Opinion
No. 1441 C.D. 2014
04-01-2015
Cheryl A. Perry, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Cheryl A. Perry (Licensee) appeals from the July 22, 2014, order of the Court of Common Pleas of Lancaster County (trial court) dismissing Licensee's appeal from the Department of Transportation's (DOT) suspension of her operating privilege under section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1), commonly referred to as the Implied Consent Law, for her refusal to submit to chemical testing. We affirm.
On February 23, 2013, Officer Jesse Blank was on patrol in Conestoga Township when he observed a white Chevrolet Tracker with an inoperable brake light. Officer Blank pulled the vehicle over in the driveway of a mobile home lot. Licensee initially exited her vehicle, but Officer Blank asked her to return to the vehicle. While speaking to Licensee, Officer Blank smelled an odor of alcohol emanating from the vehicle. Licensee told Officer Blank that she had been drinking earlier in the evening.
Officer Blank performed three field sobriety tests on Licensee: the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test. Licensee failed all three tests. Licensee also completed a preliminary breath test at the officer's request. Based on the results from all four tests, Officer Blank took Licensee into custody on suspicion of driving under the influence of alcohol (DUI). Officer Blank reviewed the DL-26 Implied Consent Form (DL-26 Form) warnings with Licensee, and she agreed to take a breathalyzer test. However, because the breathalyzer machine at his police station was not working, Officer Blank transported Licensee to the nearby Millersville Borough police station.
The DL-26 Form warnings "are sufficient as a matter of law to advise a licensee of his [or her] rights under the Implied Consent Law." Walkden v. Department of Transportation, Bureau of Driver Licensing, 103 A.3d 432, 440 n.3 (Pa. Cmwlth. 2014).
After bringing Licensee into the breath-testing room at the Millersville station, Officer Blank learned that the breathalyzer machine was not working. Officer Blank advised Licensee that the breathalyzer machine was down and that he would be unable to administer the test. Officer Blank then asked Licensee to submit to a blood test, which she refused. The officer again advised Licensee of the DL-26 Form warnings, but she still refused.
Based on Licensee's refusal, DOT sent Licensee a letter notifying her that her operating privilege would be suspended. Licensee appealed, and the trial court held an evidentiary hearing on July 22, 2014, at which only Officer Blank testified. Thereafter, the trial court dismissed Licensee's appeal and reinstated DOT's suspension of her operating privilege. The trial court determined that DOT met its burden of proving that Licensee refused to submit to a chemical test following her arrest for DUI. 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 and whether the trial court committed an error of law or manifestly abused its discretion. Stahr v. Department of Transportation, Bureau of Driver Licensing, 969 A.2d 37, 39 n.2 (Pa. Cmwlth. 2009).
On appeal, Licensee contends that pursuant to Karabinos v. Department of Transportation, Bureau of Driver Licensing, 739 A.2d 601 (Pa. Cmwlth. 1999), her failure to consent to a blood test did not constitute a refusal under the Implied Consent Law because Officer Blank never explained why a blood test was necessary after she had already consented to a breath test. We disagree.
In a license suspension appeal, DOT has the burden of proving that the licensee: "(1) was arrested for [DUI]; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of [his or] her driving license." Karabinos, 739 A.2d at 603 n.6. The only element at issue in this case is whether DOT met its burden of proving that Licensee refused to submit to a chemical test. "Whether a licensee's conduct constitutes a refusal . . . is a question of law fully reviewable by this [c]ourt." Walkden, 103 A.3d at 440. --------
Generally, if a motorist suspected of DUI has already performed one valid chemical test, then his or her failure to consent to a second test is not a refusal within the meaning of the Implied Consent Law. Department of Transportation, Bureau of Driver Licensing v. Fellmeth, 528 A.2d 1090, 1092 (Pa. Cmwlth. 1987). A police officer may request that a motorist submit to a second chemical test only when problems with the first test or other special circumstances make the request reasonable. Karabinos, 739 A.2d at 603. Where a police officer requests a second chemical test, the officer must inform the motorist why he or she is requesting the second test. Ryan v. Department of Transportation, Bureau of Driver Licensing, 823 A.2d 1101, 1104 (Pa. Cmwlth. 2003).
In Karabinos, a motorist suspected of DUI consented to and supplied two breath samples. 739 A.2d at 602. The officer who administered the tests informed the arresting officer that the results were invalid because the deviation between the two readings exceeded the permissible limit. Id. The arresting officer then advised the motorist of the Implied Consent Law warnings a second time and asked him to submit to a blood test. Id. However, the officer did not tell the motorist why he was requesting a blood test. Id. On appeal, this court held that because the officer failed to explain the reason for the second chemical test, the motorist's failure to consent to the blood test was not a refusal under the Implied Consent Law. Id. at 604. When an officer asks a motorist to take a different type of chemical test, other than the one originally chosen and administered, the officer must advise the motorist of the reason for the second test "in order to dispel the [motorist's] possible, and reasonable, subjective belief that he fulfilled his obligation under the Implied Consent Law by complying with an initial chemical test." Id.
Licensee asserts that pursuant to Karabinos, she reasonably and subjectively believed that she fulfilled her obligation under the Implied Consent Law by consenting to a breath test, even though no breath test was administered. Karabinos, however, is factually distinguishable from this case.
First, Officer Blank did inform Licensee why he was requesting a different chemical test. After arriving at the Millersville station, Officer Blank learned that the breathalyzer machine was not working and informed Licensee that the machine was down. Officer Blank testified:
I turned to [Licensee] and advised her exactly what I had been told by Officer Hottenstein and I advised her that we were gonna [sic] be unable to do the breath testing at their station and I requested that she go with me to Lancaster General Hospital for a blood draw.(N.T., 7/22/14, at 16; see id. at 27-28.) Officer Blank then advised Licensee of the DL-26 Form warnings and asked her to submit to a blood test, which she refused. The trial court credited Officer Blank's testimony. Questions of witness credibility and evidentiary weight are solely within the province of the trial court as factfinder, and we will not disturb those findings on appeal. See Reinhart v. Department of Transportation, Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008). Based on the credible evidence, the trial court properly concluded that Officer Blank advised Licensee of the reason for the blood test.
Second, unlike the motorist in Karabinos, Licensee never provided a post-arrest breath sample, a fact that Licensee does not dispute. Because no chemical test had been performed, Licensee was obligated to comply with Officer Blank's subsequent request for a blood test. See Lamond v. Department of Transportation, Bureau of Driver Licensing, 716 A.2d 1290, 1292-93 (Pa. Cmwlth. 1998) (holding that where, in effect, no breath test occurred due to invalid test readings, the officer was justified in requiring the motorist "to provide another sample of breath, blood[,] or urine for testing"); Department of Transportation, Bureau of Traffic Safety v. Fullerton, 377 A.2d 1024, 1027 (Pa. Cmwlth. 1977) (holding that where the motorist's first breath test produced no result because the machine was set incorrectly, no test occurred; thus, the motorist was obligated to comply with the officer's request for a second test).
Accordingly, because the trial court correctly determined that Licensee's failure to consent to a blood test constituted a refusal under the Implied Consent Law, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 1st day of April, 2015, we hereby affirm the July 22, 2014, order of the Court of Common Pleas of Lancaster County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge