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HomeMy WebLinkAbout2007-6908 Civil TROY S. ULZHEIMER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION, BUREAU OF : DRIVER LICENSING : 07-6908 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND ORDER OF COURT Bayley, J., February 26, 2008:-- PennDOT suspended the driving privilege of Troy S. Ulzheimer for eighteen months for failure to submit to a chemical test of his blood following his arrest for driving under the influence. Ulzheimer filed this appeal on which a hearing was conducted on February 13, 2008. We find the following facts. On November 23, 2007, Officer James Miller of the Upper Allen Township Police Force was on patrol in the Township on Route 15. At 2:44 a.m., he stopped a vehicle after observing weaving and erratic driving over a considerable distance. The driver was Troy Ulzheimer. While Officer Miller was talking to Ulzheimer when he was still inside the vehicle, he smelled an odor of alcohol. Ulzheimer had bloodshot and glassy eyes, his speech was slurred, and he fumbled with his cards. He told the officer that he drank two beers in downtown Harrisburg. The officer had Ulzheimer get out of the vehicle. He had an unsteady gait. He failed a walk-and-turn test and registered a 0.16 on a preliminary breath test. Officer Miller arrested him for driving under the influence, handcuffed him, and had him get into the backseat of his patrol car. While Officer Miller was reading Implied Consent warnings to Ulzheimer off a card he carries with 07-6908 CIVIL TERM him, a radio station came on and Ulzheimer told the officer that he could not hear him. Officer Miller turned off the radio and started again, reading Ulzheimer the full Implied Consent warnings, after which he asked him for a blood test. Ulzheimer said, “I’m not doing nothing, and I’m not listening.” Just before leaving for a booking center 1 Ulzheimer told the officer that he did not refuse. On the way to the booking center, Ulzheimer said several times that he had not refused to take a test. After arriving at the booking center, Officer Miller read the following Implied Consent warnings to Ulzheimer as follows: 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. I am requesting that you submit to a chemical test of blood 2. (blood, breath or urine. Officer chooses the chemical test). if you refuse to 3. It is my duty as a police officer to inform you that 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. 4. It is also my duty as a police officer to inform you that you have 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 __________ 1 If Ulzheimer had consented to a blood test, Officer Miller would have taken him to a hospital. -2- 07-6908 CIVIL TERM suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle 2 Code. (Emphasis added.) After Officer Miller finished, Ulzheimer asked him if he could read the warnings, which he did. Ulzheimer then asked for a lawyer. Officer Miller then asked Ulzheimer to sign the warning statement, which he did. The document sets forth: I certify that I have READ the above warning to the operator regarding and gave the operator an the suspension of their operating privilege opportunity to submit to chemical testing. (Emphasis added.) Signature of Officer: James R. Miller Date: 10-6-07 I have been advised of the above. Signature of Operator: Troy Ulzheimer Date: 10-6-07 Operator refused to sign, after being advised. Signature of Officer: Date: Officer Miller then signed the following affidavit: AFFIDAVIT 1. The above operator was placed under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code, and there were reasonable grounds to believe that the above operator had been driving, operating or in actual physical control of the movement of a vehicle while in violation of Section 3802. 2. The above operator was requested to submit to chemical testing as authorized by Section 1547 of the Vehicle Code. The above operator was read by a police officer of the chemical 3. test warnings contained in paragraph 3 and 4 above. The above named operator refused to submit to chemical testing 4. after having been read the above warnings. OFFICER NOTE: The refusal to sign this form is not a refusal to submit You must still give the operator an opportunity to to the chemical test. take the chemical test after reviewing this form. If the individual was operating a commercial motor vehicle while having any alcohol or a controlled substance in their system, you must also complete the reverse __________ 2 These were the same warnings that Officer Miller read to Ulzheimer at the scene of the stop. -3- 07-6908 CIVIL TERM side of this form. I certify that all information given in this form is true and correct. (Emphasis added.) Officer Signature: James R. Miller Contrary to Officer Miller’s affidavit, Ulzheimer did not refuse to submit to chemical testing after he had just read to him the “above warning.” Ulzheimer was not given an opportunity to take a blood test, or any other chemical test, at the booking 3 center. Rather, he was booked. Officer Miller testified that the only reason he read the Implied Consent warnings to Ulzheimer at the booking center, and asked him to sign the consent, was that it was a matter of procedure. The Vehicle Code at 75 Pa.C.S. Section 1547(b)(1), provides: If any person placed under arrest for a violation of section 3808 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted; but, upon notice by the police officer, the department shall suspend the operating privilege of the person as follows: * * * (ii) For a period of 18 months . . . Section (b)(2) provides: It shall be the duty of the police officer to inform the person that the person’s operating privileges will be suspended upon refusal to submit to chemical testing. Commonwealth of Pennsylvania, Department of Transportation v. In Renwick, 669 A.2d 934 (Pa. 1996), Betty Renwick was arrested for driving under the influence. She was taken to a hospital where a police officer read to her Implied Consent warnings, and then sought to have blood drawn to determine her blood __________ 3 There was an Intoxilyzer at the booking center. -4- 07-6908 CIVIL TERM alcohol content. The officer asked Renwick to sign the consent form on two different -5- 07-6908 CIVIL TERM occasions. She ignored the officer and turned her head. Another officer arrived and read the consent form to Renwick. When he requested that she submit to a blood test, Renwick closed her eyes and turned her face away. She did not respond when the officer asked her if she understood him. When the officer again asked her if she would consent to a blood alcohol test, she did not respond. The officer informed Renwick that her silence would be considered a refusal to submit to the blood test, resulting in the suspension of her license for twelve months. Renwick then stated that she would submit to the test. The officer handed her the consent form and requested that she read it and sign it. Renwick stated that she could not lift her arm to sign the form. The officer told her that if she did sign the form, he would consider her action a refusal to submit to the blood test. Renwick did not sign the form and the officer informed her that her action was a refusal. Shortly thereafter, the officer observed Renwick sign a hospital treatment form presented by a nurse. After her operating privilege was suspended for refusing a blood test, Renwick filed an appeal. A trial court dismissed the appeal, concluding that Renwick’s actions were so inconsistent with her purported verbal assent that they constituted a de facto refusal of the test. The Commonwealth Court reversed. The Supreme Court granted allocatur to clarify whether a licensee’s refusal to sign a police consent form establishes a refusal to submit to chemical testing. The Court noted that Section 1547(b)(1) does not expressly require written consent to submit to chemical testing. In reversing the Commonwealth Court and reinstating the order of the trial court, the -6- 07-6908 CIVIL TERM Supreme Court concluded: We continue to adhere to the established law providing that anything less than an unqualified, unequivocal assent constitutes a refusal under § 1547. Although Appellee’s refusal to sign the consent form does not, in and of itself, constitute refusal to take the chemical test, the facts dictate that Appellee’s overall conduct demonstrated a refusal. Appellee was requested to submit to the chemical testing several times by two separate officers. Appellee responded by closing her eyes, turning her head and ignoring the request. In a fleeting moment, Appellee then stated that she would assent to the test. Such gamesmanship is not to be countenanced by the jurisprudence of this Commonwealth and does not promote the interests underlying the Implied Consent Law. . . . [U]nder the circumstances of this case, there was no issue as to whether [Appellee’s] response related to the chemical test or the implied consent form that she was requested to sign. The record reveals that when [Appellee] was requested to sign the implied consent form on at least two occasions, she turned her head away from the officer and refused to respond to him. Because [Appellee’s] actions were so completely inconsistent with her purported verbal assent to the chemical test, the Court concluded that such actions constituted a de facto refusal of the test. In conclusion, although we agree with the Commonwealth Court that a refusal to sign a consent form does not constitute a refusal to submit to testing, we find that Appellee’s overall conduct demonstrated a refusal. (Citations omitted.) Section 1547 of the Vehicle Code was last amended in 2006, and there is still no provision in the statute that expressly requires written consent to submit to chemical testing. Because Ulzheimer was read the Implied Consent warnings at the scene of the stop, and did not unequivocally assent to taking a blood test that was requested by Officer Miller, that constitutes a legal basis for the suspension of his operating Renwick privilege. As in , his repeated statements that he did not refuse a test, in this case after he said “I’m not doing nothing, and I’m not listening,” was gamesmanship. What occurred at the booking center is of no legal import. Accordingly, the following -7- 07-6908 CIVIL TERM order is entered. -8- 07-6908 CIVIL TERM ORDER OF COURT AND NOW, this _________ day of February, 2008, the within appeal from the IS DISMISSED. suspension of a driving privilege, By the Court, Edgar B. Bayley, J. George Kabusk, Esquire For the Department of Transportation Bryan M. McQuillan, Esquire For Petitioner :sal -9- TROY S. ULZHEIMER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION, BUREAU OF : DRIVER LICENSING : 07-6908 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE ORDER OF COURT AND NOW, this _________ day of February, 2008, the within appeal from the IS DISMISSED. suspension of a driving privilege, By the Court, Edgar B. Bayley, J. George Kabusk, Esquire For the Department of Transportation Bryan M. McQuillan, Esquire For Petitioner :sal