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HomeMy WebLinkAbout2007-5844 Civil BRIAN K. KUNKLEMAN : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION, BUREAU OF : DRIVER LICENSING : 07-5844 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND ORDER OF COURT Bayley, J., February 19, 2008:-- PennDOT suspended the driving privilege of Brian Keith Kunkleman for eighteen months and his commercial driving privilege for one year for refusing to submit to a chemical test of his blood alcohol content following his arrest for driving under the influence. Kunkleman filed this appeal upon which a hearing was conducted on February 13, 2008. We find the following facts. On August 4, 2007, at 1:31 a.m., Trooper Michael Burns of the Pennsylvania State Police observed a vehicle being operated in front of him on Fayette Street in Southampton Township, Cumberland County. On three separate occasions within one- eighth of a mile the vehicle swerved over the fog line, the last time almost striking a bridge abutment. Trooper Burns activated his lights and sirens on his patrol car, but the vehicle did not stop. The trooper activated his audio system and told the driver to stop. The vehicle continued over at least three miles before it turned into a driveway and stopped. The driver was Brian K. Kunkleman and the driveway led to his home. Trooper Burns and his partner Trooper Barker went up to the vehicle where Burns ordered Kunkleman to get out. Kunkleman refused. Burns opened the front door and 07-5844 CIVIL TERM Kunkleman grabbed the steering wheel. Trooper Burns smelled a strong odor of alcohol. A struggle ensued with Kunkleman continuing to hold onto the steering wheel while Burns tried to get him out of the vehicle. Burns maced him and dragged him out. Kunkleman’s resistance continued. He was maced again and finally the troopers were able to get him handcuffed and into custody and under arrest for driving under the influence and speeding and eluding a police officer. Kunkleman was punched during this melee, he was hit with a truncheon, and he suffered some abrasions on his face. The troopers drove him to the Chambersburg Hospital. On the way, Kunkleman made an unsolicited statement that he had injured his ribs while cutting firewood on a previous date. At the hospital, at 2:33 a.m., Trooper Burns read the Implied Consent warnings to Kunkleman and asked to take a blood test. Kunkleman said he did not understand the warnings. He complained of pain in his abdominal area and ribs and asked for painkillers. The medical staff wanted Kunkleman to take a shower to dissipate the effects of the mace. He took a shower. At 3:12 a.m., he was again read his Implied Consent warnings. He answered the same way, and he would not consent to a blood test. Kunkleman raises one issue, maintaining that the extent of the injuries he had when he was asked to undertake a blood test were so obvious that we should find that he was not capable of making a knowing and conscious refusal to take the test. In Lemon v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 763 A.2d 534 (Pa. Commw. 2000), the Commonwealth Court of -2- 07-5844 CIVIL TERM Pennsylvania stated: . . . [w]here a licensee suffers from a medical condition that affects his ability to perform the test and that condition is not obvious, the finding that a driver was unable to take the test for medical reasons must be supported by competent medical evidence. Barbour v. Commonwealth of Pennsylvania, Department of In Transportation, Bureau of Driving Licensing, 732 A.2d 1157 (Pa. 1999), the Supreme Court of Pennsylvania stated: In a license suspension case, the burden of proof is placed first on the Commonwealth. In order to meet its burden, “the Commonwealth must establish that the driver involved: (1) was arrested for driving under the influence of alcohol; (2) was asked to submit to chemical testing; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his driver’s license.” Commonwealth, Dept. of Transportation v. Ingram, 538 Pa. 236, 648 A.2d 285, 293 (1994). If the Commonwealth meets its burden on all four of these prongs, then the burden shifts to the licensee to prove that he was not capable of making a knowing and conscious refusal to take the test. Id. The determination of whether a licensee was able to make a knowing and conscious refusal is a factual one which is to be made by the trial court. O’Connell, 555 A.2d at 876. * * * The Commonwealth Court has held that where the Commonwealth has established the four Ingram factors that a licensee may prevent his license from being suspended only if he can establish by “competent medical evidence” that a medical condition, unrelated to the consumption of alcohol, rendered his refusal unknowing. See Commonwealth, Dept. of Transportation v. Peck, 132 Pa.Cmwlth. 509, 573 A.2d 645, 647 (1990). Over the years, the Commonwealth Court has refined its interpretation of what constitutes “competent medical evidence” in this arena so that it now requires that the expert medical testimony must be certain and essentially without doubt in order for it to be sufficient to establish that the licensee’s refusal was unconscious and unknowing. See, e.g., Plotts v. Commonwealth, Dept. of Transportation, 660 A.2d 133 (Pa. Commw.Ct. 1995) and Commonwealth, Dept of Transportation v. Monsay, 142 -3- 07-5844 CIVIL TERM Pa.Cmwlth. 163, 596 A.2d 1269 (1991). The Supreme Court then defined this test by holding that a reasonable degree of medical certainty standard is applicable in the license revocation arena. sub judice, At the hearing in the case Kunkleman did not call a medical expert to offer any opinion as to whether he suffered from injuries at the time he was asked to take the blood test such that he was not capable of making a knowing and conscious refusal. From the evidence presented at the hearing, the extent of any injuries to Kunkleman were not so obvious that we could conclude that he was not capable of making a knowing and conscious refusal to take a blood test. Therefore, the following order is entered. ORDER OF COURT IS AND NOW, this _________ day of February, 2008, the within appeal, DISMISSED. By the Court, Edgar B. Bayley, J. George Kabusk, Esquire For the Department of Transportation Patrick F. Lauer, Jr., Esquire For Petitioner :sal -4- BRIAN K. KUNKLEMAN : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION, BUREAU OF : DRIVER LICENSING : 07-5844 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE ORDER OF COURT IS AND NOW, this _________ day of February, 2008, the within appeal, DISMISSED. By the Court, Edgar B. Bayley, J. George Kabusk, Esquire For the Department of Transportation Patrick F. Lauer, Jr., Esquire For Petitioner :sal