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HomeMy WebLinkAbout93-3900 Civil COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION : CUMBERLAND COUNTY, PENNSYLVANIA BUREAU OF DRIVER LICENSING, : Plaintiff : : v. : CIVIL ACTION - LAW : WILLIAM E. GRAF, : Defendant : 3900 CIVIL 1993 IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE OLER, J. 9RDER OF COURT AND NOW, this ~day of April, 1994, upon consideration of ~ppellant's Appeal From License Suspension, and following a hearing on the matter, the appeal is DENIED. BY THE COURT, J~Wesley Oler,~Jr., j. Matthew X. Haeckler, Esq. Assistant Counsel Traffic Safety Section Department of Transportation 103 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorney for the Commonwealth Lawrence R. Wieder, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant .re COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION : CUMBERLAND COUNTY, PENNSYLVANIA BUREAU OF DRIVER LICENSING, : Plaintiff : : v. : CIVIL ACTION - LAW WILLIAM E. GRAF, : Defendant : 3900 CIVIL 1993 IN RE: APPEAL FROM LICENSE SUSPENSION ~EFORE OLER, j. QPINION AND ORDER OF COURT Oler, j. The present case is an appeal from a license suspension under Section 1547 of the Motor Vehicle Code~ filed by William E. Graf (Appellant). A hearing on Appellant's appeal was held before the undersigned judge on February 14, 1994. Based upon the evidence and testimony presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered: FINDINGS OF FACT 1. Appellant is William E. Graf. 2. On October 29, 1993, Patrolman Joseph W. Dows of the Silver Spring Township Police Department observed appellant operating a motor vehicle in the vicinity of Routes 114 and 11 in Silver Spring Township, Cumberland County, Pennsylvania. 3. At this time, Appellant appeared to be exceeding the speed limit,2 driving at erratic speeds, and weaving between the lines; ~ Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa . ~1547 (1993 Supp.) · C.S 2 Patrolman Dows testified that Appellant was travelling between 70 and 83 miles per hour in a 35 mile-per-hour zone. 3900 Civil 1993 based upon this observed driving behavior, Patrolman Dows pulled Appellant over. 4. After Patrolman Dows approached the driver's side of Appellant,s car and obtained his driver,s license, he detected the odor of an alcoholic beverage and noticed that Appellant,s speech was slow. 5. Additionally, when asked to exit from his car, Appellant. was staggering and used the car for support. 6. Based upon these observations, Patrolman Dows requested Appellant to perform two field sobriety tests, one of which Appellant performed but did not pass and the other of which he was incapable of performing;3 the officer consequently placed Appellant under arrest. 7. Patrolman Dows then took Appellant to a booking center, where Appellant was read an implied consent warning relating to the breathalyzer test; the pertinent parts of the warning read to Appellant were as follows: 3. It is my duty 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, commonly known as the Miranda Rights, including the right to speak 3 The two tests were the walk-and-turn and the one-leg stand. Appellant did not pass the former and could not do the latter. 2 3900 Civil 1993 with a lawyer and the right to remain silent, apply only to criminal prosecutions and do not apply to the chemical testing procedure under Pennsylvania,s Implied Consent Law, which is a civil, not a criminal proceeding. b) 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 a 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 refusal and your operating privilege will be suspended for one year. c) Your refusal to submit to chemical testing under the Implied Consent Law may be introduced into evidence in a criminal prosecution for driving while under the influence of alcohol or a controlled substance.4 8. Appellant was then taken to Sergeant William Goodhart, the booking officer at the center, where Appellant performed three field sobriety tests and engaged in a conversation with Sergeant Goodhart pertaining to the implied consent law and the consequences of a refusal to submit to chemical testing. 9. The pertinent portions of this conversation were as follows: Sergeant Goodhart: Now, if you don't submit to this test, your driving license will be suspended by the Department of Transportation for a period of one year Do you understand that? ' Mr. Graf: Yes. Commonwealth,s Exhibit 1. 3 3900 Civil 1993 Sergeant Goodhart: Okay. Knowing that, do you want to take a breath test? Mr. Graf: Yeah, and what happens if I do? Sergeant Goodhart: Then we can just decide right then and there what your blood alcohol level is. Mr. Graf: Well, is there like a more severe punishment or no? Sergeant Goodhart: You'll lose your license for a year if you don't take the test .... That's all I can tell you. If you're under the influence, you'll lose your license. If you take the test, you could lose your license. It's up to you. Like I said, if you don't take the test, if you refuse, you'll lose your license for a year .... Mr. Graf: I want a blood test. Sergeant Goodhart: Well, you don't have that option. The officer brought you here for breath testing. Mr. Graf: I'll pass. Sergeant Goodhart: You don't want to take it? Mr. Graf: Nope. S 10. At the hearing, Sergeant Goodhart testified that he could not recall whether he himself had given Appellant either the implied consent warning or Miranda warnings. 11. Based upon Appellant's refusal to submit to the breathalyzer test, Patrolman Dows notified the Pennsylvania Department of Transportation of a test refusal, and Appellant's ~ Appellant's Exhibit 2-A. 4 3900 Civil 1993 license was suspended. 12. Appellant and the Commonwealth have stipulated that Patrolman Dows had reasonable grounds to stop Appellant; that Appellant refused to take the chemical test when requested to do so; and that Appellant was not confused regarding the fact that he had no right to have an attorney present during the breathalyzer test. 13. Appellant made a voluntary, knowing and conscious refusal to submit to the test. DISCUSSION Appellant maintains in this appeal that his refusal to take the chemical test was not an informed one. The pertinent portions of Section 1547 of the Motor Vehicle Code provide as follows: (a) General rule - Any person who drives · .. 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 .... (b) Suspension for refusal - (1) If any person placed under arrest for a violation of Section 3731 (relating to driving under 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. 5 3900 Civil 1993 (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. Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S. S1547 (1993 Supp.). To sustain a license suspension under this section of the Vehicle Code, the Department of Transportation "must prove that the driver (1) was arrested for driving under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in a license suspension... Commonwealth, Dept. of Transportation v. Zeltins, 150 Pa. Commw. 44, 50-51, 614 A.2d 349, 353 (1992). Once the Department has established these elements, the burden then shifts to the driver "to prove that he was not capable of making a knowing and conscious refusal to take the test. This is a factual determination which is to be made by the trial court.'. Commonwealth, Dept. of Transportation v. O'Connell, 521 Pa. 242, 252, 555 A.2d 873, 876 (1989). On the issue of whether a warning of a potential license suspension provided to a driver is sufficient to inform the driver of the consequences of his or her refusal to submit to a chemical test, the Supreme Court of Pennsylvania has held that, "in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police [must] 6 3900 Civil 1993 instruct the arrestee that [the rights guaranteed by Miranda] are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney.., Commonwealth, Dept. of Transportation v. O'Connell, 521 Pa. 242, 252, 555 A.2d 873, 878 (1989). In O'Connell, the Court addressed this duty of police in a situation where they have given Miranda warnings to the arrestee prior to requesting the arrestee to submit to chemical testing. However, even if no Miranda warnings are given, when there is "an overt manifestation of confusion (normally appearing as a licensee,s request to call an attorney) an O'Connell duty does arise... Commonwealth, Dept. of Transportation v. Sorg, 147 Pa. Commw. 82, 91, 606 A.2d 1270, 1274, allocatur denied, 531 Pa. 657, 613 A.2d 561 (1992). Yet, "where the facts ... indicate that the licensee,s refusal to submit to chemical testing did not involve any confusion as to the applicability of Miranda rights, O'Connell is not applicable... Halford v. Commonwealth, Dept. of Transportation, 136 Pa. Commw. 421, 424, 583 A.2d 70, 72 (1990), allocatur denied, 527 Pa. 670, 593 A.2d 844 (1991). Finally, with respect to the driver's burden of proving that he was not capable of making a knowing and conscious refusal to take the test, it has been held that "where the correct warnings are given, and where a licensee is physically and mentally capable of understanding them, a licensee is presumed to understand... Bell v. Commonwealth, Dept. of Transportation, 147 Pa. Commw. 157, 165, 3900 Civil 1993 607 A.2d 304, 309, allocatur denied, 532 Pa. 666, 618 A.2d 403 (1992) (emphasis in original). A licensee may rebut the presumption by a showing of incapacity, and, in the absence of an obvious medical infirmity, competent medical evidence may be required to overcome this presumption. Absent such evidence, "'bare assertions, of physical incapacity are insufficient.., Commonwealth, Dept. of Transportation v. Groscost, 142 Pa. Commw. 36, 41, 596 A.2d 1217, 1220 (1991). In reviewing the implied consent warnings read to Appellant by Patrolman Dows, the Court is of the opinion that these warnings informed Appellant of the consequences of a refusal to submit to testing and satisfied any applicable requirements of O'Connell. Moreover, the conversation between Appellant and Sergeant Goodhart reveals that Appellant was again informed of the primary consequence of his refusal to take the breathalyzer test and was in no way misled. Appellant,s contention that he was confused about the consequences of his refusal to submit to the breathalyzer test is not supported by evidence other than Appellant,s bare assertions. Thus, the presumption that Appellant understood what was explained to him by Patrolman Dows and Sergeant Goodhart has not been rebutted. Consequently, the following Order of Court shall be entered: 8 3900 Civil 1993 QRDER OF COURT AND NOW, this ~ day of April, 1994, upon consideration of Appellant,s Appeal From License Suspension, and following a hearing on the matter, the appeal is DENIED. BY THE COURT, J. Wesley Oler, Jr., j. Matthew X. Haeckler, Esq. Assistant Counsel Traffic Safety Section epartment of Transportation 03 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorney for the Commonwealth Lawrence R. Wieder, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant :rc 9