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HomeMy WebLinkAbout94-2482 Civil LAIRD M. LEASK, : IN THE COURT OF COMMON PLEAS OF Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, : Respondent : NO. 94-2482 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL ~EFORE OLER, j. QRDER OF COURT AND NOW, this %~day of October, 1994, upon consideration of Petitioner,s Petition for License Suspension Appeal and following a hearing, the petition is DENIED. BY THE COURT, Matthew X. Haeckler, Esq. Assistant Counsel Traffic Safety Section Department of Transportation 103 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorney for the Commonwealth William T.C. Tully, Esq. John B. Mancke, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorneys for the Petitioner LAIRD M. LEASK, : IN THE COURT OF COMMON PLEAS OF Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, : Respondent : NO. 94-2482 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAl. BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. The present case is an appeal from a license suspension under Section 1547 of the Vehicle Code~ filed by Laird M. Leask (Petitioner). A hearing on Petitioner's appeal was held on Friday, October 7, 1994. Based upon the testimony and other evidence presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered. FINDINGS OF FACT 1. Petitioner is Laird M. Leask. 2. On Saturday, March 26, 1994, at 2:09 a.m., in the Borough of Wormleysburg, Cumberland County, Pennsylvania, Petitioner was driving a Toyota automobile in a northerly direction on Routes 11 and 15, also known as Front Street. 3. At the aforesaid time and place, Petitioner was driving erratically - weaving to the extent that she crossed the white "fog" line along the berm more than once. ~ Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S. §1547 (1994 Supp.). 94-2482 CIVIL TERM 4. Wormleysburg Police Officer Jeffrey O'Donnell, who was on duty from 12:00 a.m. to 8:00 a.m. that morning, followed Petitioner in a police car for about a half mile, observing the erratic driving. 5. At 1000 North Front Street, the officer effected a vehicle stop. 6. Petitioner displayed various indicia of being under the influence, including bloodshot eyes, slurred speech, odor of an alcoholic beverage, slowness of movement, difficulty in retrieving her operator's license, and unsteadiness on her feet. 7. When asked to submit to field sobriety tests, Petitioner asked if she was required to do so. The officer responded that she was not. 8. In the officer's judgment, Petitioner was under the influence to a degree rendering her incapable of safe driving. 9. Officer O'Donnell placed Petitioner under arrest for driving under the influence. 10. Petitioner was placed in the officer's police car for transportation to Harrisburg Hospital for purposes of a chemical test to determine the alcoholic content of her blood. In the car, at 2:21 a.m., the officer read her the following implied consent warning from Form DL-26 of the Department of Transportation (Chemical Testing Warnings and Report of Refusal To Submit to Chemical Testing As Authorized by Section 1547 of the Vehicle 2 94-2482 CIVIL TERM Code): 1. Please be advised that you are now under arrest for driving under the influence of alcohol or a controlled substance pursuant to section 3731 of the Vehicle Code. 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 driving privilege will be suspended for a period of one year. 4. 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 chemical testing under the implied consent law. Specifically, you do not have a right to 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 a chemical test. Your continued request to speak to a lawyer or anyone else after this explanation is given, or your silence when asked to submit to a chemical test, will be considered as a refusal of the chemical test subjecting you to the suspension of your driving privilege. 11. Petitioner responded that she did not understand the information given. 12. Petitioner's behavior was, at times, of an hysterical nature. Her father had recently suffered a heart attack, she was concerned about her professional career, she believed herself to be an alcoholic, she had been depressed and was on anti-depression medicine, and she had been drinking. 13. At the hospital, Petitioner was twice more read the 3 94-2482 CIVIL TERM above-quoted implied consent warning and each time stated that she would not submit to a test. 14. On one occasion, Petitioner said that she wanted to have an attorney. However, the officer reiterated item 4 of the implied consent warning, to the effect that the right to an attorney did not apply to chemical testing under the implied consent law. 15. At one point in the hospital, Petitioner fell in a restroom; after initially refusing medical attention, she agreed to be seen by a doctor and was apparently found not to have been injured in the fall. 16. No medical testimony was presented by Petitioner on the subject of her capacity to make a knowing and conscious refusal to take the test for purposes of the implied consent law. 17. Any diminution in Petitioner's capacity to make a knowing and conscious refusal to take the test was due in large part to her voluntary consumption of alcohol. 18. Petitioner has not shown that she was incapable of making a knowing and conscious refusal to take the test for purposes of the implied consent law. DISCUSSION Statement of law. The law respecting license suspensions in the present context has recently been summarized by the Honorable Harold E. Sheely as follows: To sustain a license suspension under Section 1547(b)(1) [of the Vehicle Code, Act 4 94-2482 CIVIL TERM of June 17, P.L. 162, Sl, as amended, 75 Pa. C.S. §1547(b)(1) (1994 Supp.)], the Commonwealth must prove that the licensee (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. Bell v. Commonwealth, Department of Transportation, 147 Pa. Commw. 157, 162, 607 A.2d 304, 307 (1992). Once the Commonwealth has met this burden and established a prima facie case, the burden shifts to the licensee to prove that he or she was not capable of making a knowing and conscious refusal to take the test. Id. Commonwealth of Pennsylvania, Department of Transportation v. Blymier, No. 4052 Civil 1993, slip. op. at 3-4 (Cumberland Co. September 29, 1994). "A licensee might ... be incapable of making a knowing and conscious refusal where he or she was proved to have some intellectual deficiency, or where he or she was unable to understand English." Bell v. Commonwealth of Pennsylvania, Dept. of Transp., 147 Pa. Commw. 157, 164, 607 A.2d 304, 308, appeal denied, 533 Pa. 613, 618 A.2d 403 (1992) (citations omitted). Physical injuries might also render a person incapable of making a knowing and conscious refusal. See Pollock v. Commonwealth of Pennsylvania, Dept. of Transp., 160 Pa. Commw. 383, 634 A.2d 852 (1993). Under certain circumstances, a licensee's use of medication may support a finding of incapacity. Compare Commonwealth of Pennsylvania, Dept. of Transp. v. Zeltins, 150 Pa. Commw. 44, 614 A.2d 349 (1992), with Commonwealth of Pennsylvania, 5 94-2482 CIVIL TERM Dept. of Transp. v. Moss, 146 Pa. Commw. 330, 605 A.2d 1279, appeal denied, 532 Pa. 648, 614 A.2d 1144 (1992). Where incapacity is not self-evident from a licensee's circumstances, however, expert testimony may be required to establish incapacity. See, e.g., Pollock v. Commonwealth of Pennsylvania, Dept. of Transp., 160 Pa. Commw. 383, 634 A.2d 852 (1993); Commonwealth of Pennsylvania, Dept. of Transp. v. Blymier, No. 4052 Civil 1993 (Cumberland Co. September 29, 1994). In addition, it is well settled that "'[i]f a licensee's self- inflicted condition due to his voluntary consumption of alcohol is a factor which contributes to rendering him mentally incapable of making a knowing and conscious refusal to submit to chemical testing, the defense [of incapacity] must fail.'" Commonwealth of Pennsylvania, Dept. of Transp. v. Monsay, 142 Pa. Commw. 163, 167, 596 A.2d 1269, 1271 (1991), quoting Appeal of Cravener, 135 Pa. Commw. 480, 484, 580 A.2d 1196, 1198-99 (1990). Thus, defenses premised upon the combined effect of voluntarily-consumed alcohol and medication have been unsuccessful. See, e.g., Commonwealth of Pennsylvania, Dept. of Transp. v. Andrews, 95 Pa. Commw. 338, 505 A.2d 412 (1986). Application of law to facts. The present license suspension appeal is premised upon the argument that Petitioner, as a result of a mixture of alcohol and medication, was incapable of making a knowing and conscious refusal to take the chemical test requested 94-2482 CIVIL TERM by Officer O'Donnell. The Commonwealth having proven that she was arrested for driving under the influence of alcohol, that she was asked to submit to a chemical test, that she refused to do so, and that she was warned that a refusal would result in a license suspension, the burden rested upon Petitioner to prove her incapacity. No expert testimony was presented to support the proposition that a combination of anti-depression medication and alcohol caused a diminution of Petitioner's mental capacity. To the extent that any such diminution could be found, Petitioner's voluntary consumption of alcohol was a necessary factor in its existence. Based upon the foregoing Findings of Fact and principles of law, the Court, while highly sympathetic to the Petitioner in her efforts to overcome depression, does not find that she has met her burden of proof on the issue of incapacity. ORDER OF COURT AND NOW, this %~day of October, 1994, upon consideration of Petitioner's Petition for License Suspension Appeal and following a hearing, the petition is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 94-2482 CIVIL TERM Matthew X. Haeckler, Esq. Assistant Counsel Traffic Safety Section Department of Transportation 103 Transportation and Safety Bldg. Harrisburg, PA 17120 Attorney for the Commonwealth William T.C. Tully, Esq. John B. Mancke, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorneys for the Petitioner :re