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HomeMy WebLinkAbout94-0665 Civil COMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : DAVID PETER MOLINARO, : Defendant : 94-0665 CIVIL TERM IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE OLER, J. ORDER OF COURT AND NOW, this ~day of August, 1994, upon consideration of Appellant's Petition on Appeal from Suspension of Operator's License, and following a hearing on the matter, the petition is DENIED. BY THE COURT, 0esley O1~/ Matthew X. Haeckler, Esq. Assistant Counsel Traffic Safety Section Department of Transportation 103 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorney for Commonwealth Felix J. DeGuilio, Esq. Suite 1509, Lawyers Building 428 Forbes Avenue Pittsburgh, PA 15219 Attorney for Defendant :rc COMMONWEATH OF PENNSYLVANIA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBE~D COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : DAVID PETER MOLINARO, : Defendant : 94-0665 CIVIL TERM IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. The present case was commenced in this Court by a petition for appeal from license suspension filed by Defendant, David Peter Molinaro (Appellant). The suspension was imposed by Plaintiff, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Appellee), pursuant to Section 1547 of the Vehicle Code.~ A hearing on Appellant's petition was held before the undersigned judge on May 9, 1994. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered: FINDINGS OF FACT 1. Appellant is David Peter Molinaro, residing at 12 West Locust Street, Mechanicsburg, Cumberland County, Pennsylvania. 2. Appellee is the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Room 103, Transportation and Safety Building, Harrisburg, Dauphin County, Pennsylvania. ~ Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S.A. S1547 (1994 Supp.) (provision for license suspension in event of blood alcohol test refusal). 94-0665 CIVIL TERM 3. At approximately 2:18 on the morning of Saturday, December 18, 1993, Officer Jeffrey D. Kurtz of the Upper Allen Township Police Department had positioned himself in the vicinity of a d.u.i, checkpoint; he observed Appellant operating a motor vehicle in a northerly direction on South Market Street. 4. Officer Kurtz received a radio communication that Appellant had passed through the checkpoint without stopping as required. 5. Officer Kurtz began to pursue Appellant and eventually stopped him in the first block of West Stouffer Alley, Mechanicsburg, Cumberland County, Pennsylvania. 6. As Officer Kurtz approached the vehicle and began to speak with Appellant, he detected the odor of an alcoholic beverage and noticed that Appellant's eyes were glassy. 7. Officer Kurtz asked Appellant to perform some field sobriety tests. 8. After Appellant had exited his vehicle, Officer Kurtz noticed that Appellant "had a slight weave about him as he walked and as he would stand still.-2 9. Appellant stated that he would not perform any tests because he had been stopped for no reason. 10. Officer Kurtz spoke with Appellant for a few more minutes 2 N.T. 9, Hearing, May 9, 1994, Commonwealth v. Molinaro, 94- 0665 Civil Term (Cumberland County). 2 94-0665 CIVIL TERM and then asked Appellant a second time to perform some field sobriety tests. 11. Appellant again refused and Officer Kurtz placed Appellant in handcuffs to transport him back to the checkpoint location. 12. Upon his arrival at the checkpoint, Appellant was placed inside a waiting ambulance. 13. Officer Kurtz advised Appellant that he was under arrest for driving under the influence of alcohol or a controlled substance. 14. Officer Kurtz asked Appellant if he would allow a blood sample to be drawn and Appellant refused. 15. Officer Kurtz then advised Appellant of the implied consent law3 by reading the following to him:4 Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth has given consent to one or more chemical tests for the purpose of determining a blood alcohol content. The constitutional rights you have as a criminal defendant, commonly known as the Miranda rights, including the right to speak with a lawyer and the right to remain silent, apply only to criminal prosecutions and do not apply to chemical testing procedure under the Pa.'s Implied Consent Law, which is a civil, not a criminal, proceeding. 3 Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S.A. ~1547 (1994 Supp.). 4 Officer Kurtz read this from a card which he carried in his uniform at all times. 3 94-0665 CIVIL TERM You have no right to speak to a lawyer or anyone else before taking the chemical test, nor do you have the right to remain silent when asked to submit to the chemical test. Unless you agree to submit to the chemical test, your conduct will be deemed to be a refusal, and your operating privilege 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 a controlled substance. 16. Appellant again refused to submit to a chemical test for the purpose of determining blood alcohol content. 17. Officer Kurtz then read to Appellant another implied consent warning:S Please be advised you are now under arrest for driving under the influence of alcohol or a controlled substance pursuant to Section 37316 of the Vehicle Code. I am requesting that you submit to the chemical test of blood. It is my duty as a police officer to inform you that if you refuse to submit to chemical tests, your driving privilege will be suspended for a period of one year. As a police officer, it is my duty to explain to you that the constitutional rights due you in a criminal prosecution as set forth in the Miranda decision do not apply to the chemical testing under the Implied Consent Law. Specifically, you do not have a right to s Officer Kurtz read this warning from a form that is submitted to the Pennsylvania Department of Transportation after someone has refused to submit to chemical testing to determine blood alcohol content. 6 Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S.A. S3731 (1994 Supp.). 4 94-0665 CIVIL TERM consult with a lawyer or anyone else prior to taking the chemical test, nor do you have the right to remain silent when a police officer asks you to submit to the chemical test. Your continued request to speak with a lawyer or anyone else after this explanation is given or your silence when asked to submit to the chemical test will be considered as a refusal of the chemical test subjecting you to the suspension of your driving privilege. 18. Appellant again refused to submit to chemical testing and, in addition, refused to sign the form. 19. Based upon the foregoing, the Pennsylvania Department of Transportation was notified of a test refusal, and Appellant's license was suspended. 20. Miranda warnings were not administered to Appellant, and he did not display any confusion with respect to his right to an attorney in connection with the chemical test.7 21. Appellant was manifestly under and subject to the custody and control of Officer Kurtz at the time that Appellant was asked to submit to chemical testing. 22. Appellant made a voluntary, knowing and conscious refusal to submit to the test. 7 Although Appellant was not given Miranda warnings and did not display any confusion as to his right to an attorney in connection with chemical testing of his blood, he was nevertheless informed that the rights guaranteed by Miranda were inapplicable to the chemical test and that he did not have the right to consult with an attorney. See Findings of Fact 15, 17; cf. Commonwealth, Dept. of Transp. v. O'Connell 521 Pa. 242 252 555 A.2d 873, 876 (1989). ' , , 5 94-0665 CIVIL TERM DISCUSSION ~ontentions of Appellant. In this appeal, Appellant contends the following: (1) that Officer Kurtz failed to place him under arrest before asking him to submit to chemical testing; (2) that Appellant did not knowingly and consciously refuse to submit to chemical testing; and (3) that Appellee failed to prove the existence of a constitutionally sufficient sobriety checkpoint.8 ~tatement of Law. The pertinent portions of Section 1547 of the Vehicle Code provide as follows: (a) General rule. - Any person who drives a motor vehicle in this Commonwealth shall'~ 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 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 8 Appellant,s Brief, pages 12-15. 6 94-0665 CIVIL TERM that the person's operating privilege will be suspended upon refusal to submit to chemical testing. Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S. ~1547 (1994 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 Transp. v. Zeitins, 150 Pa. Commw. 44, 50-51, 614 A.2d 349, 353 (1992). The question of whether or not a driver has been "placed under arrest" for purposes of Section 1547(b) of the Vehicle Code is a factual, rather than a legal determination, and all that is necessary is that the driver be under the custody and control of the person effecting the arrest .... A formal declaration of arrest is not required to satisfy the requirement for suspending a driver's license for refusal to submit to a chemical test; the relevant inquiry is whether the driver, at the time he was asked to submit to the chemical test, should have inferred from the totality of the circumstances that he was under the control and custody of the officer. Commonwealth, Dept. of Transp. v. McGlynn, 147 Pa. Commw. 454, 458- 59, 611A.2d 770, 772-73 (1992). Once the Department has established these elements, the burden 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 7 94-0665 CIVIL TERM determination which is to be made by the trial court." Commonwealth, Dept. of Transp. v. O'Connell, 521 Pa. 242, 252, 555 A.2d 873, 876 (1989). 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 Transp., 147 Pa. Commw. 157, 165, 607 A.2d 304, 309, allocatur denied, 532 Pa. 666, 618 A.2d 403 (1992). 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 Transp. v. Groscost, 142 Pa. Commw. 36, 41, 596 A.2d 1217, 1220 (1991). On the issue of whether the constitutionality of a sobriety checkpoint is pertinent to a license suspension case, the Supreme Court of Pennsylvania has held that the legality of a checkpoint is irrelevant for purposes of a license suspension proceeding. Commonwealth, Dept. of Transp. v. Wysocki, 517 Pa. 175, 179, 535 A.2d 77, 79 (1987). Furthermore, the power of the Department of Transportation to suspend a driver's license for a test refusal is not dependent on the legality of the arrest. Id. Rather, the 94-0665 CIVIL TERM propriety of the suspension for such refusal depends Upon whether the officer had reasonable grounds to believe that the licensee was operating his vehicle under the influence of alcohol. Commonwealth, Dept. of Transp. v. Doyle, 103 Pa. Commw. 490, 493 520 A.2d 917, 918 (1987). , ~aw to facts. On the issue of whether Appellant was placed under arrest, the Court has found that ApPellant was manifestly under and subject to the custody and control of Officer Kurtz at the time that Appellant was asked to submit to testing. Pursuant to Commonwealth, Department of Transportation v. Zeitins,9 the prerequisite of arrest for a valid request to submit to chemical testing has been shown. In reviewing the implied consent warnings read to Appellant by Officer Kurtz, the Court is of the opinion that these warnings informed Appellant of the consequences of a refusal to submit to testing and satisfied the requirements of O,Connell.~O Appellant,s contention that he was confused about the consequences of his refusal to submit to chemical testing for bloo~ alcohol content is not supported by evidence other than Appellant s bare assertions. The presumption that Appellant understood what was explained to him by Officer Kurtz has not been rebutted. 9 150 Pa. Commw. 44, 614 A.2d 249 (1992). ~o Commonwealth, Dept. of Transp v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). - 9 94-0665 CIVIL TERM With respect to the legality of the sobriety checkpoint, a determination in this regard would not advance the inquiry into the propriety of Appellant,s license suspension based on a test refusal. Given what Officer Kurtz had been told and had observed, the Court believes that the officer had reasonable grounds to believe that ApPellant was operating his vehicle while under the influence of alcohol. In the context of a license suspension appeal, this is the relevant factor. For these reasons, the following Order of Court will be entered: QRDER OF COURT AND NOW, this day of August, 1994, Upon consideration of Appellant,s Petition on Appeal from Suspension of Operator,s License, and following a hearing on the matter, the Petition is DENIED. BY THE COURT, J- ~slev 0~ /~ ~ ~ j ~,c/~r.' j. t Matthew X. Haeckler, Esq. Assistant Counsel Traffic Safety Section Department of Transportation 103 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorney for Commonwealth 10 94-0665 CIVIL TERM Felix j. DeGuilio, Esq. SUite 1509, Lawyers Building 428 FOrbes Avenue Pittsburgh, PA 15219 Attorney for Defendant 11