Opinion
No. 961 C.D. 2012
01-22-2013
Corey Delprete, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Corey Delprete (Licensee) appeals from the April 13, 2012 order of the Court of Common Pleas of Montgomery County (trial court) denying his statutory appeal from a one-year suspension of his driving privileges imposed by the Department of Transportation (DOT) pursuant to section 1547(b)(1) of the Vehicle Code. We affirm.
Section 1547(b)(1)(i) provides that any person placed under arrest for driving while under the influence is requested to submit to a chemical test and if he refuses to do so, the department shall suspend the person's operating privilege for one year. 75 Pa. C.S. §1547(b)(1)(i).
On July 9, 2011, Trooper Joseph Miller of the Pennsylvania State Police was conducting a driving under the influence (DUI) checkpoint at the intersection of Gerryville Pike and Route 663 in Montgomery County. When Licensee's vehicle was stopped at the checkpoint, Trooper Miller detected a strong odor of alcohol emanating from Licensee's breath and Licensee admitted that he had been drinking alcohol at a bar. Licensee failed field sobriety tests and Trooper Miller arrested him. Trooper Miller then transported Licensee to the DUI Center for Montgomery County Sherriff's Department for a breath test where Deputy Sherriff Patrick Morgera assumed custody of Licensee and requested Licensee to submit to chemical testing. (Reproduced Record (R.R.) 5-9a, 19-20a, 24a.) After receiving notice that Licensee refused to submit to chemical testing, DOT mailed notice to Licensee that his driving privileges were being suspended for one year, effective November 25, 2011, pursuant to section 1547(b)(1)(i) of the Vehicle Code. Licensee filed a timely appeal, and, on April 2, 2012, the trial court held a de novo hearing.
At the hearing, Deputy Morgera testified that when Licensee arrived at the DUI center, he informed Licensee that the breath test was going to be videotaped and audibly recorded. According to Deputy Morgera's testimony and the videotape, Deputy Morgera first told Licensee that he was under arrest and explained the reasons for the arrest and how the breathalyzer operates. Licensee stated that he understood the directions concerning the breathalyzer. Deputy Morgera next read Licensee the DL-26 Form and when Deputy Morgera was finished, he asked Licensee if he wanted to submit to a breathalyzer test, to which Licensee responded "yes." Deputy Morgera handed Licensee the DL-26 Form and asked him to sign it. Licensee began reading the DL-26 form, which consists of four numbered paragraphs and contains a total of eight sentences. Deputy Morgera asked Licensee if there was anything that he could clarify; Licensee asked if he was under arrest, and Deputy Morgera again notified Licensee that he was under arrest. (R.R. 19-20a, 38-40a; DOT's Exhibit C-1.)
Form DL-26 contains the chemical testing warnings required by section 1547 of the Vehicle Code, 75 Pa. C.S. §1547, pursuant to our Supreme Court's decision in Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). These warnings inform a motorist that he or she is under arrest; that he or she is being requested to submit to a chemical test; that he or she will lose his or her operating privileges and potentially face stricter criminal penalties if the request is refused; and that there is no right to remain silent or speak to an attorney.
Licensee continued reading the DL-26 Form. Deputy Morgera again asked Licensee if there was anything he could clarify. Licensee said "no" and that he wanted to read the DL-26 Form himself. Deputy Morgera informed Licensee that he would have to hurry up because the breathalyzer allows a test to be performed for only three minutes after it starts "beeping" and then it shuts down and resets itself. Licensee stated that he thought the DL-26 Form was a contract containing valuable rights and asked to be placed into a jail cell so he could read it. Deputy Morgera told Licensee that the DL-26 form was not a contract and then the breathalyzer started "beeping." Deputy Morgera's partner informed Licensee that he was "stalling," and Licensee said he would take the test but first wanted to read the DL-26 Form to "understand [it] completely." (R.R. at 24a, 40-44a.)
One minute later, Deputy Morgera told Licensee that he had enough time to read the DL-26 Form and warned Licensee that he was not going to let him stall any further. In response, Licensee stated that he had a "disability" and that it was difficult for him to comprehend the DL-26 Form. At this point, Deputy Morgera told Licensee that his conduct evidenced a refusal to take the test. The videotape confirmed that approximately six minutes elapsed from the time that Deputy Morgera first read Licensee the DL-26 Form to the time he deemed Licensee's conduct a refusal. Deputy Morgera testified that based on his experience as a police officer, he believed that Licensee was delaying the test in an attempt to lower his blood alcohol level. (R.R. 24a, 40-44a.)
On cross-examination, Deputy Morgera admitted that during the encounter, he gave Licensee a pen and took it away from him on two occasions. Deputy Morgera stated that he did this for his own safety because a pen can be used as a weapon. Deputy Morgera testified that he told Licensee that he would give him the pen back if Licensee stated that he wanted to sign the DL-26 Form. (R.R. at 45a-46a.)
In rebuttal, Licensee testified that he was diagnosed with a learning disability and attention deficit hyperactivity disorder (ADHD). Licensee acknowledged that he took "a lot of time reading" the DL-26 Form but stated that he was confused, distracted, felt hurried and did not understand what was on the form. Licensee also presented James K. Margolis, M.D., a clinical neuropsychologist, as a witness. Dr. Margolis testified that Licensee's learning disability and ADHD severely limit his ability to read and comprehend written information. (R.R. at 48-56a, 61-81a.)
By order dated April 13, 2012, the trial court denied Licensee's appeal. The trial court found that Deputy Morgera provided Licensee with a reasonable amount of time to take the breathalyzer test and that Licensee's conduct in stalling constituted a refusal to take the test. (Trial court op. at 2.) The trial court also found that the testimony of Licensee and Dr. Margolis was unpersuasive and not credible. Id.
On appeal to this Court, Licensee argues that the trial court erred in concluding that he refused to submit to the breathalyzer. Licensee notes that he expressly agreed to take the breathalyzer test and cites McDonald v. Department of Transportation, Bureau of Driver Licensing, 708 A.2d 154 (Pa. Cmwlth. 1998), for the proposition that when an individual is confused about his rights and responsibilities under the DL-26 Form, his questions concerning those rights and responsibilities do not constitute a refusal. Relying on Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996), Licensee also argues that he did not refuse the test because Deputy Morgera took the pen away from him twice and, more importantly, a refusal to sign a consent form does not constitute a refusal to submit to testing. Finally, Licensee asserts that Dr. Margolis's testimony established that Licensee suffered from medical conditions that rendered him confused and incapable of refusing the test knowingly in the few minutes that he had to review the DL-26 Form.
Our scope of review is limited to determining whether the findings of fact are supported by competent evidence or whether the trial court committed an error of law or an abuse of discretion in reaching its decision. Piasecki v. Department of Transportation, Bureau of Driver Licensing, 6 A.3d 1067, 1070 (Pa. Cmwlth. 2010).
In order to sustain a suspension of operating privileges under section 1547 of the Vehicle Code, DOT must establish that: (1) the licensee was arrested for drunken driving by a police officer who had reasonable grounds to believe that the motorist was operating a motor vehicle while under the influence of alcohol; (2) the licensee was requested to submit to a chemical test; (3) the licensee refused to submit; and (4) the licensee was warned that refusal would result in a license suspension. Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa. Cmwlth. 2006). Whether a motorist refused to submit to a breathalyzer test is a question that depends on the factual determinations of the trial court. Department of Transportation, Bureau of Traffic Safety v. Mumma, 468 A.2d 891, 892 (Pa. Cmwlth. 1983). As finder of fact, it is the trial court's responsibility to resolve conflicts in the evidence, and the trial court is the sole arbiter of questions concerning the weight and credibility of the evidence. Reinhart v. Department of Transportation, Bureau of Driver Licensing, 954 A.2d 761, 765-66 (Pa. Cmwlth. 2008); Schlata v. Department of Transportation, Bureau of Driver Licensing, 744 A.2d 814, 816-17 (Pa. Cmwlth. 2000).
In McDonald, upon which Licensee relies, the police officer handed the licensee the DL-26 Form and recited it aloud while the licensee read it. At the de novo hearing, the licensee testified that after reading the DL-26 Form, she was confused and asked the officer some questions concerning the distinction between civil and criminal proceedings and her right to an attorney. While signing the consent form, the licensee continued to ask the officer questions and the officer took the form away from her. The licensee grabbed the form back from the officer to finish signing it, and the officer again took it away from her. The licensee was able to sign the first two letters of her first name on the form before the officer gained sole possession of it.
The officer testified that he believed that the licensee was just "playing" with him and that he took the form away after ten to fifteen minutes of answering her questions. The officer deemed the licensee's behavior to be a refusal.
The trial court resolved all conflicts in the evidence against the officer and specifically found the testimony of the licensee credible. The trial court found that the licensee was confused by the language on the form; that she agreed to take the blood test by attempting to sign the form; and that she was willing to provide a blood sample. On appeal, this Court affirmed the trial court's determination, concluding that the licensee's testimony, as found credible by the trial court, proved that she did not refuse the test.
In McCloskey v. Department of Transportation, Bureau of Driver Licensing, 722 A.2d 1159 (Pa. Cmwlth. 1999), this Court limited the holding in McDonald to those cases where the trial court believes the licensee's testimony that he or she was confused. In McCloskey, the police officer orally recited the DL-26 Form to the licensee on two occasions and the licensee read the form himself. The licensee asked the officer some questions and requested more time to make a decision. During the encounter, the licensee never agreed to take the test. After approximately eight minutes had elapsed, the officer recorded the licensee's actions as a refusal.
The trial court in McCloskey determined that the licensee's conduct established that he refused to submit to chemical testing. Although the licensee testified that he was confused regarding the warnings contained in the DL-26 Form, resulting in his asking questions to the officer, the trial court did not believe that the licensee was confused. Instead, the trial court found the officer's testimony credible and determined that the licensee was stalling for time. On appeal, this Court affirmed the trial court. In doing so, we distinguished McDonald as follows:
Based on the findings of the trial court in the instant case, it presents a different picture than McDonald. Here, the trial court found in favor of [DOT] and against licensee. ... As we pointed out in McDonald, questions of credibility and conflicts of evidence in license suspension cases are for the trial court to resolve. Therefore, the fact that fifteen minutes elapsed in McDonald before a refusal was recorded as opposed to eight minutes in the present case is of no moment. The trial court found herein that licensee's conduct belied his claim that he was confused. The trial
court clearly found that licensee was not confused but rather was stalling for time. Pursuant to [case law], we cannot disturb such a finding of the trial court on appeal when it is based on credibility.Id. at 1163 (citations and footnote omitted).
We conclude that Licensee's reliance on McDonald is misplaced, and, instead, this case is controlled by McCloskey. Licensee admitted that he had "a lot of time" to read the DL-26 form. Deputy Morgera warned Licensee that he had enough time to read the form and that Licensee would not be permitted to stall any longer, yet Licensee did not take the breathalyzer test, asserting that he was having difficulty reading the form. Akin to the situation in McCloskey, the trial court in this case expressly found that Licensee stalled and that his conduct constituted a refusal. The trial court also found that the testimony of Licensee and Dr. Margolis was not credible and rejected any notion that Licensee was confused. Although unlike the licensee in McCloskey, Licensee verbally agreed to submit to the breathalyzer, Licensee's conduct in refusing to take the breathalyzer constituted a refusal in its own right and negated his purported oral consent. See Department of Transportation, Bureau of Traffic Safety v. Krishak, 496 A.2d 1356, 1360 (Pa. Cmwlth. 1985) (concluding that the licensee's conduct after verbally consenting to take a chemical test constituted a refusal and operated as a withdrawal of his previous consent). Given the trial court's credibility and weight determinations, we conclude that the trial court properly determined that Licensee's questions to Deputy Morgera and insistence on reading the DL-26 Form was a delay tactic constituting a refusal.
In this case, approximately six minutes elapsed from when Deputy Morgera first read Licensee the DL-26 Form to the time he deemed Licensee's conduct a refusal, while eight minutes elapsed in McCloskey. However, McCloskey teaches us that the number of passing minutes is irrelevant, so long as a licensee's conduct evidences a refusal. --------
Moreover, Licensee's citation to Renwick is misplaced. In that case, the licensee was at a hospital and ignored an officer's requests to sign a consent form. A second officer arrived at the hospital, asked the licensee if she would consent to a blood test, and the licensee did not respond. The second officer then informed the licensee that her silence would be considered a refusal to submit to the test and the licensee stated that she would take the test. The second officer handed the licensee a clipboard and requested that the licensee read and sign the consent form. The licensee stated that she could not lift her arm to sign the form, and the officer told the licensee that her refusal to sign the form constituted a refusal to take the test.
On appeal, our Supreme Court held that the licensee's refusal to sign the consent form, in and of itself, did not establish that the licensee refused to take the test. The court reasoned that section 1547 of the Vehicle Code implies a licensee's consent to take a chemical test and, therefore, the signing of a consent form is irrelevant. Nonetheless, the court concluded that although the licensee did not sign the consent form, her overall conduct in ignoring the officers' requests and questions demonstrated that she refused the test.
In this case, there is nothing in the record to suggest that Deputy Morgera, or the trial court for that matter, considered the fact that Licensee did not sign the DL-26 Form as evidence that Licensee refused to take the breathalyzer. As explained above, Licensee's conduct in stalling to take the breathalyzer constituted a refusal in its own right, irrespective of the fact that Licensee did not sign the DL-26 Form. Therefore, Licensee's reliance on Renwick is misplaced.
Finally, we reject Licensee's argument that Dr. Margolis's testimony established that Licensee was confused because he had a learning disability and ADHD and, consequently, did not refuse the test knowingly. Here, the trial court found that Dr. Margolis's testimony was not credible, reasoning as follows:
[Licensee] alleges that he suffers from a learning disability similar to [ADHD] and that his failure to submit to a breathalyzer test in a timely manner should not have been considered a refusal.(Trial court op. at 4.)
[Licensee] successfully completed all phases of his driver's license examination and obtained a driver's license. He is also an industrial engineer and drives 15 miles each way to work and back. Simply stated, this Court does not find the testimony of [Licensee] or [his] expert credible or persuasive. This Court finds that [Licensee's] behavior constituted a refusal.
Having had the opportunity to observe the demeanor of all of the witnesses, the trial court acted within its discretion in finding that the testimony of Licensee and his expert was not credible. It is well-settled that questions of credibility are for the trial court to resolve and that a trial court's credibility determination is binding on appeal. McCloskey, 722 A.2d 1163. See Schlata v. Department of Transportation, Bureau of Driver Licensing, 744 A.2d 814, 817 (Pa. Cmwlth. 2000) ("Questions of credibility are for the trial court to resolve, not an appellate court."). Consequently, Licensee's argument does not merit relief.
For the above-stated reasons, we affirm the trial court's order.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 22nd day of January, 2013, the April 13, 2012 order of the Court of Common Pleas of Montgomery County is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge