Opinion
No. 270 C.D. 2013 No. 271 C.D. 2013
10-15-2013
James Grassmeyer, Jr., Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
James Grassmeyer, Jr. (Licensee) appeals from the January 28, 2013, order of the Court of Common Pleas of Lycoming County (trial court), which dismissed Licensee's appeal from the operating privilege suspension and disqualification of his commercial driving privilege imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT). We affirm.
On July 18, 2012, DOT suspended Licensee's operating privilege for 18 months for refusing to submit to chemical testing on June 27, 2012, in violation of section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1). DOT also disqualified Licensee's commercial driving privilege for one year for the same refusal. Licensee appealed and the trial court held a de novo hearing on January 28, 2013.
At the hearing, DOT presented the testimony of Jeffrey Hughes, Jr., a police officer with the Old Lycoming Township Police Department. Officer Hughes testified that on June 27, 2012, he responded to a report of a hit-and-run accident. (Trial Ct. Op. at 2.) At the scene, Officer Hughes administered three field sobriety tests to Licensee and asked Licensee to submit to a breath test, but the breath test yielded inconclusive results due to insufficient breath. (Id.) Officer Hughes subsequently placed Licensee under arrest and transported him to the emergency room at Williamsport Hospital. (Id.)
Section 1547(k) of the Vehicle Code, 75 Pa. C.S. §1547(k), authorizes what is generally referred to as a preliminary breath test:
(k) Prearrest breath test authorized. - A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest.
Licensee stipulated that Officer Hughes had reasonable grounds to arrest him for suspicion of driving under the influence. (N.T. at 8.)
At the hospital, Officer Hughes read Licensee the DL-26 form and asked him to submit to a blood test. (Id.) Licensee asked Officer Hughes three times if he had already submitted to a test, and Officer Hughes replied "no." (Id.) Licensee asked Officer Hughes a fourth time if he had already submitted to a test; Officer Hughes replied "yes," but stated that Licensee had submitted to a breath test and was now being asked to submit to a blood test. (Id.) Licensee signed the DL-26 form. (Id.) Subsequently, Licensee twice refused to submit to a blood test. (Id. at 2-3.)
The DL-26 form states:
1. Please be advised that you are under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code.(DOT DL-26 Form, 8/2006.)
2. I am requesting that you submit to a chemical test of ___ (blood, breath or urine. Officer chooses the chemical test).
3. It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence. In addition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code, the same as if you would be convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000.
4. It is also my duty as a police officer to inform you that you have no right to speak with an attorney or anyone else before deciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or remaining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code.
Based on this evidence, the trial court determined that Licensee refused to consent to a blood test and dismissed Licensee's appeal from the suspension of his operating privilege and the disqualification of his commercial driving privilege. Licensee now appeals to this court.
This court consolidated the appeals on June 3, 2013.
Licensee argues that his refusal to consent to the blood test was not a knowing and conscious decision and that he was confused by Officer Hughes' acknowledgement that he had submitted to a breath test. We disagree.
Our scope of review is limited to determining whether the trial court's decision is supported by substantial evidence, whether there has been an error of law, or whether the decision indicates a manifest abuse of discretion. Stahr v. Department of Transportation, Bureau of Driver Licensing, 969 A.2d 37, 39 n.2 (Pa. Cmwlth. 2009).
Section 1547(b)(1) of the Vehicle Code mandates the suspension of the operating privilege of a person who refuses to submit to chemical testing, stating in pertinent part:
[i]f any person placed under arrest for a violation of section 3802 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 . . .75 Pa. C.S §1547(b)(1). If the licensee appeals the suspension:
DOT must establish that the licensee: (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under [the] influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension.Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999).
"Once [DOT] satisfies its initial burden of proof, the burden then shifts to the licensee to show that he was physically unable to take the test or that the refusal was not knowing or conscious." Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 18 (Pa. Cmwlth. 2010). "The determination of whether a licensee was able to make a knowing and conscious refusal is a factual one that is to be made by the trial court." Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336, 340 (Pa. Cmwlth. 2010); see also Ryan v. Department of Transportation, Bureau of Driver Licensing, 823 A.2d 1101, 1105 (Pa. Cmwlth. 2003) (finding that a licensee's refusal was knowing and conscious despite her confusion over a prior breath test).
In Ryan, an officer administered a prearrest breath test, but the results were inconclusive due to insufficient airflow. Ryan, 823 A.2d at 1102. The officer received permission from the licensee to administer a different model of breath test. Id. Based on the results of the second breath test, the officer placed the licensee under arrest for driving under the influence of alcohol. Id. After transporting the licensee to the hospital, the officer asked licensee to submit to a blood test and read her the implied consent law from the DL-26 form. Id. at 1102-03. The licensee signed the form but refused to submit to the blood test. Id. at 1103. The licensee testified, "I told him no because I was asking him why, like I took all the other tests and I didn't know if that was really required because I agreed to both breathalyzers and the field tests." Id. After DOT suspended licensee's operating privilege, the licensee appealed to the trial court, which sustained her appeal while finding that she was confused over her responsibility to submit to the blood test. Id. at 1102. However, this court reversed, holding that the licensee's confusion was not a defense under the circumstances. Id. at 1105.
The present case is analogous to Ryan. Licensee did not demonstrate that his refusal was not knowing or conscious given the totality of the circumstances. Officer Hughes read Licensee the DL-26 form expressly stating that Licensee was being asked to submit to a chemical test of blood, and Licensee signed the form. The exchanges between Officer Hughes and Licensee indicate a "'self-induced and self-destructive confusion about what the law is or should be'" rather than an inability of Licensee to formulate a knowing and conscious response to the request that he consent to a blood test. Ryan, 823 A.2d at 1105 (citation omitted).
We also note that voluntary intoxication is not a valid defense. See Ascolese v. Department of Transportation, 522 A.2d 1204, 1205 (Pa. Cmwlth. 1987) (en banc) ("[V]oluntary intoxication may not serve as a defense in a license suspension procedure based upon refusal to submit to statutorily prescribed testing for blood alcohol content."). --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 15th day of October, 2013, we hereby affirm the January 28, 2013, order of the Court of Common Pleas of Lycoming County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge