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HomeMy WebLinkAbout98-0407 Civil MEGAN A. MILFORD, Petitioner/Appellant V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent/Appellee : IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA. · CIVIL ACTION -- LAW · NO. 98407 CIVIL TERM ' LICENSE SUSPENSION APPEAL IN RE: LICENSE SUSPENSION APPEAL BEFORE OLER, J. ORDER OF COURT AND NOW, this 7..[~ day of May, 1998, after careful consideration of Appellant's license suspension appeal, 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 December 25, 1997, is AFFIRMED. David E. Hershey, Esq. Attorney for Appellant George Kabusk, Esq. Attorney for Appellee BY THE COURT, MEGAN A. MILFORD, Petitioner/Appella. nt Vo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent/Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -- LAW : NO. 98-407 CIVIL TERM : LICENSE SUSPENSION APPEAL IN RE: LICENSE SUSPENSION APPEAL BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., May 21, 1998. This is a license-suspension appeal in which Appellant appeals from a one-year suspension of her driving privilege based upon an alleged chemical test refusal. The grounds for the appeal are as follows: a. Petitioner was not advised of the rights contained in Penn DOT form DL 26 prior to the booking officer indicating that her conduct was a refusal; b. Petitioner was not properly advised of her OLConneH warnings; c. Petitioner was not properly advised under Section 1547 as to the length of the suspension for refusing chemical testing; d. The information given by the booking officer in this case was misleading and confusing and not in accordance with case law pertaining to warnings under the implied consent law. e. The suspension is otherwise invalid pursuant to statutory case law; and f. The alleged refusal of Petitioner to take a breath test was not knowingly, voluntarily and intelligently made.' A hearing was held on Appellant's appeal on Thursday, April 9, 1998. Pursuant to an agreement of counsel, the record was supplemented by the filing on May 7, 1998, of a transcript of the audio portion of a videotape made at a Cumberland County booking center where Appellant was taken for purposes of administration of the test.z For the reasons stated in this opinion, the court is constrained to deny Appellant's appeal and sustain Appellee's suspension of her driving privilege. FiNDINGSDF~ACTS 1. Appellant is Megan A. Milford, an adult'individual residing at 116 Easterly Drive Mechanicsburg, Cumberland County, Pennsylvania? 2. Appellee is the Commonwealth of Pennsylvania, Department of Transportation. 3. By notice dated December 25, 1997, Appellee suspended Appellant's driving privilege pursuant to Section 1547(b)(1) of the Vehicle Code4 for a period of one year.5 4. The suspension resulted from an alleged chemical test refusal by Appellant, following her arrest for driving under the influence on Saturday, November 29, 1997.6 5. The arrest occurred in the Borough of Mechanicsburg in Cumberland County at about 1:50 a.m., after borough police received information by way of a citizen's report, I Appellant's License Suspension Appeal, paragraph 5. z See Transcript of Videotape (Tape Played During License Suspension Hearing) and Letter of Concurrence Re: Authenticity/Accuracy of Videotape Transcript, filed May 7, 1998. 3 Commonwealth's Exhibit 2, Hearing, April 9, 1998 (hereinafter Commonwealth's Exhibit ). Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 1547(b)(1). Commonwealth's Exhibit 2. 6/d. 2 located and followed Appellant's Lincoln automobile, and confirmed that she was driving erratically. 6. Mechanicsburg Borough Patrolman Donald S. Siekerman transported Appellant to the West Shore Booking Center in Cumberland County. 7. Patrolman Siekerman read the following information to Appellant from a clipboard in the booking center: 1. 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. 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 s~pended for a period of one year. a) The constitutional rights you have as a criminal defendant, commonly known as the Miranda Rights, including the fight to speak with a lawyer and the right to remain silent, apply only to eriminai prosecutions and do not apply to the chemical testing procedure under Pennsylvania's Implied Consent Law, which is a civil,'not a criminal proceeding. b) 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 to submit to the test requested by the police officer your conduct will be deemed to be a refusal and your operating privilege will be suspended for one year. c) Your refusal to submit to chemical testing under the Implied Consent Law may be introduced into evidence in a criminal prosecution for driving while under the influ6nce of alcohol or a controlled substance. 8. Appellant was interviewed by Kathleen Cook of the booking center, who was 3 certified to administer the breath test. 9. Ms. Cook advised Appellant of her Miranda rights before interviewing her. Appellant stated that she undecstood those rights, but declined to acknowledge this by a signature and insisted upon speaking with her boyfriend.7 10. Ms. Cook proceeded to administer several field sobriety tests to Appellant.8 11. After submitting to the field sobriety tests, Appellant answered several questions for Ms. Cook. Among other things, she denied that she had been drinking? 12. When Ms. Cook advised Appellant that she was going to administer the breath test, the following exchange occurred: APPELLANT: MS. COOK: APPELLANT: MS. COOK: APPELLANT: MS. COOK: APPELLANT: MS. COOK: I don't have to do this. Huh? I don't have to do this. Yea. No I don't. Megan, yea you do. No I don't. Megan, the officer brought you here with the intent that you're going to do this. I want to talk to my boyfriend before I do APPELLANT: this. MS. COOK: No, you don't have the right to talk to anyone before you do this. N.m. 7 N.T. 1-4, Transcript of Booking Center Interview, November 29, 1998 (hereinafter , Booking Center Transcript). 8 N.T. 4-7, Booking Center Transcript. 9 N.T. 7-11, Booking center Transcript. 4 APPELLANT: I have a right to talk to a lawyer. MS. COOK: Megan, if the subject refuses to take the breath test, the processing officer will advise. You have been arrested for driving under the influence of alcohol or a controlled substance. You have been brought here by the officer so that tests of your breath may be administered to you. Under Pennsylvania law you have implied consented, you have impliedly consented to subject, to tests by driving, operating, or being in physical control or the movement of a motor vehicle. That means when you get a drivers license you're automatically are covered under this law which means that if you refuse to submit to the breath test your operating privileges will be suspended automatically by the Department of Transportation for a period of one year or more. APPELLANT: Well I have to call my boyfriend because I don't understand this. MS. COOK: What, it's real -- APPELLANT: I was with him. MS. COOK: If you don't take the test, Megan, your license will automatically be taken away for at least one year. That's exactly what it means. It's plain and simple. APPELLANT: Well I don't understand because other people get their license taken away. MS. COOK: Well that's the way it is, if you refuse to take the breath test your license will be taken away. APPELLANT: Can I call my boyfriend? MS. COOK: No. APPELLANT: Why? MS. COOK: Because you don't have a right to call anyone or do anything insofar as the test or anything like that. APPELLANT: Well see I don't understand that. Why can't I call -- Why can't I call my boyfriend? 13. MS. COOK: This is -- APPELLANT: MS. COOK: APPELLANT: MS. COOK: You were the Because he has nothing to do with this. one He certainly does. No he does not. He's been with me forever Well, that's fine. But this is with you okay. who was arrested for driving under the influence. And if you don't take the breath test, your license will automatically be suspended for at least a year so that's -- APPELLANT: I've never been ever ever stopped before in my whole entire life -- before tonight. MS. COOK: Well that's APPELLANT: Yea but for a whole year? APPELL,~IT: Now how come all these other people just get stopped for like -- MS. COOK: Megan, I don't have the time to debate this. Are you going to take the breath test? APPELLANT: No I'm not? The exchange between Appellant and Ms. Cook continued a~ follows: MS. COOK: Okay. You do understand that your license will be taken away for at least one year. APPELLANT: No I don't understand why my license will be taken away for a year. MS. COOK: I just read to you because when you get a license, when you get a driver's license, that's all part of -- Nobody gets their license taken away for a APPELLANT: year MS. COOK: I can't speak for other people. I'm speaking for what -- what's going on here right now. That's the law ~0 N.T. 11-15, Booking Center Transcript. 6 APPELLANT: I don't understand why I am somebody that has been like -- I have-been in front of the law for years, and years and years and years and and I do the good thing and these people are allowed to do something and you can, you can, you can pull my license for a year but these other people that you don't really care about [unintelligible]. MS. COOK: you? But you do understand what I just read to APPELLANT: No I don't understand. Because I don't understand why, me. MS. COOK: Because it's the law Megan. APPELLANT: No it's not the law because it's really funny how the law seems to work in such different ways. MS. COOK:. ~ Okay, I'll give yOu one more chance. By refusing to do this test your license will automatically be taken away from you for one year at least. APPELLANT: MS. COOK: the test? Because I made a mistake one night. That's right. Now, are you willing to take APPELLANT: All these -- MS. COOK: Megan, are you willing to take the breath test or not knowing what I just told you about your license being taken away for a year. APPELLANT: No I'm not. MS. COOK: Okay. APPELLANT: Because I feel that's wrong. All these other people do it and they get away with it and gee, and here I make one mistake and I'm supposed to pay for it. That's really sad. That's really sad. [unintelligible]~ H N.T. 14-15, Booking Center Transcript. 14. Appellant's refusal to consent to a chemical test to determine her blood alcohol content was a result of a reluctance to proceed without consulting an acquaintance and a reluctance to believe that a suspension would be fair in her case. 15. Appellant was clearly and correctly told prior to her refusal that she did not have a right to consult her friend in connection with the test and that a license suspension of at least one year was the legal consequence of a test refusal. 16. Appellant's refusal to consent to submit to a chemical test of her blood acohol content was knowing, intelligent and voluntary. Statement of law. To support a license suspension under Section 1547(b)(1) of the Vehicle Code, the Department of Transportation must establish four facts. It must show (1) that the driver was arrested for driving under the influence of acohol and/or a controlled substance, (2) that the driver was asked to submit to a chemical test, (3) that the driver refused to do so, and (4) that the driver was warned that a refusal would result in the suspension of his or her license for one year. See Department of Transportation, Bureau of Driver Licensing v. Zeltins, 150 Pa. Commw. 44, 50-51,614 A.2d 349, 353 (1992)? In addition, "to ensure that an arrestee makes a knowing and conscious decision to submit to chemical testing, [the Pennsylvania Supreme Court has held in Department of Transportation, Bureau of Driver Licensing v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989),] that when an arrestee requests to speak with an attorney, whether or not he exhibits confusion ... [and] whether or not the licensee has been advised of his rights under Miranda, the police must tell him that his right to counsel is not applicable to the test." Department of ~2 "Once DOT has established the requisite elements, the burden shifts to the driver to prove by competent evidence that he or she was physically unable to knowingly and consciously refuse chemical testing." Department of Transportation, Bureau of Driver Licensing v. Zeltins, 150 Pa. Commw. 44, 52, 614 A.2d 349, 353 (1992). The present case, however, is not a lack-of-capacity case. Transportation, Bureau of Driver Licensing v. Lipko, __ Pa. Commw .... 654 A.2d 227, 229 (1995). Finally, "even if the police provide a sufficient O'Connell warning, a license suspension imposed on a licensee for refusing to consent to chemical testing must be reversed if the fact finder determines that the circumstances surrounding the police's request for chemical testing are confusing and prevent a licensee from understanding the warning." Itt at ,654 A.2d at 230. In this regard, "the question of whether a licensee is confused or not is a subjective test .... "Id. at , 654 A.2d at 230, citing Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994). "'If a licensee's self-inflicted condition due to his voluntary consumption of alcohol is a factor which contributes to rendering him mentally incapable of making a knowing and conscious refusal to submit to chemical testing, the defense of incapacity must fail.'" Commonwealth of Pennsylvania, Department of Transportation v. Monsay, 142 Pa. Commw. 163, 167, 596 A.2d 1269, 1271 (1991), quoting Appeal of Cravener, 135 Pa. Commw. 480, 484, 580 A.2d 1196, 1198-99 (1990). Pennsylvania courts have consistently defined refusal as "anything substantially short of an unqualified, unequivocal assent to an officer's request to the arrested motorist." In re Appeal of Miller, 79 Pa. Commw. 648, 650, 470 A.2d 213 (1984). Application of law to facts. In the present case, the Commonwealth demonstrated that Appellant was arrested for driving under the influence of alcohol, that she was asked to submit to a chemical test to determine the alcohol content of her blood, that she refused to do so and that she had been warned that a refusal would result in the suspension of her license for a period of at least one year. She was told that she did not have a right to speak to a lawyer or anyone else before taking the chemical test, that her Miranda rights did not apply to the chemical testing procedure, and that the reason for this was that Miranda rights applied to criminal proceedings only. When she questioned the propositions that she did not 9 have a right to consult a friend and that a suspension in her case would be in accordance with law and practice, the booking center agent reaffirmed the information she had received in this respect in plain and understandable language. Under these circumstances, the court is unable to hold as requested by Appellant that she was not properly advised by the officer and booking center agent, that her refusal was not knowingly, voluntarily and intelligently made, or that the suspension imposed by Appellee was otherwise invalid pursuant to statute or case law. For these reasons, the following order will be entered: ~T AND NOW, this 21st day of May, 1998, after careful consideration of Appellant's license suspension appeal, 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 December 25, 1997, is AFFIRMED. BY THE COURT, David E. Hershey, Esq. Attorney for Appellant George Kabusk, Esq. Attorney for Appellee 10