
opportunity to comply with [the chemical test provision of the Vehicle Code] and
that his silence constituted a refusal [to submit to the test].” Id. at 641.
In the present case, based upon the facts recited above, the Commonwealth,
in the court’s view, clearly met its burden of showing that Appellant was arrested
for driving under the influence of alcohol, was requested to submit to chemical
testing, was warned of the consequences of refusing the test, and failed to submit
to the test within a reasonable period of time. Notwithstanding Appellant’s
testimony to the contrary, the court was further of the view that the effective
refusal was a consequence not of the absence of a meaningful opportunity to
comply with the trooper’s request but of his own decision to temporize based on
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the advice of an intoxicated prisoner with whom he was not acquainted. Finally, it
did not appear to the court that the Commonwealth Court’s affirmance of the
allegedly distracted licensee’s suspension in Broadbelt, supra, compelled a
different result.
Accordingly, the court entered the order, from which Appellant has
appealed, affirming Appellee’s suspension of his driving privilege.
BY THE COURT,
________________
J. Wesley Oler, Jr., J.
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Appellant
George Kabusk, Esq.
Assistant Counsel
Department of Transportation
3rd Floor, Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
Attorney for Respondent
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