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HomeMy WebLinkAbout99-6104 civilSTEVE O. FISHER, PETITIONER COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-6104 CIVIL TERM LICENSE SUSPENSION APPEAL BEFORE BAYLEY, J. facts. On September 5, 1999, Officer Brian Sunday of the Upper Allen Township Police stopped petitioner for speeding at 76.9 miles per hour in a 55 mile per hour zone. Officer Sunday told Fisher that he had a video and audio taping system in his patrol car, and he asked for permission to record their conversation. Fisher consented. Fisher had a strong odor of alcohol about his person and he failed one-leg stand and walk- and-turn field sobriety tests. When asked how much he had to drink, Fisher said "not enough that I couldn't make it home." Fisher was then placed in a patrol car where he Bayley, J., December 22, 1999:- The Department of Transportation suspended the driving privilege of Steve O. Fisher for a period of one year for his refusal, pursuant to the Vehicle Code at 75 Pa.C.S. Section 1547(b)(1), to take a breath test following his arrest for driving under the influence. A hearing was conducted on December 13, 1999. We find the following OPINION AND ORDER OF COURT 99-6104 CIVIL TERM was informed of his rights under the Implied Consent Law and asked by Officer Sunday to take a breath test. Fisher told the officer that he did not understand the instructions. The officer then took him to a booking center. Upon arrival at the center, Officer Sunday turned Fisher over to Agents Peter Beauduy and Kathleen Cook. Fisher was immediately confrontational, argumentative and uncooperative. Cook turned on a video and audio taping system without telling Fisher although there were numerous signs in the booking center advising of the system? Fisher asked Agent Beauduy if he could call an attorney. Beauduy told him that he was not entitled to an attorney until after the processing was completed. Fisher asked Beauduy if the taping system was on and Beauduy told him that it was not. Beauduy did not know at that point that the taping system had been activated by Agent. Cook, and although Cook heard Beauduy tell Fisher that the system was not on she did not correct the error until later during the proceeding. Fisher was then advised of his Miranda rights? He told Agent Cook that he did not understand those rights. He never waived his rights. Agent Cook then advised Fisher of the Implied Consent Law. Fisher repeatedly said that he did not understand what she told him and he refused to take a test. Agent Cook noted the refusal. She then asked Fisher a series of questions which she wrote on an intoxication report. ~ Agent Cook testified that when an arrestee is uncooperative she immediately turns on the tape and audio system. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). -2- 99-6104 CIVIL TERM DISCUSSION The Vehicle Code at 75 Pa.C.S. Section 1547(b) provides: (1) If any person placed under arrest for a violation of section 3731 (relating to driving under the influence of alcohol or 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 for a period of 12 months. (2) It shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended upon refusal to submit to chemical testing. At the hearing petitioner testified that he did not understand the relationship of the Miranda warnings and his taking a chemical test. Before asking Fisher to take a test, Agent Cook told him: [y]ou are now under arrest for driving under the influence of alcohol or a controlled substance pursuant to Section 3731 of the Vehicle Code. I am requesting that you submit to a chemical test of your breath. It is my duty to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for a period of one year. The constitutional rights that you have as a criminal defendant, commonly known as Miranda Rights, including a right to speak to a lawyer or right to remain silent, apply only to criminal prosecutions, and do not apply to the chemical testing procedure under Pennsylvania Implied Consent Law, which is a civil not a criminal procedure. 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 any 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 a refusal, and your operating privileges will be suspended for one year. Your refusal to submit to the chemical testing under the implied consent law may be introduced into evidence in a criminal prosecution for driving under the influence of alcohol or controlled substance. These warnings are known as the O'Connell warnings. Commonwealth v. -3- 99-6104 CIVIL TERM O'Connell, 521 Pa. 242 (1989). In Commonwealth, Department of Transportation v. Scott, 684 A.2d 539 (1996), the Supreme Court of Pennsylvania stated: [o]nce a motorist has been properly advised of his O'Connell warnings, a refusal to submit to chemical testing under the terms of the Implied Consent Law will not be excused as unknowing on the basis of the motorist's subjective beliers regarding the interplay between the Implied Consent Law and his Miranda rights. Fisher was properly advised of his O'Connell warnings and he refused to submit to a chemical test. Therefore, his telling us that he did not understand the relationship between his Miranda rights and the Implied Consent Law is of no import. Citing Commonwealth v. Mclvor, 670 A.2d 697 (Pa. Super. 1996), Fisher maintains, that while he was at the booking center, Agents Beauduy and Cook violated the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. Section 5701 et seq. In DiPaolo v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 700 A.2d 569 (Pa. Commw. 1997), the Commonwealth Court of Pennsylvania stated: To sustain a license suspension under Section 1547 of the Vehicle Code, it is DOT's burden to establish the following: (1) the motorist was arrested for drunken driving by a police officer who had reasonable grounds to believe that the motorist was operating, or actually controlling or operating the movement of a motor vehicle, while under the influence of alcohol or a controlled substance; (2) the motorist was asked to submit to a chemical test; (3) he or she refused to do so; and (4) the motorist was warned that refusing the test would result in a license suspension. Vinansky v. Commonwealth Department of Transportation, 665 A.2d 860 (Pa. Cmwlth. 1995). (Footnote omitted). In DiPaolo, the Court stated that the validity of a motorist's arrest for driving under the -4- 99-6104 CIVIL TERM influence does not affect PennDOT's authority to suspend a driver's license for refusing to submit to chemical testing. Likewise, even if Agents Beauduy and Cook violated the Wiretapping and Electronics Surveillance Control Act while Fisher was at the booking center, it would not affect this civil suspension of Fisher's driving privilege for having refused to take a test pursuant to Section 1547 of the Vehicle Code. Accordingly, we need not determine if the Wiretapping and Electronics Surveillance Control Act was violated nor if the statements Fisher made to Agent Cook after he refused the test, but while he was in custody and having not waived his Miranda rights, are suppressible in a criminal prosecution for driving under the influence. For the foregoing reasons, the following order is entered. AND NOW, this ORDER OF COURT ')--/L~:_. day of December, 1999, this appeal from a license suspension for a period of one year, IS DISMISSED. By the Courtl ..... ~'~,~. Edgar B. Bay'~ey, J. John Mancke, Esquire For Petitioner Matthew Haeckler, Esquire For the Respondent :saa -5-