Opinion
No. 1541 C.D. 2014
07-21-2015
Tekeesha Lovelace, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Tekeesha Lovelace (Licensee) appeals from an order of the Court of Common Pleas of Chester County denying her appeal from an 18-month suspension of her driver's license imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) for refusal of chemical testing in violation of Section 1547(b)(1)(ii) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(ii), commonly referred to as the Implied Consent Law. Finding no error, we affirm.
By notice dated December 11, 2013, the Department informed Licensee that her driving privilege was suspended effective July 12, 2014, based on her refusal to submit to a chemical test in violation of Section 1547 of the Vehicle Code on November 29, 2013. (Certified Record Item (R. Item) 6, Trial Exhibit C-1, Dec. 11, 2013 Notice.) The suspension was for a period of 18 months because Licensee had previously had her license suspended based on a refusal to submit to chemical testing on May 14, 2010. (Id.; R. Item 6, Trial Exhibit C-1, July 12, 2010 Notice.) Licensee appealed the suspension to the trial court, which held a de novo hearing on May 1, 2014. (R. Item 1, Petition for Review.)
At the hearing, Officer David Marquette of the City of Coatesville Police Department testified that on the afternoon of November 29, 2013 he pulled over Licensee's vehicle after observing that Licensee's windshield tint appeared to be in violation of the Vehicle Code and after recognizing Licensee, who he knew to have a suspended driver's license, as the driver. (Certified Record Item (R. Item) 6, May 1, 2014 Hearing Transcript (H.T.) at 21-22.) After pulling Licensee over, Officer Marquette received radio confirmation that Licensee was driving with a suspended license. (Id. at 22, 48.) Officer Marquette testified that when he approached the vehicle, Licensee had erratic eye movement, difficulty speaking and was swaying inside the vehicle. (Id. at 23.) Licensee also advised Officer Marquette that she did not have a driver's license. (Id.)
Section 4524(e)(1) of the Vehicle Code provides that "[n]o person shall drive any motor vehicle with any sun screening device or other material which does not permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of the vehicle." 75 Pa. C.S. § 4524(e)(1).
Officer Marquette testified that at this point he radioed for additional support, including his supervisor, Corporal Jeffrey Ingemie, and Coatesville's certified officer in field sobriety tests, Officer Steven Galletta. (Id. at 24.) Officer Marquette testified that when he asked Licensee to exit the vehicle for the field sobriety tests, Licensee had difficulty walking and used her left arm to support herself against her vehicle. (Id.) Officer Marquette observed that Licensee's eyes were bloodshot and glassy and, while he did not smell alcohol on Licensee, he did detect the chemical odor of phencyclidine, or PCP. (Id. at 26.)
Officer Galletta testified that he performed three field sobriety tests on Licensee: the walk-and-turn test, the one-legged stand test and the horizontal gaze nystagmus test. (Id. at 34-37.) Officer Galletta testified that Licensee failed each test. (Id.) Officer Galletta also observed that Licensee was exhibiting a heavy jerking of the eyes that is characteristic of individuals under the influence of alcohol or certain narcotics, including PCP. (Id. at 36-37.) Officer Galletta testified that he then asked Licensee to submit to a blood test at Brandywine Hospital and read her the implied consent warnings contained on the Department's DL-26 Form. (Id. at 38, 41; R. Item 6, Trial Exhibit C-1, DL-26 Form.) Officer Galletta testified that when he started reading the DL-26 Form, Licensee became highly agitated and started to yell at the other officers and bystanders. (R. Item 6, H.T. at 38.) Following his second reading of the form, Officer Galletta asked Licensee twice if she would consent to the blood test and she ignored his questions and continued to direct abusive language towards the other officers and bystanders. (Id. at 39.) Officer Galletta testified that he considered Licensee's failure to respond to his questions a refusal to submit to chemical testing and then asked her twice to sign the DL-26 Form to indicate her refusal. (Id.) Licensee did not respond to his requests for her to sign the form but continued to yell at the other officers and bystanders, which Officer Galletta considered to be a refusal to sign the form. (Id.)
Officer Marquette testified that he observed Officer Galletta administer the field sobriety tests, which Licensee failed, and observed him read the DL-26 Form implied consent warnings. (Id. at 25-27, 29-30.) Officer Marquette stated that Licensee was yelling at him throughout the reading of the warnings and that at no point did she indicate that she would submit to chemical testing. (Id. at 30.) Corporal Ingemie also testified at the hearing that Licensee appeared to be intoxicated upon exiting the vehicle, that Licensee failed the field sobriety tests, that Licensee was argumentative throughout the reading of the DL-26 Form and that she refused to submit to chemical testing or sign the form. (Id. at 49-51.)
Licensee testified at the hearing that she was pulled over on November 29, 2013, but stated that she was in fact pulled over during the morning and not the afternoon as the officers had stated and that Corporal Ingemie was not actually present at the scene. (Id. at 58-59, 61, 66.) Licensee testified that she was never asked to submit to a blood test and never saw or was asked to sign the DL-26 Form. (Id. at 63-69.) Licensee testified that she did not have a drug problem and was not under the influence of PCP at the time of the traffic stop but instead was on Xanax, which she takes twice per day as prescribed. (Id. at 62-63, 69-70.)
The trial court denied Licensee's appeal of her suspension, concluding that the Department had carried its burden of establishing that Licensee received the required warnings regarding the consequences of refusing the chemical test and refused to submit to a blood test as requested. (Id. at 76; Feb. 4, 2015 Trial Court Pa. R.A.P. 1925(a) Opinion at 2.) The trial court recognized that there was inconsistent testimony regarding the timing of Licensee's arrest for suspicion of driving under the influence, but found credible the testimony of Officer Galletta and Corporal Ingemie that Licensee was not free to leave after she failed the field sobriety tests and before being asked to submit to the blood test. (R. Item 6, H.T. at 39, 42-43, 51-52, 75-76.) This appeal followed.
Our scope of review of a trial court order sustaining a license suspension based upon a refusal to submit to chemical testing is limited to determining whether the trial court's findings are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion. McKenna v. Department of Transportation, Bureau of Driver Licensing, 72 A.3d 294, 298 n.5 (Pa. Cmwlth. 2013).
In order to sustain a suspension of operating privileges under the Implied Consent Law, the Department is required to prove that the licensee (i) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating the vehicle under the influence of alcohol or a controlled substance; (ii) was asked to submit to a chemical test; (iii) refused to do so; and (iv) was warned that a refusal would result in a suspension of operating privileges. Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999); Marone v. Department of Transportation, Bureau of Driver Licensing, 990 A.2d 1187, 1190 (Pa. Cmwlth. 2010). Additionally, where the Department seeks to enforce an 18-month suspension under Section 1547(b)(1)(ii), it must also establish that the licensee had been sentenced for a prior driving under the influence offense or that the licensee's operating privileges were previously suspended under the Implied Consent Law. 75 Pa. C.S. § 1547(b)(1)(ii); Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 22 (Pa. Cmwlth. 2010).
On appeal, Licensee does not challenge whether the Department met its burden in proving any of the elements of its prima facie case. Instead, Licensee appears to argue that her right to refuse chemical testing under the Implied Consent Law was illusory and the suspension of her license was thus invalid. Licensee asserts that, though the Implied Consent Law purportedly grants her a right to refuse chemical testing, the law does not require informed consent and that chemical testing could have been performed prior to an arrest. Therefore, according to Licensee, the issues of whether Coatesville police officers read her the warnings on the DL-26 Form or arrested her prior to reading the warnings were irrelevant to these proceedings and she "cannot be punished for refusing a test she had no right to refuse." (Licensee's Brief at 11.)
This argument is wholly without merit and misapprehends the nature of this proceeding. Operating a motor vehicle in Pennsylvania is a civil privilege conferred on state residents who meet the necessary qualifications set forth in the Vehicle Code. Department of Transportation, Bureau of Driver Licensing v. Scott, 684 A.2d 539, 544 (Pa. 1996); Garner v. Department of Transportation, Bureau of Driver Licensing, 879 A.2d 327, 331 n.3 (Pa. Cmwlth. 2005). Pursuant to the Implied Consent Law, all drivers are "deemed to have given consent" to chemical testing where an officer has reasonable grounds to believe that the driver was operating a vehicle under the influence of alcohol or a controlled substance. 75 Pa. C.S. § 1547(a). "The obligation to submit to testing is related specifically to the motorist's continued enjoyment of the privilege of maintaining his operator's license." Scott, 684 A.2d at 544; see also Sprecher v. Department of Transportation, Bureau of Driver Licensing, 100 A.3d 768, 772 (Pa. Cmwlth. 2014). Thus, rather than being "punished" as Licensee contends, the license suspension imposed upon Licensee pursuant to Section 1547(b) for failure to submit to chemical testing was a civil remedial sanction designed to effectuate the purpose of the Implied Consent Law to prevent intoxicated drivers on the roads. Commonwealth v. Wolf, 632 A.2d 864, 867 (Pa. 1993); Spagnoletti v. Department of Transportation, Bureau of Driver Licensing, 90 A.3d 759, 767 (Pa. Cmwlth. 2013); Ponce v. Department of Transportation, Bureau of Driver Licensing, 685 A.2d 607, 610 (Pa. Cmwlth. 1996); Department of Transportation v. Crawford, 550 A.2d 1053, 1054 (Pa. Cmwlth. 1988).
Furthermore, contrary to Licensee's argument, the requirement that the Department prove that an arrest took place prior to the request to submit to a chemical test is a well-established element in a license suspension case, see, e.g., Banner, 737 A.2d at 1206; Marone, 990 A.2d at 1190, and is derived directly from the text of the Implied Consent Law. Section 1547(b)(1) provides that "[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) (emphasis added).
75 Pa. C.S. § 3802 (relating to driving under the influence of alcohol or controlled substances).
In arguing that an arrest was not required, Licensee relies on Commonwealth v. Aiello, 675 A.2d 1278 (Pa. Super. 1996), in which the Superior Court stated that "[i]t is clear that, under § 1547(a)(1), a person may be subjected to blood tests for alcohol without first being arrested." 675 A.2d at 1280. However, Aiello was a prosecution for driving under the influence and the issue before the court was whether under Section 1547(a) the police officer who administered the test had reasonable grounds to believe that the appellant was driving under the influence such that consent to submit to a chemical test could be implied. The instant case, on the other hand, concerns the Department's obligation to suspend a driver's license when a driver fails to submit to chemical testing of Section 1547(b). Importantly, Section 1547(a) does not require that a driver be arrested at the time consent is implied while Section 1547(b) does require an arrest for a suspension to be imposed. Aiello itself makes the distinction between these two subsections of the Implied Consent Law perfectly clear: "a person must be placed under arrest prior to being subject to the mandatory license suspension provision of § 1547(b), but this arrest requirement has not been extended to situations where a person's blood is tested under the implied consent law of § 1547(a)(1)." 675 A.2d at 1280. --------
Licensee is correct that the Implied Consent Law does not require a licensee to give informed consent prior to submitting to a chemical test. As this Court has explained, "officers have no duty to make sure that licensees understand the [implied consent] warnings or the consequences of refusing a chemical test." Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 35 (Pa. Cmwlth. 2005); see also Scott, 684 A.2d at 546; Commonwealth v. Mordan, 615 A.2d 102, 108 (Pa. Super. 1992), aff'd 633 A.2d 588 (Pa. 1993). However, while the officer is not required to ensure comprehension of the warnings, under Section 1547(b)(2), the officer must inform the driver prior to testing that her operating privileges will be suspended for failure to submit to testing. 75 Pa. C.S. § 1547(b)(2); see also Commonwealth v. Eisenhart, 611 A.2d 681, 683 (Pa. 1992) ("The relationship between the Implied Consent provision of Section 1547(a) and the suspension for refusal under Section 1547(b) is such that a driver may revoke his Implied Consent under Subsection (a) by refusing."). In addition, in Department of Transportation, Bureau of Traffic Safety v. O'Connell, 555 A.2d 873 (Pa. 1989), our Supreme Court determined that the arresting officer must also notify the driver that the constitutional rights provided by Miranda v. Arizona, 384 U.S. 436 (1966), are inapplicable to a request to submit to chemical testing. O'Connell, 555 A.2d at 878. "Once an officer provides [the warnings required under Section 1547(b)(2) and O'Connell] to a motorist, the officer has done all that is legally required to ensure that the motorist has been fully advised of the consequences of refusing to submit to chemical testing." Scott, 684 A.2d at 546; see also Martinovic, 881 A.2d at 35.
At the hearing, the Department presented evidence that Licensee's driving privileges had previously been suspended for refusal to submit to chemical testing and that she was pulled over for a suspended license on November 29, 2013. Officer Marquette testified that he observed that Licensee appeared to be intoxicated while he conducted the traffic stop and he requested officer support to administer field sobriety tests. Officer Galletta testified that Licensee failed her field sobriety tests, and when he read her the DL-26 Form warnings and asked her to submit to a blood test, she did not respond to Officer Galletta's questions but instead became belligerent and directed abusive language towards the officers and passersby. We conclude that this evidence was sufficient to support an 18-month license suspension under Section 1547(b)(1)(ii). Though Licensee did not explicitly refuse to submit to a blood test, "anything substantially less than an unqualified, unequivocal assent" constitutes a refusal, and Licensee demonstrated through her overall conduct a general unwillingness to submit to testing. Department of Transportation v. Renwick, 669 A.2d 934, 939 (Pa. 1996); Lanthier v. Department of Transportation, Bureau of Traffic Safety, 22 A.3d 346, 348 (Pa. Cmwlth. 2011).
Accordingly, the order of the trial court is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 21st day of July, 2015, the order of the Court of Common Pleas of Chester County in the above-captioned case is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge