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HomeMy WebLinkAbout95-0330 Civil COMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, : CUMBERLAND COUNTY, PENNSYLVANIA BUREAU OF DRIVER LICENSING, : Appellee : : v. : CIVIL ACTION - LAW : WALTER P. MATTIS, : Appellant : NO. 95-0330 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., June ~", 1995. This case arises out of the suspension of the operating privilege of Walter P. Mattis (Appellant) following his alleged refusal to submit to a chemical test for the purpose of determining the alcoholic content of his blood, pursuant to Section 1547 of the Vehicle Code.~ Following a hearing on April 12, 1995, on Appellant's appeal from the suspension, this court upheld the suspension. Appellant filed a notice of appeal to the Commonwealth Court on May 12, 1995. On May 23, 1995, this court directed him to file a statement of matters complained of on appeal within 14 days.2 As of this date, Appellant has failed to do so. This opinion in support of the court's order of April 12, 1995, upholding the suspension of Appellant's operating privilege, is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF THE FACTS On Saturday, November 26, 1994, at approximately 3:00 p.m., ~ Act of June 17, 1976, P.L. §1, as amended, 75 Pa. C.S. ~1547 (Supp. 1995). 2 See Pa. R.A.P. 1925(b). NO. 95-0330 CIVIL TERM Detective Earl Bock of the Mechanicsburg Borough Police Department received information from the Cumberland County dispatcher. The dispatcher informed Detective Bock that a private citizen was following another driver whom the citizen believed to be driving under the influence of alcohol.3 The citizen (later identified as James Green) described the driving as erratic; the driver (later identified as Appellant) was said to be crossing the center line and driving off the side of the road.4 Green testified at the license suspension hearing - credibly, in the court's view- that Appellant was also not driving at a constant speed5 and was stopping abruptly at traffic signals.6 Green followed Appellant to a housing complex where Appellant exited his car and entered a nearby condominium. Green then waited in the parking lot of the complex for Detective Bock to arrive, whereupon Green showed the Detective the condominium that the Appellant had just entered. ? Detective Bock knocked on the condominium's door, and a woman (who later identified herself as Appellant's wife) answered. Detective Bock asked the woman to 3 Hearing, Commonwealth of Pennsylvania, Department of Transportation v. Mattis, No. 95-0330 Civil Term, April 12, 1995, N.T. 5. (hereinafter N.T. __). 4 N.T. 6. 5 N.T. 35. ~ N.T. 36. 7 N.T. 6. 2 NO. 95-0330 CIVIL TERM please get the man who had entered the dwelling. When Appellant came to the door, he appeared to be intoxicated. His speech was slurred, and he could not stand very well.8 Detective Bock also detected a strong odor of an alcoholic beverage on Appellant.9 Appellant subsequently supported himself on a vehicle.~° Because of Appellant's apparent level of intoxication, Detective Bock decided against having him perform certain field sobriety tests, out of concern for Appellant's safety. ~ With regard to his alcohol consumption prior to the operation of his vehicle, Appellant testified that he had consumed two brandies within a six-hour period.~2 Appellant also insisted in testimony that, during the interval between the time of his arrival at home and the time of the Detective's arrival, he had consumed 28 ounces of wine and had taken three different types of medication for back spasms and pain.~3 However, Appellant's wife told Detective Bock on the scene that her husband had not consumed any alcohol since he had arrived at home.TM Detective Bock believed N.T. 7. N.T. 8. N.T. 7. N.T. 7. N.T. 53. N.T. 38. N.T. 9. 3 NO. 95-0330 CIVIL TERM Appellant's wife - reasonably, in the court's view - because he did not think that enough time had passed between Appellant's arrival at his residence and the time the Detective arrived for Appellant to consume 28 ounces of wine.~ The Detective placed Appellant under arrest for driving under the influence of alcohol. Detective Sock informed Appellant that they were going to nearby Seidle Hospital for a blood alcohol test, but the Detective did not at that time specifically ask Appellant to consent to a blood test.~6 Upon their arrival at Seidle Hospital, Detective Bock learned that the hospital did not have anyone available to draw the blood. ~? When Detective Bock informed Appellant that they would have to conduct the test at Harrisburg Hospital, Appellant said he would not allow Harrisburg Hospital to administer the test.~8 Detective Bock then twice explained to Appellant the consequences of a test refusal, and Appellant twice refused to take the test.~9 At the police station, Detective Bock read verbatim to Appellant the implied consent portion of a form titled Chemical Testing Warnings and Report of Refusal to Submit To Chemical Id. N.T. 23. N.T. 9. Id. N.T. 10. 4 NO. 95-0330 CIVIL TERM Testing As Authorized by Section 1547 of the Vehicle Code.2° The form contained the following warnings: 1. Please be advised that you are now under arrest for driving under the influence of alcohol or a controlled substance .... 2. I am requesting that you submit to a chemical test of blood .... 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 ·.. do not apply to the chemical testing procedure under Pennsylvania's Implied Consent Law .... 2~ Appellant himself then read these warnings and signed the form, indicating his refusal to submit to a test.22 The form also contained the following affidavit, signed by Detective Bock: 1. The above motorist was placed under arrest for driving under the influence of alcohol or a controlled substance ... and there were reasonable grounds to believe that the above motorist had been driving, operating, or in actual physical control of the movement of motor vehicle while under the influence of alcohol or a controlled substance .... 2. The above motorist was requested to submit to chemical testing. Id. Commonwealth's Exhibit 1. Id. 5 NO. 95-0330 CIVIL TERM 3. The above motorist was informed by a police officer of the chemical test warning 4. The above named motorist refused to submit to chemical testing.2~ Appellant testified at the hearing herein that his refusal to take the test at Harrisburg Hospital was attributable to a past experience when the hospital had treated him poorly.24 Appellant stated that he had avoided Harrisburg Hospital to "keep [his] sanity."~5 Appellant testified that he had been willing to take the test at Seidle, Holy Spirit Hospital, or Polyclinic.~6 On December 29, 1994, the Department of Transportation sent Appellant a notice stating that as a result of his refusal to take a chemical alcohol test pursuant to Section 1547 of the Vehicle Code, the Department was suspending his operating privilege for one year effective February 9, 1995. Following Appellant's appeal from the suspension, and at the conclusion of the aforesaid hearing before this court, the court issued the following order: AND NOW, this 12th day of April, 1995, upon consideration of the Appeal of the Motor Vehicle License Suspension from the Order of the Director of the Bureau of Driver Licensing, Department of Transportation, and Commonwealth's Exhibit 1. N.T. 46. Appellant's Appeal of License Suspension, paragraph 3. N.T. 48. 6 NO. 95-0330 CIVIL TERM following a hearing, the appeal is DENIED. From this order, Appellant has filed an appeal to the Commonwealth Court of Pennsylvania. APPLICATION OF THE LAW Driving in Pennsylvania is said to be a privilege, not a right.27 Accordingly, Section 1547(a) of the Vehicle Code provides that: Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if the police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle: (a) While under the influence of alcohol or a controlled substance or both .... Section 1547(b)(1) further states that: 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 twelve months. In cases involving the suspension of a driver's license for 27 See Act of June 17, 1976, P.L. 162, ~1, 75 Pa. C.S. ~102 (1995 Supp.). 7 NO. 95-0330 CIVIL TERM refusal to submit to chemical testing, the Department of Transportation has the initial burden of proving: (1) that the licensee was placed under arrest for driving while under the influence; (2) that he was requested to submit to chemical testing; (3) that he was informed that a refusal to submit to such testing would result in a suspension of his operating privileges; and (4) that the licensee refused to submit to the test.28 Pennsylvania courts have consistently defined refusal as "anything substantially short of an unqualified, unequivocal assent to an officer's request to the arrested motorist." In re Appeal of Miller, 79 Pa. Commw. 648, 650, 470 A.2d 213 (1984). Whether a licensee's conduct as found by the fact-finder amounts to a refusal is a question of law. Commonwealth, Dep't of Transp. v. Groscost, 142 Pa. Commw. 36, 40, 596 A.2d 1217, 1219 (1991). In interpreting Section 1547 of the Vehicle Code, the courts as a general rule have "long required more than mere verbal assent to take the test and [have] required that the licensee actually take and complete the test." Commonwealth, Dep't of Transp. v. Kilrain, 140 Pa. Commw. 484, 488, 593 A.2d 932, 934 (1991). In Colgan v. Commonwealth, Dep't. of Transp., 127 Pa. Commw. 479, 481, 561 A.2d 1341, 1342 (1989), the court further defined 28 Commonwealth, Dep't of Transp. v. Kilrain, 140 Pa. Commw. 484, 487, 593 A.2d 932, 934 (1994). 8 NO. 95-0330 CIVIL TERM refusal by stating that "a refusal ... need not be expressed in words but can be implied from a driver's actions." The licensee in Colgan agreed to take a blood test, but he qualified his acceptance with the condition that the blood be drawn from his little toe. The court held that "limitations upon the testing procedure ... constitute a refusal." Id. Once the Department has established that the driver failed to submit to a chemical test, the burden shifts to the driver to "prove by competent medical evidence that he was physically unable to take the test or not capable of making a knowing and conscious refusal." Commonwealth, Dep't of Transp. v. Mease, 148 Pa. Commw. 14, 18, 610 A.2d 76 (1991). Medical evidence is not a "per se requirement; however, absent medical testimony, 'bare assertions' of physical incapacity are insufficient." Commonwealth, Dep't of Transp. v. Holsten, 150 Pa. Commw. 1, 6, 615 A.2d 113, 115 (1994), citing Commonwealth, Dep't of Transp. v. Groscost, 142 Pa. Commw. 36, 41, 596 A.2d 1217, 1220 (1991). In Mease, the licensee attempted to show that he was under the influence of a prescription medicine for an ear infection and was therefore incapable of making a knowing and conscious refusal. The licensee presented only a copy of the prescription as evidence. Since Mease did not provide "competent medical testimony" regarding the medication's side effects, the court refused to recognize an excuse for the licensee's refusal. Commonwealth, Dep't of Transp. 9 NO. 95-0330 CIVIL TERM v. Mease, 148 Pa. Commw. 14, 18, 610 A.2d 76, 79 (1991). APPLICATION OF LAW TO THE FACTS The Department herein, in the court's view, met the criteria necessary to suspend Appellant's operating privilege. From the time of his arrest to the time he left the police station, Appellant neither orally assented to a chemical alcohol test, nor consented in writing to such a procedure. Appellant was fully apprised of the consequences of his refusal. Detective Bock explained the repercussions twice to Mr. Mattis, and the Appellant refused twice to take the test. Appellant was then administered a very detailed implied consent warning, read it, and signified his refusal to submit to a test in writing. Even if Appellant had expressed verbally an agreement to submit to a test at Seidle Hospital or at a named hospital other than Harrisburg, his verbal assent would have been irrelevant for the purposes of refusal. A demand that the test not occur at a hospital reasonably selected by the officer is a limitation upon the testing procedure falling "substantially short of an unqualified, unequivocal assent." Appeal of Miller, 79 Pa. Commw. 648, 650, 470 A.2d 213 (1984). Furthermore, Appellant failed to produce the proof necessary to establish the excuse that he lacked the capacity to make a knowing and conscious refusal. Appellant's medical evidence regarding his condition was limited to doctors' letters concerning 10 NO. 95-0330 CIVIL TERM past medical problems, hospital bills, and prescription information. This evidence established no competent nexus between Appellant's medical problems and his alleged inability to make a knowing and conscious refusal. In the court's view, the evidence presented at the hearing in fact demonstrated affirmatively that Appellant was quite cognizant of the decision he made and of its consequences. For these reasons, it is believed that the Court'properly upheld the suspension of the Appellant's operating privilege. George Kabusk, Esq. Assistant Counsel Traffic Safety Section Department of Transportation 103 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorney for Appellee Walter p. Mattis 831 Old Silver Spring Road Mechanicsburg, PA 17055 Appellant, Pro Se :rc 11