Opinion
No. 278 C.D. 2012
07-24-2012
George Shea, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
George Shea (Shea) seeks review of the Court of Common Pleas of the 37th Judicial District's (Forest County Branch) (trial court) January 25, 2012 order dismissing his appeal and reinstating his license suspension based upon his refusal to submit to chemical testing, pursuant to Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547. The issue before this Court is whether the trial court properly concluded that Shea had failed to satisfy his burden of proof that he was incapable of making a knowing and conscious decision to refuse chemical testing. We affirm.
On August 28, 2011, shortly after leaving the Seldom Inn, Shea was involved in a motorcycle accident on Route 36 near the Pennsylvania State Trooper Tionesta Station. Trooper Mark Graf (Trooper Graf) of the Pennsylvania State Police, and Deputy David Wilson (Deputy Wilson) of the Forest County Sheriff's Department were among those who responded to the accident. Deputy Wilson arrived first and offered Shea assistance. Deputy Wilson detected the presence of alcohol on Shea, and asked him if he had been drinking. Shea admitted to drinking "too much". Reproduced Record (R.R.) at P63. Deputy Wilson did not observe Shea fall unconscious at any time. R.R. at P63. At some point prior to Deputy Wilson's arrival, Shea had given his cell phone to a bystander and asked that someone be contacted on his behalf. R.R. at P63, P65.
Upon Trooper Graf's arrival, Shea was laying in the road with medical personnel attending to him. R.R. at P9. When Trooper Graf approached and leaned over Shea, he smelled alcohol. R.R. at P10. Shea told Trooper Graf that a car had turned in front of him. R.R. at P9, P15. Trooper Graf asked Shea if he had been drinking. In response, Shea raised his head, moved his head up and down, laid his head back down, closed his eyes and did not reply. R.R. at P15-P16. Trooper Graf observed that Shea had a head wound, and a hand wound, but observed no other injuries. R.R. at P10, P25. Field sobriety tests were not conducted due to the circumstances.
Shea was taken to UPMC Northwest Medical Center (UPMC) for treatment. At Trooper Graf's request, Trooper Dennis Raymond Lindenberg (Trooper Lindenberg) went to UPMC to obtain a statement and blood sample from Shea. Upon arrival, Trooper Lindenberg observed Shea being uncooperative with the emergency room staff. R.R. at P31. With the consent of the emergency room doctor, Trooper Lindenberg entered Shea's room and smelled a strong odor of alcohol. R.R. at P32. He observed Shea, who was lying in a hospital bed, with some facial injuries and wearing a neck brace. R.R. at P32, P37. Shea could move his arms and legs. R.R. at P37. Trooper Lindenberg identified himself, informed Shea that he was under arrest for driving under the influence of alcohol and read Shea the O'Connell warnings and the implied consent DL-26 form. R.R. at P32-P33. Trooper Lindenberg then asked Shea if he would submit to a chemical test. R.R. at P35. Initially, Shea just moaned. When Trooper Lindenberg told emergency room staff that he wanted a blood draw, Shea responded, "I am f[-]ing refusing. . . . I am refusing all medical treatment." R.R. at P35. Shea then became combative with a trauma surgeon and staff and attempted to get out of bed. R.R. at P36, P48. Shea's blood alcohol level was ultimately determined to be 0.17. R.R. at P45.
See Dep't of Transp., Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989).
On November 21, 2011, the Pennsylvania Department of Transportation, Bureau of Driver Licensing (DOT) mailed Shea notice of his driver's license and commercial driving privilege suspensions, effective December 26, 2011. On December 19, 2011, Shea filed a Statutory Operator's License and Commercial Driver's Disqualification Appeal and Request for Supersedeas of the License Suspension and Disqualification. On January 3, 2012, the trial court granted Shea's motion for a de novo hearing and request for supersedeas. The de novo hearing was held on January 25, 2012. The trial court dismissed Shea's appeal finding that Shea had failed to meet his burden to establish a basis for refusing the chemical testing. Shea appealed to this Court.
"This Court's standard of review is limited to determining whether the trial court's findings are supported by competent evidence, whether errors of law have been committed or whether the trial court's determinations demonstrate a manifest abuse of discretion." Kollar v. Dep't of Transp., Bureau of Driver Licensing, 7 A.3d 336, 339 n.1 (Pa. Cmwlth. 2010). --------
To sustain a suspension of operating privileges under Section 1547 of the Vehicle Code, 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.Kollar v. Dep't of Transp., Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010). This Court has also explained that:
[a] 'refusal' is 'anything substantially less than an unqualified, unequivocal assent to [submit to] a [chemical] test. . . . A refusal need not be expressed in words, but can be implied from a motorist's actions.' Whether the conduct of a licensee constitutes a refusal is a question of law. If DOT satisfies the above four elements, the burden shifts to the licensee to establish that she was not capable of making a conscious and knowing refusal to submit to chemical testing. A licensee's self-serving testimony that she was unable to provide a conscious and knowing refusal is insufficient to satisfy the licensee's burden of proof. Although not a per se requirement, medical testimony is generally required to establish that a licensee was incapable of providing a knowing and conscious refusal of chemical testing. Notwithstanding, medical testimony is not required where the severity and incapacitating effect of a licensee's injuries are obvious. Whether a licensee was capable of making a conscious and knowing refusal is a factual determination to be made by the trial court.Lanthier v. Dep't of Transp., Bureau of Driver Licensing, 22 A.3d 346, 348-49 (Pa. Cmwlth. 2011) (citations omitted). "If the motorist's inability to make a knowing and conscious refusal of testing is caused in whole or in part by the consumption of alcohol, the licensee is precluded from meeting [his] burden as a matter of law." Id., 22 A.3d at 349 n.2.
Shea concedes that DOT met its initial burden under the four part test, but argues that the trial court erred when it concluded that his injuries were not obvious, severe and incapacitating to render him incapable of making a conscious and knowing refusal to submit to chemical testing. We disagree.
Shea argues that the facts in the instant case are analogous to those in the cases of McQuaide v. Department of Transportation, Bureau of Driver Licensing, 647 A.2d 299 (Pa. Cmwlth. 1994) and Department of Transportation, Bureau of Driver Licensing v. Groscost, 596 A.2d 1217 (Pa. Cmwlth. 1991). He asserts that in both cases, injuries, somewhat similar to those here were found to be obvious and incapacitating, and thus, his injuries should have been found obvious, severe and incapacitating. However, in McQuaide and Groscost, unlike the current case, the trial court found that the injuries sustained were obvious, severe and incapacitating. In each case, this Court deferred to the trial court as factfinder. As noted in Groscost:
[a]s long as sufficient evidence exists in the record which is adequate to support the finding found by the trial court, as factfinder, we are precluded from overturning that finding and must affirm, thereby paying the proper deference to the factfinder who heard the witnesses testify and was in the sole position to observe the demeanor of the witnesses and assess their credibility.Groscost, 596 A.2d at 1220 n.6. The trial court in the instant matter found the injuries not to be obvious, severe and incapacitating. As in the aforementioned cases, we must afford the trial court deference so long as the finding is based upon competent evidence.
At the hearing, Judge Hammond determined that Shea consciously and knowingly refused to submit to chemical testing, stating as follows:
Mr. Shea responded [to the request for a blood sample]. His refusal was quite adamant. He is f-ing refusing throughout the evening on several occasions. He responded appropriately when questioned. He was able to explain shortly after the accident what he believed the cause of the accident was [-- t]hat a vehicle pulled out in front of him. He acknowledged that he had been drinking. He requested that bystanders make a telephone call to his paramour. When asked about submitting to the test, and faced with the possibility of somebody would draw blood from him for
testing, he certainly responded to that matter, indicating that he is refusing. And, on top of that, he is refusing medical treatment. So, I don't believe he was unconscious. I don't believe at the appropriate times, he was unconscious or falling in and out of consciousness. And, therefore, I feel that his refusal to submit to testing was knowing and conscious.R.R. at P84-P85. In his Opinion pursuant to Pa.R.A.P. 1925(a) (1925(a) Opinion), Judge Hammond found that Shea's injuries were not obvious, severe or incapacitating, relying upon the following testimony:
Although Appellant testified to his injuries, he did not introduce expert medical testimony or any other medical evidence noting the extent and nature of his injuries. . . . Trooper Graf and Deputy Wilson testified that they had noticed that Appellant had a head injury and abrasions to his hand but did not observe any other injuries. Also, Deputy Wilson testified that Appellant stated that he had too much to drink and had requested to know if anyone had reached someone for him on his cell phone. Based on Trooper Graf's testimony and Deputy Wilson's testimony, it appears that Appellant was conscious at the scene of the accident. Trooper Lindenberg observed Appellant at the hospital and testified that Appellant was uncooperative with the ER staff and attempted to get off of the bed. When Trooper Lindenberg requested appellant to submit to chemical testing, Appellant refused. . . . Medical testimony was required, not only to establish the extent of [Shea's] injuries, but to rule out the consumption of alcohol as a contributing factor as to any inability to make a knowing and conscious refusal to submit to chemical testing.1925(a) Opinion at 7.
"It is well settled that the trial court, sitting as fact finder, is free to believe all, part, or none of the evidence presented, to make all of the credibility determinations, and to resolve any conflicts in the evidence." Boro Constr., Inc. v. Ridley Sch. Dist., 992 A.2d 208, 218 n.16 (Pa. Cmwlth. 2010). Clearly, the trial court found Trooper Graf, Deputy Wilson, and Trooper Lindenberg's testimony credible.
Accordingly, the trial court properly concluded that Shea failed to satisfy his burden of proof that he was incapable of making a knowing and conscious decision to refuse chemical testing.
For the aforementioned reasons, the order of the trial court is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 24th day of July, 2012, the Court of Common Pleas of the 37th Judicial District's (Forest County Branch) January 25, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge