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HomeMy WebLinkAbout2004-1815 Civil JOHN F. GARNER, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 04-1815 CIVIL COMMONWEALTH OF PA, DEPARTMENT OF TRANS., BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAL IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE HESS, 1. OPINION AND ORDER On March 6,2004, the appellant, John Garner, was stopped, while operating a motor vehicle in Camp Hill Borough, Cumberland County, by Officer John Kidman of the Camp Hill Borough Police Department. Having reason to believe that the motorist was under the influence of alcohol, Officer Kidman placed Mr. Garner under arrest and transported him to the Upper Allen Township booking center for processing and chemical testing. Officer Kidman requested that Mr. Garner submit to a breath test. In that connection, Officer Kidman furnished Mr. Garner with a form DL-26. This was a form which had been revised in light of the recently enacted law with respect to driving after imbibing alcohol. The form stated, in pertinent part: 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 one year. In addition, if you refuse to submit to the chemical test, and you are convicted of, plead to, or adjudicated delinquent with respect to violating Section 3 802( a) [driving after imbibing] of the Vehicle Code, because of your refusal, you will be subject to the more severe penalties set forth in Section 3 804( c) of the Vehicle Code, which include a minimum of seventy-two hours in Jail and a minimum fine of $1,000. 04-1825 CIVIL 4. It is my duty as a police officer to inform you that ... any request to speak with an attorney or anyone else after being provided these warnings ... 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. Mr. Garner testified, credibly, that he studied the form and understood it. What the form plainly told him was that if he refused a breath test, he faced a minimum of seventy-two hours in jail and that he could not ask to speak with anyone about the DL-26 lest that request be construed to be a refusal. It is important to note that the current driving under the influence (DUI) law differs markedly from the prior DUI law in that there are now criminal penalties imposed when a motorist refuses a chemical test. Specifically, Section 3804 of the current statute provides that, where an individual violates Section 3 802( a)( 1) and has refused testing of blood or breath, the person must be sentenced: (1) For a first offense, to: (i) undergo imprisonment of not less than seventy-two consecutive hours nor more than six months; ... (2) for a second offense, to: (i) undergo imprisonment of not less than ninety days nor more than five years; ... (3) for a third or subsequent offense, to: (i) undergo imprisonment of not less than one year nor more than five years; ... See 75 Pa.C.S. 3804. No doubt because of this change in the DUI law, the legislature amended Section 1547 of the Vehicle Code to read in pertinent part as follows: (2) It shall be the duty of the police officer to inform the person that: 2 04-1825 CIVIL (i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and (ii) upon conviction, plea or adjudication of delinquency for violating section 3802(a), the person will be subject to the penalties provided in section 3 804( c) (relating to penalties). We agree with petitioner's counsel when he observes that the General Assembly "no doubt identified the importance of the motorist being aware that under the new driving while imbibing law a refusal to submit to a chemical test now had criminal as well as civil consequences." Unfortunately, the current DL-26 form does not indicate, with any degree of accuracy, what those criminal consequences are. In this case, Mr. Garner had had a prior conviction for driving under the influence. Therefore, he faced a mandatory minimum term of not less than ninety days. Petitioner testified (and again we have no reason to disbelieve him) that had he known that he faced a minimum jail term of ninety days, he would have not refused the breath test. The pertinent part of the prior implied consent law, as it pertains to warnings by the police, simply provided that the person be informed that his operating privileges would be suspended upon refusal to submit to chemical testing. Once the Commonwealth met its burden of proof with regard to this warning, it was the driver's responsibility to prove that he was not capable of making a knowing and conscious refusal to take the test. This, of course, is a factual determination made by the trial court. Com., Dept. of Transp. v O'Connell, 555 A.2d 873 (Pa. 1989). Under the recently enacted statute, the motorist must not only be informed that his license would be suspended upon refusal but that, in addition, that the person will be subject to the criminal penalties provided for in the statute. Nowhere on the DL-26 or in anything that 3 04-1825 CIVIL Officer Kidman said to Mr. Garner was there an indication that the minimum penalty was, in fact, ninety days imprisonment. It would be presumptuous of the Court of Common Pleas to set out, word for word, the text of an adequate DL-26 form. Common sense tells us, though, that a motorist should be warned concerning the potentially most serious consequence rather than the least serious consequence. Here, Mr. Garner was informed that he faced a minimum of seventy-two hours in jail. In fact, he faced a minimum of ninety days in jail. The information which was given to him was, plainly put, misleading. Moreover, Mr. Garner was discouraged from seeking any clarification by the admonition that if he did so, he would be deemed to have refused the test. The Department of Transportation, Bureau of Driver Licensing, argues that the DL-26 will become too complicated if there is literal compliance with the DUI law. The Department suggests that any complexity in the form should be avoided because of the increased likelihood of confusion to an intoxicated motorist. This is akin to suggesting that accuracy in the form is unimportant because the form will not be understood anyway. AND NOW, this 26th ORDER day of August, 2004, following hearing and careful consideration of the briefs filed by the parties, the appeal filed in the above-referenced matter is SUSTAINED and the notice of the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, mailed March 26,2004, suspending the petitioner's driver's license for a period of eighteen months is VACATED. BY THE COURT, Kevin A. Hess, 1. 4 04-1825 CIVIL David Hershey, Esquire F or the Appellant Michael E. McHale Certified Legal Intern Beverly 1. Points, Esquire For PennDOT :rlm 5 JOHN GARNER, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 04-1815 CIVIL COMMONWEALTH OF PA, DEPARTMENT OF TRANS., BUREAU OF LICENSING, Appellee LICENSE SUSPENSION APPEAL IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE HESS, 1. ORDER AND NOW, this 26th day of August, 2004, following hearing and careful consideration of the briefs filed by the parties, the appeal filed in the above-referenced matter is SUSTAINED and the notice of the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, mailed March 26,2004, suspending the petitioner's driver's license for a period of eighteen months is VACATED. BY THE COURT, Kevin A. Hess, 1. David Hershey, Esquire F or the Appellant Michael E. McHale Certified Legal Intern Beverly 1. Points, Esquire For PennDOT :rlm