HomeMy WebLinkAbout2008-3665 CivilDALE E. HUNT, : 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,
Appellee : NO. 08-3665 CIVIL TERM
IN RE: APPEAL OF OPERATOR'S LICENSE SUSPENSION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., September 26, 2008.
In this driver's license suspension appeal case, Appellant has filed an appeal from
a one-year driver's license suspension imposed by the Department of Transportation,
Bureau of Transportation ("Department") under Section 1547(b)(1)(1) of the Vehicle
Code, 75 Pa.C.S. 1547(b)(1)(1),i as a result of Appellant's reported refusal to submit to
chemical testing following his involvement in a single -vehicle accident on May 4, 2008.
' This section provides as follows:
(b) SUSPENSION FOR REFUSAL. — (1) If any person placed under arrest for a
violation of section 3802 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: (i) Except as set forth in
subparagraph (ii), for a period of 12 months. (ii) For a period of 18 months if any of the
following apply: (A) The person's operating privileges have previously been suspended
under this subsection. (B) The person has, prior to the refusal under this paragraph, been
sentenced for: (I) an offense under section 3802; (II) an offense under former section
3731; (III) an offense equivalent to an offense under subclause (I) or (II); or (IV) a
combination of the offenses set forth in this clause.
75 Pa. C.S. §1547(b)(1).
2 Appeal of Operator's License Suspension, filed June 19, 2008.
The grounds for the appeal have been expressed as follows in Appellant's Appeal
of Operator's License Suspension:
1. Appellant resides at, 212 N. Baltimore Avenue, Mt. Holly Springs,
Cumberland County, Pennsylvania 17065.
2. The Appellant received a Notice dated May 21, 2008, that as a result of his
alleged violation of Vehicle Code Section 1547, Chemical Test Refusal on
May 4, 2008, his driving privilege[s] were being suspended for a period of (1)
one year, effective suspension date June 25, 2008, at 12:01 a.m... .
3. The Appellant submits that the police officer lacked a reasonable basis to
request Appellant to submit to a chemical test.
4. The Appellant submits that he did not intelligently and voluntarily refuse to
submit to a chemical test.
5. The Appellant submits that his actions did not constitute a refusal .3
A hearing on the appeal was held by the undersigned judge on July 31, 2008.
During the hearing, an additional issue arose as to whether the Appellee had met its
burden of showing that Appellant had been placed under arrest at the time he refused to
submit to chemical testing of his blood.
STATEMENT OF FACTS
By a mailing dated May 21, 2008, the Department notified Appellant that,
pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. §1547(b), Appellant's
driving privileges were being suspended for a period of one year as a result of his refusal
to submit to chemical testing of his blood alcohol content .4 On June 19, 2008, Appellant
s Appeal of Operator's License Suspension, filed June 19, 2008.
4 Commonwealth's Exhibit 1, Hearing, July 31, 2008 (hereinafter Commonwealth Exhibit
2
filed an appeal from the suspension with this court ,5 and a hearing on the appeal was held
on July 31, 2008. At the hearing, the Department presented the testimony of
Pennsylvania State Trooper Isaac L. Keebaugh6 and Pennsylvania State Trooper Adam L.
Thomas.' The Department also presented evidence in the form of the Notice of
Suspension mailed to Appellant, dated May 21, 2008, informing him of his suspension
under Section 1547 for chemical test refusal,$ a DL -26 (Implied Consent) Form that was
read to Appellant at a hospital to which he had been transported following an accident,9
and a printout of Appellant's driving record.'0
The testimony of Trooper Keebaugh, in pertinent part, may be summarized as
follows: On Sunday, May 4, 2008, at approximately 8:36 p.m., Trooper Keebaugh was
dispatched to a report of a motor vehicle crash in South Middleton Township,
Cumberland County, Pennsylvania." Upon arrival, he observed a 1991 Chevrolet
Lumina at final rest, after striking a telephone pole, in the eastbound lane of travel of Pine
Road. 12 The telephone pole hit by Appellant was approximately five to ten feet off the
roadway and on the same side of the road that the vehicle was traveling.13 The vehicle, in
s Appeal of Operator's License Suspension, filed June 19, 2008.
6 N.T. 5-20, Hearing, July 31, 2008 (hereinafter N.T. _ ).
N.T. 21- 28.
'Commonwealth's Exhibit 1.
9 Commonwealth's Exhibit 1.
10 Commonwealth's Exhibit 1.
" N.T. 7.
12 N.T. 7.
13 N.T. 15.
3
the trooper's opinion, had struck the telephone pole, spun slightly clockwise, and then
returned to the roadway before coming to a stop. 14 The vehicle suffered "disabling
damage. Frontal damage. A lot of fluids. The impact was head-on. There was severe
damage to the windshield as well." 15
After observing the vehicle, Trooper Keebaugh went into the ambulance where the
operator of the vehicle was being attended to by Emergency Medical Technicians and
identified the operator of the vehicle as Appellant. 16 Trooper Keebaugh observed that
Appellant had facial lacerations as a result of his face going through the windshield of his
vehicle. 17 Despite his injuries, Appellant "was cognizant. He was alert, and he was able
to talk ...."18 While speaking to Appellant, Trooper Keebaugh "smelled the odor of
alcohol emanating from [Appellant's] breath."19 He asked Appellant if Appellant had
consumed any alcohol and Appellant related that he had consumed some Miller Lite at a
friend's house, from which he was traveling when the accident occurred .20
Trooper Keebaugh interviewed two witnesses at the accident site .21 The first
witness, Chad Bear, told Trooper Keebaugh that he had been driving a pick-up truck,
14 N.T. 16.
" N.T. 7.
16 N.T. 7.
17 N.T. 17.
" N.T. 7.
19 N.T. 8.
zo N.T. 8.
z1 N.T. 8.
11
which was towing a trailer, when he decided to pull off to the side of Pine Road.22 As he
pulled over, a Chevrolet Lumina automobile passed him, nearly striking his trailer .2' At
that point, the witness began following the Chevrolet and, shortly thereafter, watched as it
traveled off the shoulder of the road while going around a curve .24 When the witness
came around the corner, he observed the Chevrolet at final rest.25 The witness rendered
aid to Appellant and, as they were speaking, the witness detected an odor of alcohol on
Appellant's breath .26
The second on -the -scene witness, Sherry Walker ,27 told Trooper Keebaugh that
the Chevrolet Lumina had been traveling behind her as she drove east on Pine Road.28
She related to Trooper Keebaugh that the vehicle was following her so closely that, at
some points, she could not see its headlights .29 She further stated that, at times, the
vehicle would drop back, then return and again travel closely behind her vehicle.30 As
she drove, she monitored the vehicle in her rearview mirror and watched as it crossed
22 N.T. 10.
2s N.T. 10.
24 N.T. 10.
2s N.T. 10.
26 N.T. 10.
27 N.T. 10.
2s N.T. 11.
29 N.T. 11.
so N.T. 11.
5
over the double -yellow line at various points.31 Finally, she watched as the vehicle
crashed .32 At that point, she turned her own vehicle around and called 9-1-1.33
After speaking with the witnesses, Trooper Keebaugh spoke with the Emergency
Medical Technicians, who stated that they were going to take Appellant to Carlisle
Regional Medical Center.34 After the ambulance left for the hospital, Trooper Keebaugh
remained at the scene to ensure the area was safe and to wait for the electric company to
arrive to fix the telephone pole, which had been sheared off at its base .35 He contacted
Trooper Thomas via radio and instructed Trooper Thomas to meet Appellant at the
hospital. He told Trooper Thomas that he believed the crash was a result of driving under
the influence,36 and asked Trooper Thomas to read Appellant his implied consent
warnings and to ask him to consent to the provision of a blood sample .37
At the hearing, Trooper Thomas testified that he arrived at the hospital at
approximately 9:10 p.m.38 He stated that he met Appellant in a hospital room where
Appellant was on a hospital bed, seated slightly upward .39 Trooper Thomas testified that
he advised Appellant that he believed Appellant was under the influence of alcohol,
31 N.T. 11.
32 N.T. 11.
" N.T. 11.
34 N.T. 13.
" N.T. 13.
36 N.T. 22.
37 N.T. 22.
" N.T. 23.
s9 N.T. 23.
31
asked Appellant to submit to a blood test and told him that a refusal would result in a
license suspension. 40 Trooper Thomas described their initial conversation as follows:
The first thing I asked [Appellant] was if he was willing to submit to a
blood test for a legal blood. He was coherent. He was speaking with me. He
knew what I was asking. He had told me that he had been through the process
before. He had told me that I could take his license for a year. He told me he was
not willing to submit to a blood test .41
After Appellant initially refused to submit to a blood test, Trooper Thomas read
Appellant the implied consent warnings, in accordance with the DL -26 Form issued by
the Pennsylvania Department of Transportation.42 Tr000per Thomas testified that he read
the form, verbatim, to Appellant 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.
2. I am requesting that you submit to a chemical test of blood.
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 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
40
N.T. 24-25.
41 N.T. 23.
42 N.T. 25.
7
provided these 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 violating Section 3802(a) of the Vehicle Code.43
According to Trooper Thomas, Appellant had no questions as to the meaning of
this information, but again refused to submit to a blood test and refused to sign the form
to acknowledge that he had been advised of the consequences of refusal.44 The Trooper,
according to his testimony, signed the form under the block stating that operator refused
to sign after being advised of the foregoing, and then left the hospital while Appellant
remained in his room for treatment .45
As a result of Appellant's refusal and the subsequent investigation, 46 Trooper
Keebaugh filed a criminal complaint on May 6, 2008. Thereafter, the Department
notified Appellant that, as a result of his refusal, his operating privileges would be
suspended for one year pursuant to section 1547(b)(1) of the Vehicle Code .47 Appellant
appealed his suspension to this court .48
At the hearing on Appellant's appeal, an issue arose as to whether the Department
had met its burden of showing that Appellant was under arrest when he refused to submit
43 N.T. 25; Commonwealth's Exhibit 1.
44 N.T. 25; Commonwealth's Exhibit 1.
4s N.T. 25.
46 At the hospital, blood was drawn from Appellant by the emergency room personnel for medical reasons
and in accordance with Section 3755(a) of the Vehicle Code, 75 Pa. C.S. §3755(a). The medical records
later obtained by Officer Keebaugh, during the course of his investigation, showed that Appellant's blood
alcohol level was .27 upon his arrival at the hospital.
47 Commonwealth's Exhibit 1.
48 Appeal of Operator's License Suspension, filed June 19, 2008.
to chemical testing of his blood .49 Certain testimony of the troopers, in addition to that
previously conveyed, related further to this issue. Trooper Keebaugh, the affiant,
testified that he had not placed Appellant under arrest at the scene of the accident 50
Rather, according to his testimony, he waited to speak with Trooper Thomas and to
obtain further information from an investigation. 51 Trooper Keebaugh discussed
Appellant's arrest as follows:
Q: Did you place Mr. Hunt under arrest?
A: No, I did not.
Q: Do you know who did?
A: Well, I arrested him later after the investigation. Some time had passed
once I talked to Trooper Thomas, who went to the hospital for me, and I got some
additional information that drew me to the conclusion that he was driving under
the influence.52
Q: Okay. And do you know what time approximately you placed him under
arrest?
A: It was some days later. It wasn't that night at all. 53
Trooper Keebaugh opined that he effectuated the arrest by filing a criminal complaint on
May 6, 2008.54
49 N.T.
30-34.
so N.T.
13.
51 N.T.
14.
Sz Commonwealth Exhibit 1.
" N.T.
13-14.
14 N.T.
18-19.
9
Trooper Thomas also testified that he did not place Appellant under "physical"
arrest on the evening of the accident55 He explained as follows:
Q: Officer Thomas, did you place [Appellant] under arrest?
A: I didn't place him under physical arrest that night for anything. He was — I
was getting information, and that is what I was there for.
THE COURT: I gather you did advise him that he was under arrest?
THE WITNESS: That's correct, but I was not the arresting officer.
THE COURT: But one of the things you told him was that he was under
arrest?
THE WITNESS: That's correct.
In order to address whether Appellant was in fact under arrest at the time of his
refusal, despite the officers' testimony, counsel for the Department requested a period of
time in which to submit a brief on the issue .56 Accordingly the court entered the
following order at the conclusion of the hearing:
AND NOW, this 31st day of July, 2008, upon consideration of the
Appellant's Appeal of Operator's License Suspension, and following a hearing
held on this date, the record is declared closed, and the matter is taken under
advisement.
Pursuant to a request of the Appellee's counsel, the Court will receive
briefs in this matter within 14 days of today's date.
" N.T. 27.
16 N.T. 33.
10
DISCUSSION
Section § 1547(b) of the Vehicle Code, commonly known as the Implied Consent
Law, provides in relevant part as follows:
(b) Suspension for refusal. --
(1) If any person placed under arrest for a violation of section 3802 [relating to driving
under the influence of alcohol or a controlled substance) 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:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
(2) It shall be the duty of the police officer to inform the person that:
(i) the person's operating privilege will be suspended upon refusal to submit
to chemical testing; and
(ii) if the person refuses to submit to chemical testing, upon conviction or plea
for violating section 3802(a)(1), the person will be subject to the penalties
provided in section 3804(c) (relating to penalties).
(3) Any person whose operating privilege is suspended under the provisions of this
section shall have the same right of appeal as provided for in cases of suspension for
other reasons .17
To sustain a license suspension for refusal to submit to a chemical test, it is the
Department's burden to establish that the licensee (1) was arrested for driving while
under the influence by a police officer who had reasonable grounds to believe that the
licensee was operating a vehicle while under the influence of alcohol or a controlled
substance, (2) was asked to submit to a chemical test, (3) refused to do so, and (4) was
s' 75 Pa. C.S. §1547.
11
warned that a refusal would result in a license suspension. Maletic v. Department of
Transportation, Bureau of Driver Licensing, 2003 Pa. Cmwlth. Lexis 170, 6-7, 819 A.2d
640, 643 (2003).
Appellant argues that the troopers lacked a reasonable basis to request Appellant
to submit to a chemical test of his blood-alcohol leve1.58 The court disagrees. The
reasonable grounds required for a request that a motorist submit to a chemical test "to
support a license suspension [do] not rise to the level of probable cause required for a
criminal prosecution." Banner v. Department of Transportation, Bureau of Driver
Licensing, 558 Pa. 439, 446, 737 A.2d 1203, 1207 (1998). Rather, "reasonable grounds
exist when a person in the position of the police officer, viewing the facts and
circumstances as they appeared at the time, could have concluded that the motorist was
operating the vehicle while under the influence of intoxicating [alcohol]." Banner at 446,
737 A.2d 1203, 1207.
Under this standard, the troopers involved in investigating Appellant's single -
vehicle accident clearly had a sufficient basis to believe that Appellant was in physical
control of his vehicle while under the influence of alcohol .59 Trooper Keebaugh testified
that, while speaking to Appellant at the accident site, he "smelled the odor of alcohol
emanating from [Appellant's] breath, ,60 and that a witness also detected an odor of
" Appeal of Operator's License Suspension, filed June 19, 2008.
s9 It is undisputed that Appellant was the operator of the vehicle involved in the accident.
60
N.T. 7.
12
alcohol on Appellant's breath .61 Equally significant is Appellant's own admission to
Trooper Keebaugh that he had been drinking "Miller Lite" at a friend's house that
evening. Furthermore, two witnesses to the accident told Trooper Keebaugh that they
saw Appellant driving erratically immediately prior to the accident. Finally, the
circumstances of the accident suggested driver error. Appellant's vehicle had struck a
telephone pole, which was sitting five to ten feet off the road, with such force that the
bottom of the pole was sheared off at the bottom and then returned to the road before
coming to final rest. Consequently, the facts available to the troopers prior to their
request for chemical testing meets the minimum level of information required to
constitute reasonable grounds.
Appellant further contends that "he did not intelligently and voluntarily refuse to
submit to a chemical test," and that "his actions did not constitute a refusal. ,62
Appellant has the burden to show that his refusal to submit to a chemical test was not
knowing and conscious. Maletic v. Department of Transportation, Bureau of Driver
Licensing, 819 A.2d 640, 644 (2003); see Ostermeyer v. Department of Transportation,
Bureau of Driver Licensing, 703 A.2d 1075 (1997). In the absence of "severe, obvious
and incapacitating injuries, expert testimony is required to meet this burden." Maletic v.
Department of Transportation, Bureau of Driver Licensing, 819 A.2d 640, 644 (2003).63
61 N.T. 10.
62 Appeal of Operator's License Suspension, filed June 19, 2008.
63 In its opinion, the Court in Maletic cited two cases to help explain when expert testimony is and is not
necessary to meet Appellant's burden to showing that his or her refusal was not knowing or conscious. In
Department of Transportation, Bureau of Driver Licensing v. Garlan, 121 Pa. Cmwlth. 400, 550 A.2d
873, the court held that a concussion, corneal abrasion, bruises and a loss of memory was not enough to
13
No evidence was presented at the hearing to show that Appellant's injuries rose to
the level of "severe, obvious and incapacitating," and Appellant presented no medical
evidence to show that he was incapable of making a knowing and conscious refusal.
Instead, Trooper Keebaugh and Trooper Thomas testified at the hearing that, following
the accident, Appellant was "cognizant,"64 "alert, ,65 and "coherent. ,66 Trooper Thomas
further testified that, prior to being warned of the consequences of a chemical test refusal,
Appellant told Trooper Thomas to "take his license for a year because he had been
through the process before" and "would refuse to submit to a blood test. ,67 After Trooper
Thomas read Appellant Form DL -26, Appellant again refused to submit to the test and
further refused to sign the form acknowledging that he had been advised of the
consequences of a refusal. Appellant presented no evidence to rebut the officers'
testimony that he was fully alert and coherent on the evening of his accident. Thus, it is
the court's view that Appellant knowingly and consciously refused to submit to the
chemical test and that his actions constituted a refusal.
At the hearing, an issue arose as to whether Appellant had been placed under
arrest, for purposes of Section 1547(b) of the Vehicle Code, at the time he refused the
meet this burden in the absence of expert medical testimony. On the other hand, in Department of
Transportation, Bureau of Traffic Safety v. Day, 93 Pa. Cmwlth. 49, 500 A.2d 214, the court held that a
broken jaw, severe facial lacerations, a broken arm, an injured leg and blows to the head were sufficiently
severe and obvious to obviate the need for expert medical testimony.
64 N.T. 7.
6s N.T. 7.
66 N.T. 23.
67 N.T. 23.
14
test. The question of whether or not a driver has been "placed under arrest" for purposes
of Section 1547(b) is a factual rather than a legal determination. Department of
Transportation, Bureau of Traffic Safety v. Uebelacker, 98 Pa. Cmwlth. 436, 439, 511
A.2d 929, 931 (1986); Glass v. Department of Transportation, Bureau of Traffic Safety,
460 Pa. 362, 366, 33 A.2d 768, 770 (1975) (any act that indicates an intention to take a
person into custody and subjects that person to the actual control and will of the arresting
officer). A formal declaration of arrest is not required to satisfy the requirement for
suspending a driver's license for refusal to submit to a chemical test. Department of
Transportation, Bureau of Traffic Safety v. Uebelacker, 98 Pa. Cmwlth. 436, 439, 511
A.2d 929, 931 (1986) ("We have consistently held that no formal declaration of arrest or
act of physical force is required.") Instead, the relevant inquiry is whether the driver, at
the time he was asked to submit to the chemical test, should have inferred from the
totality of the circumstances that he was under the control and custody of the officer.
Maletic v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 640, 643
(Pa. Cmwlth. 2003); Department of Transportation, Bureau of Traffic Safety v.
Uebelacker, 98 Pa. Cmwlth. 436, 439, 511 A.2d 929, 931 (1986); Department of
Transportation, Bureau of Driver Licensing v. McGlynn, 147 Pa. Cmwlth. 454, 458-59,
611 A.2d 770, 772-73 (1992).
A review of relevant case law has led the court to conclude that Appellant was
under arrest for purposes of Section 1547(b) of the Code, at the time he refused to submit
to the chemical test. In Department of Transportation, Bureau of Driver Licensing v.
15
McGlynn, 147 Pa. Cmwlth. 454, 611 A.2d 770,68 an officer arrived at the scene of an
automobile accident and observed that one of the drivers was staggering and that he
smelled of alcohol .69 After the driver was transported to a hospital, the officer advised
the driver that he was believed to be under the influence of alcohol, asked him to submit
to a blood test and told him that a refusal would result in a license suspension. 70 The
driver refused to submit to the test. 71 At the hearing, when asked if the driver was placed
under arrest at the time he refused to submit to the test, the officer responded: "[A]t that
time he was under treatment. So [he] was not going anywhere. And I sent charges out
via citation. He was not taken into custody that night."72
The trial court relied upon the officer's testimony to support its finding that the driver
was not under the custody and control of the officer, specifically noting that the officer
did not mention that he was going to arrest the driver, and that there was no evidence that
any police officer or hospital employee indicated to the driver that he was not free to
leave.73 The Commonwealth Court reversed, finding that the trial court failed to review
the totality of the circumstances. 74 In reaching its decision, the Court pointed to the
officer's testimony that the exchange between himself and the driver occurred while the
68 Department of Transportation, Bureau of Driver Licensing v. McGlynn, 147 Pa. Cmwlth. 454, 611
A.2d 770 (1992).
69 McGlynn at 457, 611 A.2d 770, 772.
70 McGlynn at 457, 611 A.2d 770, 772.
71 McGlynn at 458, 611 A.2d 770, 772.
72 McGlynn at 461, 611 A.2d 770, 774.
73 McGlynn at 461, 611 A.2d 770, 774.
74 McGlynn at 461, 611 A.2d 770, 774.
16
driver was undergoing treatment in an emergency room. 75 The Court also found
significant the officer's testimony that, before making the request to the driver, he had
told the driver that he felt the driver was under the influence of alcohol.76 Based on these
facts, and in accordance with prior case law,77 the Court determined that the driver was
under the custody and control of the officer at the time he refused to submit to the
chemical test. In further support of its conclusion, the Court stated that, "upon hearing
the officer's opinion that [the driver] was under the influence of alcohol, [the driver]
should have reasonably inferred that an arrest was imminent, if not immediate."78
In Maletic v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d
640 (2003),79 a police officer was dispatched to the site of a single -vehicle accident
where the driver had to be extracted from her car by an emergency medical service
team.80 Before she went to the hospital, the officer questioned her about the accident.81
The driver stated that she did not know how the accident occurred and admitted to
75 McGlynn at 461, 611 A.2d 770, 774.
76 McGlynn at 461, 611 A.2d 770, 774.
77 In support of its decision, the Commonwealth Court cited Department of Transportation,
Bureau of Traffic Safety v. Uebelacker, 98 Pa. Cmwlth. 436, 511 A.2d 929 (1986), Department
of Transportation, Bureau of Driver Licensing v. Webb, 139 Pa. Cmwlth. 1, 590 A.2d 28 (199 1)
and Department of Transportation, Bureau of Driver Licensing v. Shine, 114 Pa. Cmwlth. 523,
539 A.2d 42 (1988).
78 McGlynn at 461, 611 A.2d 770, 774.
79 Maletic v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 640 (2003).
80 Maletic at 641.
81 Maletic at 641.
17
drinking prior to the accident. 82 After the officer investigated the accident scene, he went
to the hospital where he found the driver in the emergency room on a gurney.83 The
officer told the driver that she was under investigation for driving under the influence. 84
The officer then read her Form DL -26 in its entirety. 85 The officer requested several
times that she consent to a chemical test of her blood-alcohol level, but the driver
refused. 86 Aside from his verbatim reading of Form DL -26, the officer testified that he
did not tell the driver that she was under arrest nor did he tell her that she was not free to
leave. 87 The officer also stated that he never physically arrested her or took her into
custody. 88
The trial court determined that the statements read by the Officer from Form DL -
26 were the only evidence suggesting that an arrest had occurred and were not sufficient
in light of the officer's testimony stating that an arrest did not occur.89 His testimony
"indicated that he made no arrest prior to Licensee's refusal to submit to the blood test,
that he never made mention of a future arrest, and that Licensee was in no way confined
or restrained so that she could not come or go at her leisure."90 Therefore, the trial court
82 Maletic at 641.
"Maletic at 641.
84 Maletic at 642.
"Maletic at 642.
86 Maletic at 642.
87 Maletic at 642.
"Maletic at 642.
89 Maletic at 642.
90 Maletic at 642.
IN
found that the driver was not under arrest prior to her refusal to submit to a blood test
and, consequently, sustained the driver's appeal of her license suspension. 91
The Department appealed, arguing that the officer's reading of Form DL -26
contradicted his statement that the driver was simply under investigation, and that the
officer did not leave the hospital until she had refused to submit to the chemical testing. 92
The Department asserted that the evidence was sufficient to meet its burden that the
driver was under arrest at the time of her refusal. 93 After examining prior case law 94
and
the evidence presented at the hearing, the Commonwealth Court reversed the trial court
9i Maletic at 642.
92 Maletic at 643.
9s Maletic at 643.
94 The Commonwealth Court examined three cases that had been brought to its attention by the
Department. The Court's discussion of these cases read as follows:
In Department of Transportation, Bureau of Traffic Safety v. Uebelacker, 98
Pa.Cmwlth. 436, 511 A.2d 929 (1986), the police officer arrived at the accident scene,
radioed for an ambulance, followed it to the hospital and, waited while the licensee was
confined to a bed. The officer then told the licensee that "he was going to be arrested" for
driving under the influence and the officer stated that he would like the licensee to submit
to a blood test. We held in Uebelacker that the totality of the circumstances established
that a reasonable person would have inferred that he was under the custody and control of
the police officer. In Department of Transportation, Bureau of Driver Licensing v. Shine,
114 Pa. Cmwlth. 523, 539 A. 2d 42 (1988), the officer who investigated the accident then
went to the hospital and advised the licensee that he was going to be arrested for several
charges, including driving under the influence. We determined, there, that the evidence
showed that the totality of the circumstances was sufficient for the licensee to infer that
he was under the control or custody of the officer, even though the officer did not move
the licensee from the hospital to the police station to process the arrest. In Department of
Transportation, Bureau of Driver Licensing v. Jones, 120 Pa.Cmwlth. 88, 547 A.2d 877
(1988), petition for allowance of appeal denied, 522 Pa. 579, 559 A.2d 40 (1989), we
determined that an arrest had occurred when the police officer investigating the accident
then went to the hospital and gave the licensee his Miranda rights, with the explanation
that he was going to be placed under arrest for drunk driving. Again, we said that, under
the totality of the circumstances, the reasonable impression of the licensee should have
been that he was subject to the officer's custody and control.
Maletic at 643-44.
19
and sustained the license suspension. 95 In reaching its decision, the Commonwealth
Court found it significant that the officer's explanation to the driver of the implied
consent law included the paragraph stating that the licensee was "now under arrest for
driving under the influence."96 The Court was also persuaded by the fact that the driver
"was not going to be leaving the hospital anytime soon because she was undergoing
emergency medical treatment"97 and, therefore, it was not necessary to restrict the
licensee's freedom at the hospital or to indicate that she could not leave or that she would
be placed under arrest for drunk driving.98 The Court concluded that, in line with other
cases, the totality of the circumstances indicated that there was an arrest.99
In the present case, based upon the facts recited above, the Department, in the
court's view, met its burden of showing that Appellant was under arrest for purposes of
Section 1547(b). Appellant was involved in a single -vehicle accident where he drove
into a telephone pole with such force that the pole was sheared off at the bottom. While
at the scene of the accident, Officer Keebaugh detected a strong odor of an alcoholic
beverage on Appellant's breath, and he spoke with two witnesses who informed him that
Appellant had been driving erratically and dangerously immediately prior to the accident.
9s Maletic at 644-45.
96 Maletic at 644.
97 Maletic at 644.
9s Maletic at 644.
99 Maletic at 644.
20
One of the witnesses had also detected a strong odor of an alcoholic beverage on
Appellant's breath while tending to Appellant's injuries before the ambulance arrived.
The ambulance transported Appellant to the hospital where Officer Thomas asked
Appellant to submit to a chemical test and read to him the four -paragraph implied consent
warning from Form DL -26. The trooper's verbatim reading of the implied consent law
included a paragraph stating that Appellant was "now under arrest for driving under the
influence."100 Despite the trooper's warnings, Appellant refused to consent to the test.
Trooper Thomas thereafter left the hospital while Appellant remained in his hospital for
treatment
Notwithstanding the officers' testimony at the hearing that Appellant was not
arrested the night of the accident, under these circumstances, the reasonable impression
of Appellant should have been that he was subject to official custody and control. It was
"not necessary for the officer to use the exact words, `You are now under arrest,' 01 nor
was it necessary for the [trooper] to take Appellant into physical custody or to restrict
Appellant's freedom in any way as it was apparent that Appellant "was not going to be
leaving the hospital anytime soon," 102 because his injuries required him to remain at the
hospital for further treatment.
Thus, the court is of the view that the Department met its burden of showing that
Appellant was under arrest for driving under the influence, was requested to submit to
'00 Maletic at 644.
10' Uebelacker, 98 Pa. Commonwealth Ct. at 440-441, 511 A.2d at 931.
102 Maletic at 644.
21
chemical testing, was warned of the consequences of refusing the test, and failed to
submit to the test.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 26th day of September, 2008, upon consideration of the Appeal of
Driver's License Suspension filed by Appellant in the above -captioned matter, and
following a hearing held on July 31, 2008, the appeal is denied, and the suspension of
Appellant's driving privilege noticed by the Appellee by a mailing, dated May 21, 2008,
is affirmed.
Marlin L. Markley, Esquire
Law Offices of Patrick F. Lauer, Jr., LLC
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
Attorney for Appellant
Phillip M. Bricknell, Esquire
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
Riverfront Office Center, 3rd Floor
1101 South Front Street
Harrisburg, PA 17104-2516
Attorney for Appellee
22
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
23
DALE E. HUNT, : 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,
Appellee : NO. 08-3665 CIVIL TERM
IN RE: APPEAL OF OPERATOR'S LICENSE SUSPENSION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 26th day of September, 2008, upon consideration of the Appeal of
Driver's License Suspension filed by Appellant in the above -captioned matter, and
following a hearing held on July 31, 2008, the appeal is denied, and the suspension of
Appellant's driving privilege noticed by the Appellee by a mailing dated May 21, 2008,
is affirmed.
BY THE COURT,
J. Wesley Oler, Jr., J.
Marlin L. Markley, Esquire
Law Offices of Patrick F. Lauer, Jr., LLC
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
Attorney for Appellant
25
Phillip M. Bricknell, Esquire
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
Riverfront Office Center, 3rd Floor
1101 South Front Street
Harrisburg, PA 17104-2516
Attorney for Appellee