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HomeMy WebLinkAbout98-6683 CivilCOMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTA~'ION, BUREAU OF DRIVER LICENSING, Appellee Vo BRIAN KEITH KUNKLEMAN, Appellant · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION -- LAW · No. 98-6683 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL BEFORE OLER, J. ORDER OF COURT AND NOW, this 16th day of April, 1999, upon consideration of Appellant's Appeal from Suspension of Operator's Privilege, following a hearing and for the reasons stated in the accompanying opinion, the appeal is denied and Appellee's suspension of Appellant's driving privilege for a period of one year, by notice dated November 13, 1998, is affirmed. Patrick F. Lauer, Jr., Esq. Aztec Building 2108 Market Street Camp Hill, PA 17011 Attorney for Appellant George H. Kabusk, Esq. Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Appellee BY THE COURT, JT~sleY Oler(~., j. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee BRIAN KEITH KUNKLEMAN, Appellant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA . · CIVIL ACTION -- LAW · No. 98-6683 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., April 16, 1999. In this license suspension appeal, Appellant has appealed fi.om a notice of suspension arising out of his refusal to submit to a chemical test to determine the alcoholic content of his blood.~ The issue being pursued by Appellant is whether a sufficient implied consent warning was given prior to the refusal.2 A hearing on the appeal was held on February 18, 1999. For the reasons stated in this opinion, the suspension must be upheld. STATEMENT OF FACTS On Thursday, October 29, 1998, Appellant was placed in custody by police at the scene of an accident on the Baltimore Road in Southampton Township, Cumberland County, ~ See Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 1547 (Main Vol. & 1998 Supp.). 2 See Memorandum in Support of Appellant's Appeal t~om Suspension of Operator' s Privilege, filed March 12, 1999. A second issue, whether a reasonable basis existed for a request of Appellant to submit to the chemical test, has not been pursued by Appellant. See id. Pennsylvania.3 Appellant's apprehension occurred following an automobile chase by officers of the Mid-Cumberland Valley Regional Police Department.4 Based on various observed indicia of alcohol consumptions and on information received from another officer as to the pursuit of Appellant and the circumstances of his arrest,6 Officer Michael Rinaldi of the Mid-Cumberland Valley Regional Police Department requested that Appellant submit to a chemical test to determine the alcoholic content of his blood.7 Appellant was read the following information from a Pennsylvania Department of Transportation DL-26 Form: Please be advised that you are now under arrest for Driving under the Influence of alcohol or a controlled substance pursuant to Section 3731 of the Vehicle Code. I am requesting that you submit to a chemical test of blood/urine. 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 a period of one year. The constitutional rights you have as a criminal defendant, commonly known as Miranda rights, including the right to speak to a lawyer ... and the right to remain silent, apply only to ... criminal prosecutions and do not apply to the chemical testing procedure under the Pennsylvania Implied Consent Law, which is a civil, not a criminal proceeding. You have no right to speak to a lawyer, or anyone else, before taking the chemical test requested by the police officer nor do you have a right to remain silent when asked by the police officer to submit to the chemical test. Unless you agree 3 N.T. 4-5, 10-11, Hearing, February 18, 1999 (hereinafter N.T. 4 N.T. 8, 32-33. SN.T. 11. 6 N.T. 10. 7N.T. 12. o 2 to submit to the test requested by the police officer, your conduct will be deemed ... to be a refusal and your operating privileges will be suspended for one year .... [Y]our refusal to submit to chemical testing under the Implied Consent Law may be introduced into evidence in a criminal prosecution for Driving under the Influence of alcohol or a controlled substance? Appellant was a tmck driver and had a commercial driver's license? Officer Rinaldi encouraged Appellant to submit to the chemical test, "repeatedly explain[ing] to him that he may or could be disqualified fi.om obtaining a CDL [commercial driver's license~°] ... if he refused to submit to the chemical testing and that his license would be suspended for a period of one year for refusing to submit to the chemical test.''t~ He also told Appellant that "an employer could have negative feelings towards having somebody working for them who had their license disqualified.''~2 Corporal Jeffrey Shubert of the Mid-Cumberland Valley Regional Police Department also encouraged Appellant to submit to the chemical test. According to Corporal Shubert, [A]ppellant said, I don't want to take the blood test because it's going to affect my commercial driver's license. He says, I'm already screwed. You already have me. There's no use in pursuing this any further. There's no reason for me to take a blood test because I'm already going to be charged with Driving 8 N.T. 36-38; see Commonwealth's Exhibit 1 (DL-26 Form). 9N.T. 11-12. ~o See Act of May 30, 1990, P.L. 173, § 8, as amended, 75 Pa. C.S. §§ 1601 et seq.(Main Vol. & 1998 Supp.). ~t N.T. 12-13. ~2 N.T. 23. According to the recollection of a second officer present, Officer Rinaldi told Appellant that a test refusal would not affect his CDL license. N.T. 47. To the extent that the recollections of the officers were inconsistent, the court accepted Officer Rinaldi's version of what he said as being more accurate. under the Influence. And in doing so, it's going to ruin my CDL. And he was worried about, he won't be able to work anymore because 'he's going to lose his CDL license. I explained to the subject that it's not going to affect his CDL because he was not driving a commercial vehicle at the time? In spite of the attempts by police to convince Appellant to submit to a chemical test, he refused? Notice of the refusal was submitted to the Pennsylvania Department of Transportation. t s By notice dated November 13, 1998, Appellee suspended Appellant's driving privilege for a period of one year pursuant to Section 1547(b) of the Vehicle Code.t6 Appellant appealed from the notice of suspension on December 1, 19987 As noted previously, a heating was held on the matter on February 18, 1999. Appellant did not testify at the hearing. In a brief submitted in support of the appeal, Appellant argues that he "was improperly instructed as to the consequences of his refusal to submit to a chemical test and therefore his actions did not constitute a refusal.''tS More specifically, Appellant contends that he was informed by one police officer that his CDL would be disqualified by [his] refusal to submit to chemical testing. Appellant was also informed that he would never get a job if he refused. Subsequently, another officer informed the Appellant that refusal would not affect his CDL. Additionally, this second 13 N.T. 35. ~4 N.T. 13, 35. ts N.T. 36. t6 N.T. 3; see Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 1547(b). t7 Appeal from Suspension of Operator's Privilege, filed December 1, 1998. is Memorandum in Support of Appellant's Appeal from Suspension of Operator's Privilege, submitted March 12, 1999, at 4. 4 officer also testified that the first officer never mentioned a CDL license.~9 "[B]y providing the Appellant with conflicting statements, the officers created circumstances which misled the Appellant and denied him of his opportunity to make an informed and knowing decision to take the test." Memorandum in Support of Appellant's Appeal from Suspension of Operator's Privilege, submitted March 12, 1999, at 6. DISCUSSION "[I]n license suspension cases under Section 1547(b) of the Vehicle Code, the Commonwealth must establish that the driver involved: (1) was arrested for driving while under the influence of alcohol; (2) was asked to submit to a [chemical] test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his driver's license." Commonwealth of Pennsylvania, Department of Transportation v. O'Connell, 521 Pa. 242, 248-49, 555 A.2d 873, 876 (1989). A proper O'Connell warning also includes the advice that one's Miranda rights do not apply to chemical testing. Commonwealth of Pennsylvania, Department of Transportation v. Ingrain, 538 Pa. 236, 648 A.2d 285 (1994). "Once the Commonwealth meets its burden, it is the driver's responsibility to prove that he was not capable of making a knowing and conscious refusal to take the test." Commonwealth of Pennsylvania, Department of Transportation v. O'Connell, 521 Pa. 242, 249, 555 A.2d 873, 876 (1989). In addition, a misapprehension or confusion on the part of a motorist who refuses to submit to a chemical test will generally not afford a basis for relief if the refusal can not arguably be attributed to the misapprehension or confusion. Thus, this court has upheld license suspensions challenged on the ground of confusion on the part of the motorist, where ~9Id., at 6. it was clear that the test refusal resulted from a fear of needles2° or from a personal belief unrelated to the implied consent warning? In license suspension cases, "questions of credibility and conflicts in the evidence are for the trial court to resolve." Commonwealth of Pennsylvania, Department of Transportation v. Ingrain, 538 Pa. 236, 252, 648 A.2d 282, 293 (1994). With respect to commercial driver's licenses, the Uniform Commercial Driver's License Act, which has been adopted in Pennsylvania,22 provides as follows, inter alia: Upon receipt of [al swom report of a police officer [of a chemical test refusal] ... the department shall disqualify the driver from driving a commercial motor vehicle for a period of one year.23 Each driver .of a commercial motor vehicle whose operating privilege is suspended, revoked or canceled by any state, who loses the privilege to drive a commercial motor vehicle in any state for any period or who is disqualified from driving a commercial motor vehicle for any period, shall notify his employer of that fact before the end of the business day following the day the driver received notice of the suspension, revocation, cancellation, loss or disqualification?4 2o Curry v. Commonwealth of Pennsylvania, Department of Transportation, No. 97- 0680 Civil Term (July 10, 1997). 2~ Milford v. Commonwealth of Pennsylvania, Department of Transportation, No. 98- 407 Civil Term (May 21, 1998). 22 Act of May 30, 1990, P.L. 173, 8 8, as amended, 75 Pa. C.S. 88 1601 etseq. (Main Vol. & 1998 Supp.). 23 Id., 8 1613(e). 24Id., 8 1604(b). 6 No person shall drive a commercial motor vehicle during any period in which ... his operating provision is suspended, revoked, canceled were recalled until the person's operating privilege has been restored .... 2s Upon receipt of a certified copy of conviction, the department shall, in addition to any other penalties imposed under this title, disqualify any person from driving a commercial motor vehicle for a period of one year for the first violation of ... section 3731 (relating to driving under the influence of alcohol or controlled substance), where the violation occurred while the person was operating a commercial motor vehicle .... 26 In the present case, the gist of the advice given by Officer Rinaldi concerning Appellant's commercial driver's license was that Appellant should submit to the chemical test, because a disqualification could result from a refusal and employers could look unfavorably upon employees so affected. The officer's assessment of the attitude of employers toward such employees, whether correct or incorrect, did not result in Appellant's submission to the test, nor can it be said to have caused him to refuse to submit to the test. The gist of the advice given by Corporal Shubert regarding Appellant's commercial driver's license was that he should submit to the chemical test, because his belief that any resultant conviction for driving under the influence would affect his commercial driver's license was mistaken. Since Appellant was not driving a commercial vehicle at the time of the incident, this information as to the law was correct? Again, the advice did not have the desired effect of causing Appellant to submit to the chemical test, nor can it be said to have caused him to refuse to submit to the test. 2s Id., § 1606(c)(1)(ii). 26 Id., § 161 l(a)(1) (emphasis added). 27 ~.~ee text accompanying note 26 supra. 7 The court is of the view that proper O'Connell warnings were given to Appellant, that the advice given by police as to his commercial driver's license was neither incorrect in a legal sense nor productive of his refusal to submit to a chemical test, and that Appellant understood that a consequence of his refusal to submit to the test would be the loss of his privilege to drive any motor vehicle for a year. For these reasons, the following order will be entered: ORDER OF COl IRT AND NOW, this 16th day of April, 1999, upon consideration of Appellant's Appeal from Suspension of Operator's Privilege, following a hearing and for the reasons stated in the accompanying opinion, the appeal is denied and Appellee's suspension of Appellant's driving privilege for a period of one year, by notice dated November 13, 1998, is affirmed. BY THE COURT, Patrick F. Lauer, Jr., Esq. Aztec Building 2108 Market Street Camp Hill, PA 17011 Attorney for Appellant George H. Kabusk, Esq. Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Appellee /s/J. Wesley Oler. Jr. J. Wesley Oler, Jr., J.