Opinion
No. 2308 C.D. 2012
05-24-2013
John Kennedy, Jr., Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, John Kennedy, Jr. (Licensee) asks whether the Court of Common Pleas of Bucks County (trial court) erred in denying his statutory appeal from a one-year suspension of his operating privilege pursuant to Section 1547(b)(1)(i) of the Vehicle Code, commonly known as the Implied Consent Law. The Department of Transportation, Bureau of Driver Licensing (PennDOT) suspended Licensee's operating privilege as a result of his refusal to submit to chemical testing. Licensee contends the trial court erred in denying his appeal where the police officer did not read the entire PennDOT DL-26 Form that sets forth the consequences for a refusal. Upon review, we affirm.
Section 1547(b)(1)(i) requires any person placed under arrest for driving under the influence (DUI) "to submit to chemical testing ... [and if that person] 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." 75 Pa. C.S. §1547(b)(1)(i).
PennDOT notified Licensee of the one-year suspension of his operating privilege as a result of his refusal to submit to chemical testing after his arrest for driving under the influence (DUI). Licensee appealed to the trial court.
The trial court held a hearing at which PennDOT presented the testimony of two witnesses, Officer Brian Walter and Corporal Richard Shaffer, both of the Lower Southampton Township Police Department. PennDOT also presented its packet of certified documents as well as a DVD recording from an on-board device located in Officer Walter's patrol car. Licensee did not testify or present any evidence.
The record reveals that on May 23, 2011, Officer Walter responded to a report of a white Jeep Cherokee driving erratically. When Officer Walter arrived on scene, the white Jeep Cherokee was parked with the engine running. Officer Walter observed Licensee enter the driver's side of the vehicle, which had a flat tire, and proceed to drive away. Officer Walter stopped the vehicle and made contact with Licensee, who "appeared highly intoxicated" and had "an odor of alcohol emanating from his person." Reproduced Record (R.R.) at 36a. When Officer Walter asked Licensee to exit the vehicle he "had a very unsteady gait" and he "stumbled while exiting the vehicle." R.R. at 37a. Officer Walter conducted three field sobriety tests, which Licensee failed. At that time, Officer Walter arrested Licensee for DUI and placed him in the back of the patrol car. Officer Walter advised Licensee of the "implied consent rule." R.R. at 39a. In response, Licensee was "very belligerent, aggressive, cursing, calling the police all sorts of names ...." R.R. at 39a-40a.
Licensee did not dispute that Officer Walter read Licensee paragraphs 1 and 2 on the DL-26 Form, which informed Licensee he was under arrest for DUI and was asked to submit to chemical blood testing. Officer Walter also advised Licensee that he did not have the right to speak to an attorney before deciding whether to submit to testing, as stated in paragraph 4 of the DL-26 Form.
The four paragraphs of the DL-26 Form utilized here state:
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.Appellant's Br., App. B, PennDOT Form DL-26 (August 2006).
2. I am requesting that you submit to a chemical test of BLOOD (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.
With regard to the penalties for refusing to submit to chemical testing contained in paragraph 3 of the DL-26 Form, Officer Walter first informed Licensee that his driver's license "could be" suspended for up to one year. R.R. at 41a. However, upon a second reading of the warnings, Officer Walter informed Licensee that if he refused to submit to chemical testing his operating privilege "will be suspended for six or more months." Certified Record (C.R.), Ex. C2, DVD: 5/23/11 at 56:38-56:45. Officer Walter also informed that if he refused, "he will face more severe penalties." Id. at 55:49-55:55. Officer Walter did not read paragraph 3 of the DL-26 Form verbatim. R.R. at 53 a.
While Officer Walter read Licensee the required warnings, Licensee interrupted him numerous times. In response to the warnings, Licensee repeatedly stated "No" and "F*** you." R.R. at 48a. Additionally, Licensee directly refused Officer Walter's request that Licensee submit to a chemical blood test.
Ultimately, the respected trial court denied Licensee's appeal and upheld the suspension. The trial court rejected Licensee's argument that the warnings were inadequate because Officer Walter did not completely recite all of the language that appears in paragraph 3 of the DL-26 Form. Licensee now appeals to this Court.
On appeal, Licensee contends the trial court erred in denying his appeal where both the DVD and Officer Walter's testimony reveal Officer Walter did not read paragraph 3 of the DL-26 Form verbatim to Licensee. Specifically, Officer Walter did not warn Licensee that a refusal would subject him to the penalties for DUI with the highest level of alcohol. Licensee maintains police officers must completely read the DL-26 Form to licensees for a refusal to be valid. See Reed v. Dep't of Transp., Bureau of Driver Licensing, 25 A.3d 1308 (Pa. Cmwlth. 2011). Licensee argues Reed controls here and requires reversal of the trial court's decision upholding the suspension. See also Commonwealth v. Xander, 14 A.3d 174 (Pa. Super. 2011); Yoon v. Dep't of Transp., Bureau of Driver Licensing, 718 A.2d 386, 387-88 (Pa. Cmwlth. 1998).
Our review is limited to determining whether the trial court committed error of law or abused its discretion and whether necessary findings of fact were supported by substantial evidence. Reinhart v. Dep't of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa. Cmwlth. 2008).
In order to sustain a one-year suspension of a licensee's operating privilege, PennDOT must establish the licensee: (1) was arrested by a police officer who had reasonable grounds to believe the licensee was operating a motor vehicle while 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 refusal would result in a license suspension. See Bomba v. Dep't of Transp., Bureau of Driver Licensing, 28 A.3d 946 (Pa. Cmwlth. 2011). It is undisputed that PennDOT satisfied the first three elements here.
The issue is whether Officer Walter provided an adequate warning as to the consequences of a refusal despite the fact that he did not completely recite the language in paragraph 3 of the DL-26 Form.
Section 1547(b) of the Implied Consent Law provides, in relevant part:
(b) Suspension for refusal.—
* * * *
(2) It shall be the duty of the police officer to inform the person that:
75 Pa. C.S. §1547(b)(2)(i), (ii).(i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties). ...
With regard to the requirement set forth in Section 1547(b)(2)(i), in Yourick v. Department of Transportation, Bureau of Driver Licensing, 965 A.2d 341, 345 (Pa. Cmwlth.) (en banc), appeal denied, 602 Pa. 680, 981 A.2d 220 (2009), a case involving the sufficiency of the warnings stated on the August 2006 version of the DL-26 Form, we explained (with emphasis added):
There is no requirement in Vehicle Code Section 1547(b)(2)(i) that the implied consent warning issued by an officer contain any specific wording. It must merely 'inform' a licensee that his/her 'operating privilege will be suspended upon refusal to submit to chemical testing.' 75 Pa. C.S. § 1547(b)(2)(i). The Pennsylvania Supreme Court affirmed this Court's holding that a warning is legally sufficient if it informs the licensee that refusing a request for chemical testing means that he/she 'will be in violation of the law and will be penalized for that violation.' Dep't of Transp., Bureau of Driver Licensing v. Weaver, 590 Pa. 188, 191, 912 A.2d 259, 261 (2006) [(Weaver
II)] citing Weaver v. Dep't of Transp., Bureau of Driver Licensing, 873 A.2d 1, 3 (Pa. Cmwlth. 2005) [(Weaver I)].FN6
FN6. We acknowledge that Weaver examined the sufficiency of an earlier version of the implied consent warning under Section 1547(b)(2)(ii), as opposed to Section 1547(b)(2)(i); however, the variation in subsections and versions does not change the ultimate conclusion that an implied consent warning in Pennsylvania must notify a licensee that he/she will be in violation of the law and will be penalized for that violation if he/she refuses to submit to chemical testing.
As alluded to in Yourick, with regard to Section 1547(b)(2)(ii), in Weaver I, this Court, in considering the adequacy of the warnings contained in the December 2003 version of the DL-26 Form, rejected a licensee's argument that a police officer was required to inform a licensee of all the possible penalties enumerated in Section 3804(c). Speaking through then-President Judge Colins, we stated (with emphasis added):
It is not the duty of the police to explain the various sanctions available under a given law to an arrestee to give that individual an opportunity to decide whether it is worth it to violate that law. It is sufficient for the police to inform a motorist that he or she will be in violation of the law and will be penalized for that violation if he or she should fail to accede to the officer's request for a chemical test.Weaver I, 873 A.2d at 2.
Affirming our decision in Weaver I, the Supreme Court rejected the argument that an arresting officer must enumerate each of the enhanced penalties set forth in Section 3804(c) of the Vehicle Code. Indeed, the Court explained the plain language of Section 1547(b)(2)(ii) "requires only that the officer inform the arrestee that if he is convicted for DUI, refusal will result in additional penalties; it does not require the officer to enumerate all of the possible penalties, as appellant claims." Weaver II, 590 Pa. at 196, 912 A.2d at 264.
In addition, this Court holds that a police officer's misstatement with regard to the length of a license suspension does not invalidate a warning. In Department of Transportation v. Olenick, 540 A.2d 993 (Pa. Cmwlth. 1988), where an officer erroneously informed a licensee that his license would only be suspended for six months, rather than the prescribed 12-month period, we held, "this error was harmless and does not negate the validity of a warning because an officer is not required to state the length of the suspension." Id. at 994-95 (citation omitted) (emphasis added); see also Podgurski v. Dep't of Transp., Bureau of Driver Licensing, 654 A.2d 232 (Pa. Cmwlth. 1995) (where officer paraphrased language on DL-26 Form, informing licensee her driver's license would be suspended if she refused testing, but did not state suspension would be for a year, warning was adequate).
More recently, in Garner v. Department of Transportation, Bureau of Driver Licensing, 879 A.2d 327, 330-31 (Pa. Cmwlth. 2005), a case in which the police officer read the December 2003 version of the DL-26 Form to the licensee, and handed him a copy of the DL-26 Form, we explained:
The warning delivered to [the licensee] fully complies with the statutory requirements. The statute simply does not require any specific explanation as to the length of the civil suspension and it does not require an explanation of each criminal penalty set forth in Section 3804(c). The statute requires only that police provide notice that refusal will result in license suspension and, that if the licensee is convicted of
driving under the influence, refusal will result in additional penalties. [The licensee] received this information.
We believe common pleas erred in imposing an additional requirement that the information regarding potential suspensions and criminal penalties be specifically tailored to the circumstances of individual licensees. Aside from the fact that the Act does not require such specificity, it would be unrealistic to assume that at the time warnings must be given, arresting officers have sufficient accurate information to know what potential penalties the arrestee faces. ...
Here, Officer Walter informed Licensee he was under arrest for DUI, and was asked to submit to chemical blood testing. Officer Walter also advised Licensee that he did not have the right to speak to an attorney before deciding whether to submit to testing. Further, Officer Walter informed Licensee that if he refused to submit to chemical blood testing his operating privilege "will be suspended for six or more months." C.R., Ex. C2, DVD: 5/23/11 at 56:38-56:45. He also informed Licensee "he will face more severe penalties" as a result of a refusal. Id. at 55:49-55:55.
Although Officer Walter initially informed Licensee his license "could" be suspended as a consequence of his refusal, the second time Officer Walter read Licensee the warnings, he informed him his license "will be suspended" if he refused testing. Certified Record, Ex. C2, DVD: 5/23/11 at 55:55-55:57, 56:38-56:45. Licensee does not challenge this language as inadequate, and we believe the language is, in fact, sufficiently definitive. See, e.g., Smolick v. Commonwealth, 430 A.2d 1230, 1231 (Pa. Cmwlth. 1981) (where police officer informed a licensee that he "could and would" lose his license if he refused testing, warning was sufficient). --------
Although in Yourick, Garner, and Weaver (I and II), the officers read the DL-26 Forms to the licensees, our review of the record here, including the DVD, reveals that Officer Walter gave Licensee all of required warnings, despite not reading the language of the DL-26 Form verbatim. Based on the above-cited authority, Officer Walter's warnings to Licensee were sufficient to inform Licensee of the consequences of his refusal to submit to chemical testing under Sections 1547(b)(2).
Further, contrary to Licensee's assertions, this case is distinguishable from our decision in Reed. In Reed, we affirmed a common pleas court's order sustaining a licensee's suspension appeal where a police officer did not inform the licensee of the consequences of a refusal as a result of the licensee's verbally abusive conduct. In Reed, the police officer only read paragraphs 1 and 2 of the DL-26 Form, which only informed the licensee that he was under arrest for DUI and that a chemical blood test was requested. We held the licensee's verbally abusive conduct did not excuse the police officer from informing the licensee of the consequences of a refusal.
Here, unlike in Reed, Officer Walter did, in fact, sufficiently inform Licensee of the consequences of a refusal, despite the fact that Officer Walter did not read paragraph 3 of the DL-26 Form verbatim.
We also reject Licensee's reliance on Yoon. There, we held a police officer did not adequately inform a licensee of the consequences of a refusal, "when the police officer merely provided [the] [l]icensee with [the DL-26] form rather than reading the warnings to him." Id. Here, Officer Walter did not merely provide Licensee with a copy of the DL-26 Form; rather, he verbally communicated the required warnings.
Also distinguishable is the Superior Court's decision in Xander. In that case, the Superior Court affirmed a common pleas court's decision that, in the context of a criminal sentencing, it could not impose the enhanced penalties set forth in Section 3804(c) of the Vehicle Code against a defendant where the arresting officer did not provide the defendant with the Section 1547(b)(2)(ii) "enhanced penalties warning."
Here, unlike in Xander, we are not confronted with the issue of whether a common pleas court properly declined to impose the enhanced penalties in Section 3804(c) where a police officer did not provide a defendant with the required warnings. Further, in this case Officer Walter informed Licensee that he would face "more severe penalties" if he refused testing. C.R., Ex. C2, DVD: 5/23/11 at 55:49-55:55. Thus, Xander is not applicable here.
Based on the foregoing, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 24th day of May, 2013, the order of the Court of Common Pleas of Bucks County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge