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HomeMy WebLinkAbout03-2891 CivilHARRY LEE WILLIAMS, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2891 CIVIL TERM RE: PETITIONER'S LICENSE SUSPENSION APPEAL HOFFER, P.J. Factual Background and Procedural History Petitioner Harry Lee Williams appeals from two notices issued by the Commonwealth of Pennsylvania Department of Transportation ("PennDot"). On May 22, 2003, PennDot notified petitioner that his operating privilege was being suspended for one year as a result of his violation of Section 1547 of the Vehicle Code. Petitioner violated Section 1547 on April 28, 2003 when he refused to submit to a breathalyzer test subsequent to his arrest for Driving Under the Influence.~ PennDot issued ~ The Court finds that Petitioner refused the breathalyzer test. Petitioner argued at his appeal hearing that when arresting Officer Gelnett was in the middle of reading the DL-26 form to Petitioner, Petitioner stated "1 submit." Petitioner reasoned that this statement represented acquiescence to chemical testing. Yet, when Officer Gelnett finished reading the DL-26 warning in its entirety, Petitioner clearly refused to submit to the test. The police officer had no duty to stop reading the DL-26 to the Petitioner before the warning was completed. It is sound procedure for an officer to render full readings of the DL-26 to drivers so that the drivers may receive the entire benefit of the warning. It is not until then that drivers can fully a second notice on May 22, 2003, informing the petitioner that his violation of Section 1547 resulted in the permanent cancellation of his probationary license. Discussion License suspension cases under Section 1547 are governed by criteria set forth in Department of Transportation v. O'Connell. 521 Pa. 242 (1989). The O'Connell court held that the Department of Transportation must establish that the driver: 1) was arrested for driving while under the influence of alcohol; 2) was asked to submit to a breathalyzer test; 3) refused to do so; 4) was specifically warned that a refusal would result in the revocation of his driver's license. Id. at 249. Petitioner argues that the police officer should have provided an additional warning regarding the cancellation of his probationary license upon refusal to submit to a breathalyzer test. However, the Pennsylvania General Assembly has already legislated regarding the duty owed by a police officer in these circumstances. Section 1547(b)(2) of Title 75 of the Vehicle Code mandates that a police officer must inform the driver that contemplate the implications of refusal. Say, for example, an officer reads the first sentence of the DL-26 and the driver says "Forget the rest. I'll take the test." Once hooked up to the breathalyzer, the driver changes his mind. The officer would not be able to count that as a fully-formed refusal because a full and proper O'Connell warning was not given. The officer would have to start all over with a new reading of the DL-26 and time is wasted. The most practical procedure is to complete the full warning before moving ahead. 2 his/her operating privilege will be suspended upon refusal to submit to chemical testing. A proper O'Connell warning must convey the certainty of the operating privilege suspension and inform the driver that his/her Miranda rights do not apply to the context of chemical testing. See Department of Transportation v. Scott, 546 Pa. 241 (1996). Officer Gelnett testified that he read the entire DL-26 form to Petitioner. Information contained on the DL-26 form is sufficient to meet the aforementioned standards of a proper O'Connell warning. Commonwealth v. Inqram & Frain, 538 Pa. 236, 256 (1994). The Pennsylvania Supreme Court concluded that once a police officer provides an O'Connell warning to a driver, the officer has done all that is legally required to ensure the driver is fully aware of the ramifications of his/her refusal to submit to chemical testing. Scott at 254. As provided in Section 1554(j) of the Vehicle Code, a driver can appeal the cancellation, denial or recall of a probationary license by filing a petition for hearing with the Department of Transportation. The present appeal is not the proper forum to contest the cancellation of a probationary license because it only involves a one-year suspension of Petitioner's operating license as a result of his violation of Section 1547 of the Vehicle Code. Based on the Court's aforementioned conclusions, PennDot met its burden for a proper license suspension under Section 1547. Petitioner's appeal is denied. 4 HARRY LEE WILLIAMS, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2891 CIVIL TERM RE: PETITIONER'S LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this 17th day of December, 2003, upon consideration of Petitioner's License Suspension Appeal and after hearing the oral arguments of both parties, it is hereby ORDERED that Petitioner's Appeal is refused. By the Court, John B. Mancke, Esquire Mancke, Wagner & Spreha 2233 N. Front Street Harrisburg, PA 17110 Attorney for Petitioner George H. Kabusk, Esquire Office of Chief Counsel Vehicle & Traffic Law Division Harrisburg, PA 17104 Attorney for Respondent George E. Hoffer, P.J.