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HomeMy WebLinkAbout93-1419 CivilCOMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION CUMBERLAND COUNTY, PENNSYLVANIA BUREAU OF DRIVER LICENSING, Appellee CIVIL ACTION - LAW MICHAEL L. BARRICK, Appellant NO. 1419 CIVIL 1993 IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE OLER, J. ORDER OF COURT AND NOW, this 2 Sr J day of June, 1993, upon consideration of Appellant's Petition for Appeal from License Suspension, and following a hearing, the appeal is DENIED. BY THE COURT, eWesle�y�Oler, J• Matthew X. Haeckler, Esq. Assistant Counsel Department of Transportation Bureau of Driver Licensing Attorney for Appellee Gregory B. Abeln, Esq. Attorney for Appellant : rc COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION CUMBERLAND COUNTY, PENNSYLVANIA BUREAU OF DRIVER LICENSING, Appellee CIVIL ACTION - LAW V. MICHAEL L. BARRICK,NO. 1419 CIVIL 1993 Appellant IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. This case is an appeal by Michael L. Barrick from a suspension of his operating privilege by the Pennsylvania Department of Transportation for refusal to submit to a chemical test to determine the alcoholic content of his blood under Pennsylvania's implied consent law.l A hearing was held on the appeal on June 9, 1993. Based upon the evidence submitted at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered. FINDINGS OF FACT 1. The Appellant is Michael L. Barrick, a resident of Boiling Springs, Cumberland County, Pennsylvania. 2. On March 21, 1993, Police Officer Troy L. Wiser of the Newville Borough Police Department arrested the Appellant for driving under the influence and transported him to the Mid -Cumberland Valley Police Station in Shippensburg, Pennsylvania, for administration of a chemical test to determine the alcoholic content ' Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1547 (1992 Supp.)- No. 1419 Civil 1993 of his blood. 3. The Officer had probable cause for the Appellant's arrest and reasonable grounds to believe that he had been driving under the influence, by virtue of several events and conditions, including the following: a traffic light violation, erratic driving, slurred speech, bloodshot eyes, swaying, a strong odor of alcoholic beverage on the breath, and an admission of intoxication. 4. At the station, the Officer advised Appellant of his Miranda rights, obtaining a signed acknowledgment of the same. The form signed by Appellant indicated that the right to an attorney did not apply to the chemical testing process. 5. The Officer requested that Appellant submit to a chemical test of his breath for the purpose of determining the alcoholic content of his blood, by means of an Intoxilizer 5000, and read to him from the following implied consent warning: Section 1547 of the "Vehicle Code," in part reads as follows. 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 a police officer has reasonable grounds to believe the person ont of of the driving, operating or in actual physical movement of a motor vehicle:" 6. Appellant purported to submit to the breath test, but did not expel enough air to cause an indication that the registration process in the machine was activated. 7. Appellant was told that his effort was not satisfactory, at which point he 2 No. 1419 Civil 1993 asked to consult an attorney. He was read a more elaborate warning, which again indicated that he did not have a right to an attorney with respect to the chemical test: You have been arrested for driving under the influence of alcohol or a controlled substance. You have been brought here so that tests of your breath may be administered to you. Under Pennsylvania law, you have impliedly consented to subject to such tests by driving, operating or being in physical control of the movement of a motor vehicle. If you refuse to submit to the breath tests, your operating privileges will be suspended automatically by the Department of Transportation for a period of one (1) year. This is the breath test instrument. In order to submit to the test, you are required to blow into the mouthpiece until you are told to stop. This will take anywhere from five (5) to ten (10) seconds. The test is composed of two (2) breath samples. If it is determined that you are deliberately failing to supply sufficient breath or otherwise failing to follow instructions for either sample, your conduct will be considered as a refusal and your operating privileges will be suspended by the Department of Transportation. You, the defendant, in this case, do not have a right to an attorney with regards to taking this breath test. 8. The Officer then afforded Appellant a second opportunity to submit to a chemical test of his breath, and Appellant again consented to submit to the breath test. 9. Notwithstanding that he was told to blow into the machine until instructed to stop, Appellant did not blow steadily and stopped before being told to do so, as a result of which no conclusive reading was obtained. 10. The Officer afforded Appellant a third opportunity to submit to a chemical test of his breath, preceding the test by reading from the following warning: 3 No. 1419 Civil 1993 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. I am requesting that you submit to a chemical test of breath. It is my duty, as a police officer, to inform you that if you refuse to submit to the chemical of one year.driving privilege will be suspended for a period 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 unote h Specifically, you do the 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 be considered as a refusal of the to a chemical test, will chemical test subjecting you to the suspension of your driving privilege. 11. Again, Appellant consented to submit to the breath test, but, contrary to instructions, he stopped blowing before being told to do so, as a result of which no conclusive reading was obtained. 12. The Officer recorded Appellant's conduct as a test refusal. 13. At no time did Appellant tell the Officer that he had any physical infirmity which would have caused him difficulty with the test. At the hearing on his appeal, he testified that he smoked three packs of cigarettes a day, took no medication, and believed that his lung capacity was reduced from smoking. 4 No. 1419 Civil 1993 14. During his career as a police officer, Officer Wiser has made requests of about 70 people to submit to breath tests with the Intoxilizer 5000, and has recorded only two refusals: one being that of an individual who expressly refused, and the other being that of Appellant• not be said to have made a good effort to complete the breath 15. Appellant can tests nor did he prove that his failure to complete the test was the result of a physical infirmity -2 16. Appellant's conduct, which led to the Officer's recording of a test refusal, persisted beyond any point where it can be said that he was confused as to his right to an attorney. 17. In addition, in light of Appellant's purported attempts to submit to the test it can not be said that he refused to take the test as a result of confusion as to his right to an attorney. 18. By notice dated April 9, 1993, the Department of Transportation advised Appellant that his operating privilege was being suspended for one year as a result of 2 The Court sustained an objection to admission of Petitioner's [Appellant's] Exhibit 1, which was a document said to be from a doctor's office and said to show the result of an examination of Appellant a number of weeks after the incident. No custodian or other qualified person testified as to its identity and mode of preparation, inter alia. See Packel & Poulin, Pennsylvania Evidence §803.6 (1987). Although it contained the notation "Final impression: moderate obstructive airways disease," no medical or other testimony from a person qualified in the area was presented and the document was illegible in portions. Its admission would not have caused the Court to reach a different conclusion in this case. The item has been included with the record for purposes of any appellate review. 5 No. 1419 Civil 1993 the test refusal. f his operating privilege, Appellant has appealed. 19. From the suspension o DISCUSSION Statement of law. Several principles of law are applicable to the present case. These relate to the requisite content of implied consent warnings, and to the type of conduct which will be treated as a refusal to submit to a breath test. On the subject of the implied consent warnings, the law may be summarized as follows: "In [Commonwealth, Department of Transportation, Bureau of Traffic Safety v.] O'Connell[, 521 Pa. 242, 555 A.2d 873 (1989)], [the Pennsylvania Supreme] Court held that where a police request for chemical testing [under Pennsylvania's implied consent law] is preceded by Miranda warnings, the police have an affirmative duty to not only inform the arrestee that his driving privileges will be suspended for one year if he refuses chemical testing, but also that the arrestee does not have the right to consult with an attorney or anyone else prior to deciding whether to perform chemical testing." Commonwealth v. Danforth, 530 Pa. 327, 331-32, 608 A.2d 1044, 1046 (1992). This duty is "not contingent upon the arrestee exhibiting confusion concerning his right to speak with an attorney, or actually requesting to speak with an attorney." Id. p at 332, 608 A.2d at 1046 (emphasis omitted). The "per sei3 rule thus established is based upon the following premise: 3 See Commonwealth v. Danforth, 530 Pa. 327, 3349 608 A.2d 1044, 1047 (1992) (Papadakos, J., dissenting, joined by Nix, C.J., and McDermott, J.). 6 No. 1419 Civil 1993 There is overwhelming unfairness inherent in the situation where an arrestee is initially told that he has a right to consult with an attorney, and then in conjunction with a request for chemical testing is told that a refusal will result in suspension of driving privileges without being informed that his right to counsel is inapplicable. Under these circumstances, the defendant cannot possibly make a knowing and conscious refusal, as he may reasonably believe that he is entitled to counsel prior to submitting to chemical testing and refuse on this basis without exhibiting confusion or specifically requesting counsel. Id. at 332-33, 608 A.2d at 1046. Where a refusal to consent to chemical testing is not knowing and conscious, it will not support a suspension of one's operating privilege. Id. In a case where "Miranda warnings [have] preceded the request for chemical testing and the implied consent warning [,] .•• we have per se confusion which can be cured only by an adequate O'Connell explanation or by an admission by Licensee that Commonwealth, Department of his confusion was not over Miranda rights." Transportation, Bureau of Driver Licensing v. Sorg, 147 Pa. Commw. 82, 92, 606 A.2d 1270, 1275, allocatur denied, 531 Pa. 657, 613 A.2d 561 (1992). With respect to a cure in the form of an adequate O'Connell explanation, such an explanation has been said to require the imparting of the following information: 1. That an individual's constitutional rights when accused of a crime do not apply to the chemical testing procedure under Pennsylvania's Vehicle Code. 2. Specifically, that the licensee has no right test, consult to with counsel or anyone else before taking 3. That the Miranda protections are not applicable because 7 No. 1419 Civil 1993 civil procedure, not a criminal chemical testing is a protections only apply in • proceeding, and the Miranda oceedings, but the licensee's refusalin a subseq ent anal Pr be introduced in evidence the testing pronceeding• Id. at 90, 606 A.2d at 1274. A truly meaningful warning requires ... an explanation [to the request to submit to chemical as to why [the Miranda] rights do not apply ns the purpose of O'Connell ...." Id. at 87, testing]. To require anything less contrave 606 A.2d at 1273.e that his or her admission by a license With respect to a cure in the form of an be implicit confusion was not "in a over Miranda rights, such a concession may his o� evidence, indicates that his confusion was no situation where the licensee, by wealth, Department of Transportation,147 over Miranda rights" Kitcheno f f v. Common Pa. _, 614 A.2d 1144 552 556, 608 A.2d 645, 647, allocatur denied, — licensee's (1992), -- that the display Pa. CommP`N' court properly upheld a Thus, it has been held that a trial on la sus ension in a case where the licensee "had Only complaint Y believed that the appearance 'cal testing equipment concerned him in that he be , udiced by an the chemto be prey of the numbers on the display Presented the potential for him , arming could have alleviated his concerns." Id • a inaccurate reading. No O'Connell w 556, 608 A.2d at 648. e conduct which will constitute a refusal to submit to a On the subject of th has stated as follows: breath test, the Honorable Harold E. Sheely of this Court No. 1419 Civil 1993 In commonwealth of Pennsylvania, Department of Transportation, Bureau of v. Potter, 118 Pa. Commonwealth Ct. 524, 545 A.2d 979 (1988), the Traffic S a f et y lvania Commonwealth Court held that: `When a licensee fails to supply a Pennsy t breath sample, such conduct is tantamount to a refusal, thus warranting the sufficien on of the operating privilege.' Id., 118 Pa. Commonwealth Ct. at 525, 545 suspense A.2d at 980. "Additionally, a good faith attempt to produce a breath sample has not been 'dered a valid defense in Pennsylvania. Commonwealth of Pennsylvania, const 98 Pa. Department of Transportation, Bureau of Driver Licensing v. Siegert, onwealth Ct. 337, 511 A.2d 268 (1986). The Commonwealth Court held in Comm ert that Commonwealth case law places the burden of proving physical inability Sie g to perform the test upon the driver, but this burden may not be met by self serving 1 Sie ert, 98 Pa. testimony that the driver made a `good faith effort' to comp y• g Commonwealth Ct. at 341, 511 A.2d at 270:' Commonwealth of Pennsylvania, Department of Transportation v. Milisavic, 42 Cumberland L.J. 176, 178 (1992). "For the purpose of [the implied consent law], a refusal is anything substantially short of an unqualified, unequivocal assent to a police officer's request to submit to chemical testing.... [The Commonwealth] Court has interpreted [this law] to require that the licensee not only submit to or take the test, but also that he complete it. Department of Transportation, Bureau of Traffic Safety v. Jones, 38 Pa. Commonwealth D No. 1419 Civil 1993 00 395 A.2d 592 (1978) (motorist's failure to provide sufficient air to permit test Ct.4 , de is tantamount to refusal, even where motorist expressed consent to test)." to be ma Murray v. Commonwealth, 143 Pa. Commw• 358, 362, 598 A.2d 1356, 1358 (1991). In this regard, "[tlhe frustration of purpose doctrine provides that a refusal under [the implied consent law] can be implied from the conduct of the licensee which obstructs or frustrates the administration of the chemical test." McCamey v Commonwealth) 144 Pa. Commw. 292, 294 n.2, 601 A.2d 471, 4?2 n.2 (1991), allocatur C denied, _ Pa. _, 614 A.2d 1144 (1992). A lication of law to facts. In the present case, (a) the implied consent arnin s taken as a whole were not inadequate, (b) any initial confusion as to the w g ht to counsel in connection with the chemical test was extinguished by the rig warnings, (c) in light of Appellant's consent to take the test it can not be said that he refused to consent due to confusion over his right to an attorney, and (d) his failure erate in completing the test was effectively a refusal. For these reasons, the to coo P following Order will be entered: 10 No. 1419 Civil 1993 ORDER OF COURT onsideration of Appellant's AND NOW, this -23/d day of June, lggg, upon c rom License Suspension, and following a hearing, the appeal is Petition for Appel f DENIED. Matthew X. Haeckler, Esq. Assistant Counsel Transportation Department of Bureau of Driver Licensing Attorney for Appellee Gregory B. Abeln, Esq. Attorney for Appellant :rc BY THE COURT, J. Wesley �Oler,Jr. u— J. 11