Opinion
No. 213 C.D. 2013
11-08-2013
Sean McLinden, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Sean McLinden (Licensee) appeals from the January 15, 2013, order of the Court of Common Pleas of Allegheny County (trial court), which dismissed Licensee's appeal from the operating privilege suspension imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT). We affirm.
On April 6, 2012, DOT suspended Licensee's operating privilege for 12 months for refusing to submit to chemical testing in violation of section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1). Licensee appealed, and the trial court held a de novo hearing on September 20, 2012.
At the hearing, DOT presented the testimony of Steven Pies, a police officer with the Robinson Township Police Department, and Ryan Ging, a police officer with the Ohio Township Police Department. Officer Pies testified that on March 17, 2012, he stopped Licensee at a driving under the influence (DUI) checkpoint on Route 65 in Elmsworth Borough. Officer Pies noticed that Licensee had glassy, bloodshot eyes and that an odor of alcohol was emanating from the vehicle. Licensee admitted that he had consumed three alcoholic drinks. (Trial Ct. Op. at 2.)
Officer Pies escorted Licensee to a designated testing area. Here, Officer Ging took over the field investigation. Officer Ging performed three field sobriety tests, and Licensee exhibited signs of intoxication in each test. Officer Ging also administered a preliminary breath test, which registered positive. Officer Ging advised Licensee that he was under arrest for suspicion of DUI. (Id. at 2.)
Officer Ging accompanied Licensee to an onsite trailer for a blood test. Officer Ging recited the DL-26 consent form to Licensee. Licensee read the DL-26 form and signed it. However, Licensee repeatedly told Officer Ging that he would only give a blood sample at the hospital. Regarding this exchange, Officer Ging testified that "[Licensee] advised me he was willing to give blood, but not at that location." (N.T. at 19.) Officer Ging deemed Licensee's statements a refusal. (Trial Ct. Op. at 3.)
The trailer is staffed by a phlebotomist and utilized by officers at the DUI checkpoint for the purpose of blood draws. The trailer is 10 to 12 feet from where the field sobriety tests are performed. Officer Ging estimated that the trailer is 15 feet by 12 feet. (N.T. at 16.)
Officer Ging elaborated:
I explained to him logistically it's not possible for us to take each suspected drunk driver four municipalities away to a hospital. I said we have a certified phlebotomist coming, unopened sterile medical supplies; that's what [the phlebotomist] does, she draws blood.(N.T. at 19.)
I delayed - we talked back and forth while I was waiting for [the phlebotomist] to arrive. I wanted to give him every chance for the phlebotomist to get there before I really say for sure I feel it's a refusal.
* * *
Once the phlebotomist arrived, he still refused to provide any blood. He said he would give it, but not at that location. He wanted to go to the hospital.
Officer Ging placed Licensee, un-handcuffed, into a police van. Officer Ging testified that Licensee began shouting obscenities. Several officers pulled Licensee out of the car and forcibly handcuffed him.
Licensee testified at the hearing and told a different story. Licensee testified that he was willing to give blood, but not in the trailer because he was concerned with the onsite phlebotomist's quality control methods. Moreover, Licensee testified that he did not, at any point, shout vulgarities at the police. Instead, the officers removed him from the van and forcibly handcuffed him in response to his videotaping the DUI checkpoint on his phone. Finally, Licensee testified that after he was handcuffed, he stated that he was now willing to give a blood test. (Trial Ct. Op. at 3.)
Licensee was a 54-year-old neurologist who did subcontract work for the Federal Bureau of Investigation and had experience with blood tests.
Licensee testified: "Then the officer again asked if I would have a blood test. I said I would but I would prefer to be taken to the hospital." (N.T. at 36.) Later, on cross-examination, Licensee testified as follows:
Q. So when you told him you were willing to have blood drawn at a hospital you were implicitly telling him you weren't going to allow it to be drawn inside of this trailer, correct?(Id. at 45-46.)
A. Correct.
Q. And how many times did you tell Officer Ging while you were inside the trailer that you were willing to allow a blood sample to be drawn, but at a hospital?
A. He asked me two or three times, and each time I responded the same.
Q. So two or three times you told Officer Ging you were willing to submit to a blood draw at a hospital?
A. That's correct.
Q. And isn't it true that Officer Ging told you that you had to agree to have the blood drawn in the trailer or else it would be a refusal?
A. That's what he stated, yes.
Q. And nevertheless, you continued to each time tell him you would have - you agreed to a blood draw in a hospital?
A. That's correct.
Q. And you never told him inside the trailer that you would allow a blood sample to be drawn in the trailer?
A. That's correct.
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. Licensee now appeals to this court.
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). --------
Licensee argues that he did not refuse chemical testing when he requested to have his blood drawn at the hospital instead of in the trailer. We disagree.
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).
"The question of whether a licensee refuses to submit to a chemical test is a legal one, based on the facts found by the trial court." Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 19 (Pa. Cmwlth. 2010). "Any response from a licensee that is less than an unqualified, unequivocal assent to a chemical test constitutes a refusal." Bomba v. Department of Transportation, Bureau of Driver Licensing, 28 A.3d 946, 949 (Pa. Cmwlth. 2011) (finding that licensee's inability to complete a breath test did not constitute a refusal because licensee made a good faith effort to complete the test); see also McCullough v. Department of Transportation, Bureau of Traffic Safety, 551 A.2d 1170, 1173 (Pa. Cmwlth. 1988) (holding that a licensee's fear of needles does not legally justify refusing a blood test). "[O]nce [DOT] has established its burden in showing that the driver failed to submit to the chemical testing, the burden then shifts to the licensee to prove by competent evidence that he was physically unable to take the test or not capable of making a knowing and conscious refusal." Department of Transportation v. Morris, 621 A.2d 1170, 1172 (Pa. Cmwlth. 1993).
Here, Licensee did not provide an unqualified, unequivocal assent to Officer Ging's request for a chemical test because he repeatedly refused to take the blood test in the trailer. In certain situations, a health condition can render a particular type of chemical test impractical, and an officer must administer an alternative test. Cf. Martin v. Department of Transportation, Bureau of Driver Licensing, 20 A.3d 1250, 1253 (Pa. Cmwlth. 2011) (requiring a licensee to inform the officer of licensee's health condition at the time of testing). However, we find no case law supporting the argument that a licensee can request an alternate test location or that a police officer must provide one. Furthermore, Licensee's concerns about law enforcement's quality control procedures do not justify or excuse his refusal to submit to a blood test.
Licensee also argues that he later offered to take the blood test in the trailer and that his subsequent assent cured his prior refusal. We disagree.
Even accepting as fact, arguendo, that Licensee agreed to take the blood test after being handcuffed, 25 minutes after his initial refusal, it is well-established that once a licensee refuses to consent to a blood test, a subsequent offer to take the test does not vitiate the initial refusal. See Cunningham v. Department of Transportation, 525 A.2d 9, 10 (Pa. Cmwlth. 1987) (holding that licensee's changing her mind and agreeing to take the test five minutes after refusing did not vitiate the initial refusal).
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 8th day of November, 2013, we hereby affirm the January 15, 2013, order of the Court of Common Pleas of Allegheny County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge