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HomeMy WebLinkAbout03-214 CivilSOFET KLOVO, PETITIONER COMMONWEALTH OF P E N N SYLVAN IA, D E PARTM E NT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-0214 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND ORDER OF COURT Bayley, J., April 29, 2003:-- Petitioner, Sofet Klovo, filed an appeal from the suspension of his driving privilege for one year by respondent, Department of Transportation, as a result of his refusing a chemical test in violation of the Vehicle Code at 75 Pa.C.S. Section 1547. A hearing was conducted on April 21, 2003. We find the following facts. On November 25, 2002, Officer Andrew Wolfe of the Middlesex Township Police Department was on patrol on Wolf's Bridge Road in Middlesex Township. He clocked petitioner with a VASCAR unit at 53.5 miles per hour in a 35 mile per hour zone. He saw petitioner drive completely into the opposite lane on the two-lane road, and on a second occasion he saw him drive partway into the opposite lane causing a vehicle that was coming in the opposite direction to swerve sharply to avoid a collision. Officer Wolfe stopped petitioner. Petitioner had bloodshot, glassy eyes, and the officer smelled an odor of alcoholic beverages coming from his breath. Officer Wolfe asked 03-0214 CIVIL TERM petitioner if he would perform field sobriety tests and petitioner said that he would. The officer explained the tests to petitioner. Petitioner said that he understood the instructions and that he had done the tests before. Petitioner then performed but failed the walk-and-turn test and a one-leg stand test. Officer Wolfe, believing that petitioner was under the influence of alcohol to a degree that rendered him incapable of safe driving, arrested him for driving under the influence. car and Officer Wolfe drove him to a booking center. Petitioner was placed in a patrol Petitioner talked virtually nonstop on the way to the booking center. He told the officer that he was from Bosnia and that he needed to work something out, that this was going to ruin his life, and that he had been arrested for driving under the influence about two years ago. He said he was a millionaire and he offered Officer Wolfe thousands of dollars not to arrest him for driving under the influence. The officer told petitioner to "forget it." Up to this point all of petitioner's conversations with Officer Wolfe were in English. After arriving at the booking center, Officer Wolfe read petitioner the following warnings: 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 (breath, blood or urine. Officer chooses the chemical test.) 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 a period of one year. 4. a) The constitutional rights you have as a criminal defendant, commonly known as the Miranda Rights, including the right to speak with a lawyer and the right to remain silent, apply only to -2- 03-0214 CIVIL TERM criminal 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 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 influence of alcohol or a controlled substance. Officer Wolfe then asked petitioner to sign the sheet on which the warnings were typed. Petitioner told him that he did not speak any English, and that he could either give him an interpreter or let him go. Officer Wolfe called Cumberland County Control, and through a 24-hour hotline was able to contact an interpreter in California who spoke the language that defendant spoke. Using a speakerphone, Officer Wolfe read the same warnings, word for word, from the same form that he had previously read to petitioner and the interpreter translated. At the end of each of the four sections of the warnings the officer asked if petitioner understood that section. Petitioner, through the interpreter, said he understood each section. Officer Wolfe then reiterated that petitioner would lose his license for one year if he did not take the test. The officer asked if petitioner understood and petitioner, through the interpreter, said that he did and that he would not take the test. The officer then deemed that petitioner had refused to take the test on an Intoxilyzer that was available at the booking center for -3- 03-0214 CIVIL TERM that purpose.~ DISCUSSION The warnings provided to petitioner in English by Officer Wolfe and then by Officer Wolfe through the interpreter, were those that are required pursuant to rulings by the Pennsylvania Supreme Court. See Commonwealth, Department of Transportation v. Scott, 546 Pa. 241 (1996). In order to suspend a driving privilege pursuant to the Vehicle Code at 75 Pa.C.S. Section 1547, the Department must establish that the licensee (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or in actual physical control of the movement of a vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal would result in the suspension of driving privilege. Banner v. Commonwealth, Department of Transportation, 737 A.2d 1203 (Pa. 1999). Once the Department has met that burden, it is the driver's responsibility to prove that he or she was not capable of making a knowing and conscious refusal to take the test. Commonwealth v. O'Connell, 521 Pa. 242 (1989). In the case sub judice, Officer Wolfe had reasonable grounds to believe that petitioner was operating his motor vehicle while under the influence of alcohol to a ~ The Commonwealth did not call the interpreter to testify. Petitioner did not testify or present any evidence. -4- 03-0214 CIVIL TERM degree that rendered him incapable of safe driving? Petitioner, through his counsel, argues that because the Commonwealth did not call the interpreter to testify it has not proven that he was provided adequate warnings in a language he could understand before he refused to take a test. There is no evidence to support that argument. Based on the conversation that petitioner had with the officer after he was stopped, which involved him telling the officer that he understood the instructions he was given to take the field sobriety tests, and that he then took those tests, and the extensive conversation and the statements made by petitioner to the officer while they drove to the booking center, which included petitioner's ability to offer a bribe in English, we find that petitioner understands English sufficiently so that the warnings given to him in English were adequate. Furthermore, when Officer Wolfe obtained an interpreter and the warnings were given to petitioner again, petitioner acknowledged through the interpreter that he understood, and he stated through the interpreter that he would not take a test. There is not a wit of evidence to suggest that petitioner was not properly warned in a language he understood and that he then made a conscious refusal not to take a test. See YI v. Commonwealth of Pennsylvania, Department of Transportation, 166 Pa. Commw. 214 (1994); IM v. Commonwealth of Pennsylvania, Department of Transportation, 108 Pa. Commw. 206 (1987). 2 As set forth in Banner, the legality of the arrest is immaterial for the purposes of a license suspension. -5- 03-0214 CIVIL TERM AND NOW, this ORDER OF COURT day of April, 2003, the within appeal from an order of suspension of driving privilege, IS DISMISSED. By the Court, George H. Kabusk, Esquire For the Department of Transportation Marlin L. Markley, Jr., Esquire For Petitioner :sal Edgar B. Bayley, J. -6-