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HomeMy WebLinkAbout2009-4392 Civil JOHN W. GUILLIAMS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION, BUREAU OF : DRIVER LICENSING : 09-4392 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND ORDER OF COURT Bayley, J., October 13, 2009:-- PennDOT suspended the driving privilege of John W. Guilliams for one year for failure to submit to a test of his blood following his arrest for driving under the influence. Guilliams filed this appeal upon which a hearing was conducted on October 7, 2009. We find the following facts. On May 23, 2009, Patrolman Andrew Bassler, of the Silver Spring Township Police Department, arrested John Guilliams for driving under the influence. Bassler took Guilliams to the Holy Spirit Hospital for a test of his blood to determine his blood alcohol content. Bassler read the Implied Consent warnings to Guilliams from Form DL 26, after which Guilliams signed the form and said he would undertake a test. An experienced phlebotomist injected a needle into Guilliams’ arm. Guilliams would not hold still and disregarded instructions to hold his fist tight. For about thirty to forty seconds the phlebotomist repositioned the needle in the arm but was unable to inject it into a vein from which blood could be drawn. The needle was withdrawn and the 09-4392 CIVIL TERM phlebotomist said she would try again. Guilliams said he had already given a test and would not allow the phlebotomist to “stick him again.” Another experienced phlebotomist said she would perform the procedure but petitioner was adamant in his 1 refusal to allow another attempt to draw his blood. After approximately four or five minutes of trying to convince petitioner to allow another attempt to draw blood Patrolman Bassler deemed a refusal. At the hearing, petitioner testified that it hurt when the attempt was made to draw is blood but he did not tell that to either of the phlebotomists or the police officer. He testified that “I never refused a blood test.” Winebarger v. Commonwealth, Department of Transportation, Bureau of In Driver Licensing, 655 A.2d 1093 (Pa. Commw. 1995), Winebarger was arrested for driving under the influence and was taken for a blood test. After unsuccessful attempts to strike a vein to draw blood from each of his arms he refused to allow any further attempt. A police officer deemed a refusal which was upheld by the trial court and affirmed by the Commonwealth Court of Pennsylvania. The Commonwealth Court stated that the issue was whether as a matter of law “that consent to one stick” into each arm should be sufficient, rendering any subsequent refusal meaningless for compliance purposes. The Commonwealth Court declined to do so, stating that they would not quantify how many attempts at drawing blood will be deemed proper consent, preferring instead to continue to analyze the facts of each case independently. The __________ 1 The medical protocol at Holy Spirit Hospital allows four attempts to inject a needle into a vein to draw blood. If blood is still not obtained there must be a delay of twenty hours -2- 09-4392 CIVIL TERM Court noted that once the Commonwealth has shown that a motorist has refused to submit to testing the burden shifts to the motorist to provide by competent medical evidence that he was physically unable to take the test. sub judice, In the case Guilliams refused any effort to draw his blood after one attempt had been made. He offered no medical evidence that he was physically unable to provide blood. As he testified, he made the decision, following the one failed effort, that he never refused a blood test. He is wrong. There was a deemed refusal. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of October, 2009, the appeal of John Guilliams from the suspension of his operating privilege for a refusal to allow testing of his blood IS DENIED. following his arrest for driving under the influence, By the Court, Edgar B. Bayley, J. Heather N. Orisko, Esquire 2131 Market Street Camp Hill, PA 17011 For Petitioner Philip M. Bricknell, Esquire For the Department of Transportation before a further attempt can be made. -3- 09-4392 CIVIL TERM :sal -4- JOHN W. GUILLIAMS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION, BUREAU OF : DRIVER LICENSING : 09-4392 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE ORDER OF COURT AND NOW, this day of October, 2009, the appeal of John Guilliams from the suspension of his operating privilege for a refusal to allow testing of his blood IS DENIED. following his arrest for driving under the influence, By the Court, Edgar B. Bayley, J. Heather N. Orisko, Esquire 2131 Market Street Camp Hill, PA 17011 For Petitioner Philip M. Bricknell, Esquire For the Department of Transportation :sal