Opinion
No. 871 C.D. 2013 No. 872 C.D. 2013
12-04-2013
David Wayne Woodring, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
David Wayne Woodring (Licensee) appeals from two orders of the Court of Common Pleas of Schuylkill County (trial court). The trial court dismissed Licensee's statutory appeals from the suspension of Licensee's motor vehicle operating privileges by the Pennsylvania Department of Transportation, Bureau of Driver Licensing (DOT). DOT issued notices suspending Licensee's operating privileges under Section 1547(b)(1) of the Motor Vehicle Code (Code) based upon his alleged refusal to submit to blood alcohol testing. We affirm the trial court's orders.
75 Pa. C.S. § 1547(b)(1). Section 1547 of the Code is commonly referred to as Pennsylvania's Implied Consent Law.
In order to sustain a suspension of a licensee's operating privilege under Section 1547(b)(1) of the Code for a refusal to submit to chemical testing, 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). 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." Dep't of Transp., Bureau of Driver Licensing v. Mumma, 468 A.2d 891, 892 (Pa. Cmwlth. 1983) (citations omitted). Whether the conduct of a licensee constitutes a refusal is a question of law. Dep't of Transp., Bureau of Driver Licensing v. Kilrain, 593 A.2d 932, 934 (Pa. Cmwlth.), appeal denied, 529 Pa. 625, 600 A.2d 541 (1991). 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. Kollar, 7 A.3d at 339.
On January 31, 2013, DOT sent a notice of suspension to Licensee, indicating that, based upon his refusal to submit to chemical testing, DOT was suspending his license for eighteen (18) months under Section 1547(b)(1)(ii) of the Code. DOT sent another notice on the same date advising Licensee that it was disqualifying his commercial driving privileges under Section 1613 of the Code, based upon Licensee's refusal to submit to chemical testing. Licensee appealed to the trial court, which, on April 25, 2013, conducted a hearing on Licensee's appeal. Officer William Curilla (Officer Curilla), who is a police officer for McAdoo Borough, testified on behalf of DOT. Licensee testified on his own behalf.
75 Pa. C.S. § 1547(b)(1)(ii). Section 1547 of the Code provides, in part:
(a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a vehicle in the Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of the vehicle:
(1) in violation of [S]ection . . . 3802 (relating to driving under influence of alcohol or controlled substance . . . .
. . . .
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of [S]ection 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 as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
(ii) For a period of 18 months if any of the following apply:
(A) The person's operating privileges have previously been suspended under this subsection.
(B) The person has, prior to the refusal under this paragraph, been sentenced for:
DOT sought a larger period of suspension based upon a previous violation.(I) an offense under section 3802;
(II) an offense under former section 3731;
(III) an offense equivalent to an offense under subclause (I) or (II); or
(IV) a combination of the offenses set forth in this clause.
Officer Curilla testified that in January 2013, he observed a vehicle with a cracked windshield travelling in front of him, and he initiated a traffic stop. When Officer Curilla approached Licensee, the operator of the vehicle, and asked for a driver's license and vehicle registration, he detected a "strong odor of alcohol coming from [Licensee]" and observed that Licensee's eyes were "glossy." (Reproduced Record (R.R.) at 40a-41a.) When asked, Licensee admitted that he had been drinking at a bar in Hazleton. (R.R. at 41a.) Officer Curilla testified that he administered field sobriety tests to Licensee, including a "walk and turn" test and a test involving nine steps forward and nine steps back, both of which Licensee failed. (R.R. at 42a.) Another police officer, Officer Homanko, administered a portable breath test, which produced a result of 0.159. (R.R. at 43a; 49a.)
According to the suspension notices, the date of the stop and chemical test request was January 10, 2013. According to Officer Curilla's testimony on cross-examination, the stop occurred at 10:40 p.m..
Officer Curilla testified that, based upon his observations of Licensee, (including the odor of his breath and condition of his eyes) and the results of the field sobriety tests (including the portable breath test), he took Licensee into custody for suspicion of driving under the influence of alcohol. (Id.) Officer Curilla testified that, after he placed Licensee under arrest, he read verbatim the implied consent warnings from DOT's DL-26 form. (R.R. at 43a-44a.) Officer Curilla testified that, although he did not fill in a blank on the DL-26 form to indicate the type of chemical test that he requested Licensee to take, he did ask Licensee at that time to submit to a blood test, and that Licensee told him that "he was going to refuse." (R.R. at 44a.) Officer Curilla testified that he "reiterated to [Licensee] the consequences of [a refusal]. But [Licensee] said he wanted to refuse the test." (R.R. at 45a.) Officer Curilla testified that Licensee signed and dated the DL-26 form. (Id.; See Exhibit in R.R. at 109a).
Form DL-26 provides, in pertinent part:
It is my duty as an officer to inform you of the following:
(R.R. at 109a; emphasis added.)1. You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code.
2. I am requesting that you submit to a chemical test of __________ (blood, breath or urine. Officer chooses the chemical test).
3. If you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months. . . .
4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to chemical testing, you will have refused the test, 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.
On cross-examination, Officer Curilla admitted that, when he took Licensee into custody by placing him in handcuffs and putting him in the back of Officer Curilla's vehicle, he did not read the Miranda warnings to Licensee. (R.R. at 50a.) Officer Curilla testified that, after he placed Licensee into the vehicle, he read the DL-26 verbatim from the outside of the vehicle, with the vehicle door open. (R.R. at 52a.) Officer Curilla testified that he made the stop about one block from Licensee's home, and that after Licensee refused to submit to testing, he and Officer Homanko drove Licensee to his home and watched him walk into his home. (R.R. at 54a.) Officer Curilla admitted that he did not take Licensee to police headquarters for booking, fingerprinting, or photographs. (R.R. at 55a.)
Licensee testified that he was only offered one field sobriety test—the toe to heel test, and that he did not receive instructions on how to perform the test. (R.R. at 61a.) Licensee testified that he blew into the "[b]reathalizer," but that the officer did not indicate whether he was over the legal limit. (R.R. at 61a-62a.) According to Licensee's testimony, Officer Curilla then told him that he had to "blow into the box or I'm going to have to take you to Pottsville. So I did that. And then he put the cuffs on me in the front." (R.R. at 62a.) Licensee testified that no officer informed him that he was under arrest or read Miranda warnings to him or asked him to submit to blood testing or a further breath test. (R.R. at 63a.) During his testimony, Licensee's counsel asked him to look at the completed DL-26 form filled out by Officer Curilla, and Licensee testified that he had never seen the form and that Officer Curilla never read to him from the form or advised him of the consequences of failing to submit to chemical testing. (Id.) Licensee testified that after the officers dropped him off and uncuffed him, he waited until they were no longer in sight and then returned to his vehicle and drove it back to his house. (R.R. at 64a-65a.)
On April 25, 2013, the trial court issued two orders (without opinions) dismissing Licensee's appeals and reinstating the eighteen-month suspension of Licensee's driving privileges and the twelve-month disqualification of his commercial driving privileges. Licensee appealed both orders and filed at the trial court's direction concise statements of errors complained of on appeal. In its Pa. R.A.P. 1925(a) opinions, the trial court indicated that it found Officer Curilla's testimony credible and determined that Officer Curilla had reasonable grounds to suspect Licensee had been operating his vehicle while under the influence of alcohol and that Licensee refused to submit to chemical testing in violation of Section 1547 of the Code. Licensee appealed both orders to this Court, and we consolidated the matters.
On appeal, Licensee raised the following issues: (1) whether DOT satisfied its burden to prove all the elements necessary to support a suspension of Licensee's driving privileges, which include: (a) Licensee was arrested based upon reasonable grounds that he was driving while under the influence of alcohol; (b) Licensee was asked to submit to chemical testing; (c) Licensee refused to submit to testing; and (d) Licensee was warned that refusing to submit to testing would result in a suspension of his license and would result in an enhanced suspension if he was convicted criminally of driving while intoxicated; and (2) whether the trial court erred in failing to conclude that Licensee did not make a knowing and conscious refusal.
"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, 7 A.3d at 339 n.1.
Licensee argues that Officer Curilla never effectuated an arrest. This Court has held:
[U]nder 75 Pa. C.S. § 1547(b)(1), it is necessary for the Department to prove that the licensee "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." Banner v. Dep't of Transp., [Bureau] of Driver [Licensing], 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999) (emphasis added). An arrest for purposes of Section 1547 has been defined as any act that indicates an intention to take a person into custody and subjects that person to the actual control and will of the arresting officer. Glass v. Dep't of Transp., [Bureau] of Traffic Safety, 460 Pa. 362, 366, 333 A.2d 768, 770 (1975). Whether a licensee has been placed under arrest for purposes of Section 1547 is a factual rather than a legal determination. Welcome v. Dep't of Transp., [Bureau] of Driver [Licensing], 647 A.2d 971, 974 (Pa. Cmwlth. 1994). In making this determination, the inquiry focuses on whether the licensee should infer from the totality of the circumstances that she is under the custody and control of the police officer. Pappas v. Dep't of Transp., [Bureau] of Driver [Licensing], 669 A.2d 504, 507 (Pa. Cmwlth. 1996)Nornhold v. Dep't of Transp., Bureau of Driver Licensing, 881 A.2d 59, 62 (Pa. Cmwlth.), appeal denied, 586 Pa. 744, 891 A.2d 735 (2005) (footnotes omitted).
Based upon a review of the decisions involving challenges under this element of DOT's case, it appears that the timing of the arrest or alleged arrest is significant. Some degree of control and custody such as to create an inference in the mind of a licensee that he has been arrested is a necessary prerequisite to a request by a police officer that a licensee submit to chemical testing. The actions of the police following a request to submit to chemical testing are not indicative of custody and/or control before such a request. In the cases this Court has reviewed where a licensee has claimed that an arrest did not occur, the facts frequently involve instances where an accident has occurred and the licensee is taken to a hospital for treatment.
In Maletic v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 640 (Pa. Cmwlth. 2003), this Court considered whether a trial court erred in concluding that a licensee had not been arrested for the purpose of Section 1547 of the Code. In that case, the licensee was involved in a single-vehicle accident, and a police officer investigating the accident noted a strong smell of alcohol from the licensee's breath, slurring of the licensee's words, and a case of beer in the vehicle. The injured licensee was taken to the emergency room. After investigating the accident at the scene, the officer went to the emergency room and told the licensee, while she was being treated, that he was investigating her for driving under the influence of alcohol. The officer then read the DL-26 form to the licensee, which includes the following statement to the effect that the licensee who is receiving the warnings contained therein is "now under arrest for driving under the influence of alcohol." The officer then asked the licensee several times to submit to chemical testing and warned the licensee again about the consequences of a refusal, but she continued to refuse. Thereafter, the officer left the emergency room and recorded the licensee's response as a refusal. The officer testified that he never arrested or took the licensee into custody, but he also testified that, if she had not been injured, he would have arrested her.
In considering whether DOT proved that the licensee in Maletic had been arrested for the purpose of Section 1547 of the Code, we reviewed several similar cases involving licensees who had been taken to hospitals before being taken into custody and/or arrested. We reiterated that the applicable standard is whether "under the totality of the circumstances, the reasonable impression of the licensee should have been that he was subject to the officer's custody and control." Maletic, 819 A.2d at 644. In most of those decisions, the police officers advised the licensee of their rights and indicated that they were going to arrest the licensee for driving under the influence. Thus, in situations where a police officer reads the implied consent warnings and also indicates plans to place a licensee formally under arrest in the future, this Court has found that such facts were sufficient under the totality of the circumstances standard to satisfy DOT's burden to prove an arrest occurred.
In Maletic, we distinguished our holding in Welcome v. Department of Transportation, Bureau of Driver Licensing, 647 A.2d 971 (Pa. Cmwlth. 1994), where we concluded that DOT had not established that the licensee had been arrested for the purpose of Section 1547 of the Code. In that case, the officer advised the licensee while the licensee was being treated in a hospital that he had the right to remain silent, informed the licensee of the implied consent law, and requested that the licensee submit to a blood test. In Maletic, we described the distinctions between Welcome and Maletic as follows:
We found significant in Welcome the fact that the officer never restricted the licensee's freedom at the hospital or indicated that he could not leave or would be placed under arrest for drunk driving. Also, we noted that the fact that the licensee would not leave the hospital because of his concern for his children, who were also in the accident and being treated, had no bearing on the fact that he could have left the hospital had he chosen to do so. Finally, we found it significant that when the licensee refused to consent to a chemical test, the officer simply left the hospital without "formally" arresting or charging him. Importantly, however, our decision in that case, does not state that the officer's explanation of the "implied consent law" included the paragraph read by
Officer Baird in the present case stating that the licensee was "now under arrest for driving under the influence." In addition, in our case it is clear from the record that Licensee was not going to be leaving the hospital anytime soon because she was undergoing emergency medical treatment. We, therefore, conclude that Welcome is distinguishable and that, in line with the cases cited by the Department, the totality of the circumstances indicate that there was an arrest.Maletic, 819 A.2d at 644 (emphasis in original).
Here, Officer Curilla testified that he took Licensee "into custody." Officer Curilla's testimony that he placed handcuffs on Licensee and positioned him in the back seat of his police vehicle supports his characterization of the matter as "custody." Officer Curilla admitted that he did not read the Miranda warnings to Licensee, but testified that he did read the implied consent warnings, which, as noted above, include a statement that the licensee is under arrest. Officer Curilla testified that he asked Licensee to submit to testing, but he twice refused, once after the reading of the warnings and once after Officer Curilla reiterated the consequences of a refusal. Officer Curilla testified that after the refusal, he released Licensee near his home and did not take Licensee to police headquarters for formal booking.
Officer Curilla placed obvious restrictions on Licensee's movement by using handcuffs and positioning Licensee in the back of the police vehicle before he read the implied consent warnings to Licensee, which included a statement indicating that Licensee had been arrested. Although, as noted above, we have not found the simple reading of the arrest statement in DOT's DL-26 form to be sufficient to constitute an arrest for the purpose of Section 1547 of the Code, Welcome, we conclude that, based upon the totality of the circumstances at the time Officer Curilla read the implied consent warnings to Licensee, the trial court could reasonably determine that Officer Curilla had placed Licensee under arrest. Officer Curilla had sufficiently restrained Licensee such that Licensee should have inferred or had the reasonable impression that he was placed under arrest at that time. The handcuffing and placement of Licensee in the police vehicle were sufficient factors to support a finding that the police had custody and control over Licensee at the time Officer Curilla read the implied consent warnings to Licensee. Accordingly, we conclude that DOT satisfied its burden to prove that Licensee was under arrest at the time Officer Curilla requested Licensee to submit to chemical testing.
Licensee also argues that DOT failed to offer sufficient evidence to satisfy its burden to prove that Officer Curilla had reasonable grounds to arrest Licensee, read the implied consent warnings, requested Licensee to submit to testing, and that Licensee refused. We agree with DOT's position that the credited testimony of Officer Curilla is sufficient to support the trial court's findings relative to DOT's burden. Licensee repeatedly argues that Officer Curilla's testimony was not credible. "As finder of fact, the trial court is the sole arbiter of questions concerning the credibility and weight of the evidence, and the trial court's determinations in these respects will not be disturbed unless the trial court abuses its discretion." McKenna v. Dep't of Transp., Bureau of Driver Licensing, 72 A.3d 294, 298 (Pa. Cmwlth. 2013).
Licensee also asserts that the trial court erred in relying upon the DL-26 form as support for its conclusion that Officer Curilla read the implied consent warnings to Licensee, because Licensee's signature and the date are not legible. Licensee contends that his own testimony indicates that Officer Curilla never presented him with the DL-26 form to sign, never read the implied consent warnings from the DL-26 form, and never advised him that a refusal would result in a suspension of his driving privileges. The trial court, however, did not find Licensee's testimony credible. Rather, the trial court found Officer Curilla's testimony credible, including the testimony that Licensee signed the DL-26 form. As discussed above, credibility determinations are within the purview of the trial court and we will not disturb those determinations in the absence of an abuse of discretion.
Licensee also argues that Officer Curilla's testimony relating to the refusal is insufficient with regard to Licensee's refusal to submit based upon alleged imperfections in the DL-26 form Officer Curilla completed. Licensee argues that the DL-26 form does not identify in the appropriate line which chemical test to which Officer Curilla requested Licensee submit. Licensee asserts that DOT should have offered corroborative evidence, such as testimony of Officer Homanko, who administered the portable breath test, and who presumably witnessed Licensee's refusal. Licensee also suggests that the evidence is untrustworthy because, if Officer Curilla had transported Licensee to police barracks or a hospital, someone would have been able to corroborate that Officer Curilla requested Licensee to submit to testing, and that he refused. Licensee offers no legal support for this argument, nor do we believe it has merit. Officer Curilla's credited testimony regarding the process of requesting Licensee to submit is sufficient as a matter of law to support the trial court's factual findings. As we stated above, we may not reweigh the evidence or review testimony for credibility. McKenna. Consequently, we reject Licensee's argument.
Licensee's last argument is that the trial court erred in concluding that Licensee did not satisfy his burden to prove that his refusal was not made knowingly and consciously. Licensee argues that given the lack of legibility of the signature and date on the DL-26 form, Officer Curilla's testimony was insufficient to demonstrate that Licensee knowingly and consciously refused to submit to testing. We disagree with Licensee's argument. To be successful in his claim that he did not make a knowing and conscious refusal, Licensee assumed the burden to prove such a fact. Kollar, 7 A.3d at 339; Plotts v. Dep't of Transp., Bureau of Driver Licensing, 660 A.2d 133, 136 (Pa. Cmwlth. 1995) (question of whether refusal is knowing and conscious is question of fact). Licensee again suggests that the evidence DOT offered was not reliable, but as we commented above, the trial court did not find Licensee credible and DOT did not bear the burden on this issue. We agree with DOT that Licensee is simply seeking to challenge the trial court's credibility determinations. Licensee offered no credible evidence on this issue. Consequently, we conclude that the trial court did not err in this regard.
Accordingly, we affirm the trial court's orders reinstating DOT's suspension of Licensee's driving privileges for eighteen months and disqualifying him from using his commercial driver's privileges for twelve months.
We note that Licensee filed an application for relief in the form of a "motion to stay listing of the instant matter for oral argument and/or submission of the matter to a panel pending lower court determination and motion to file supplemental/reply brief and reproduced record," essentially seeking to stay this Court's disposition of his appeal pending the outcome of his challenge to the criminal charges for driving under the influence of alcohol and seeking to file additional materials with this Court. Licensee requested a stay because he alleges that new evidence that he submitted during his criminal proceeding shows that the stop of his vehicle was illegal. As DOT points out, however, the legality of an arrest or stop is generally not relevant in a driver's license suspension case under Section 1547(b)(1) of the Law, as long as an arresting officer develops reasonable grounds to believe a driver has been operating a vehicle under the influence of alcohol after an alleged illegal stop. Dep't of Transp., Bureau of Driver Licensing v. Wysocki, 517 Pa. 175, 180-81, 535 A.2d 77, 79-80 (1987). While this Court has more recently noted a potential exception to this rule where a licensee raises an issue regarding the use of evidence derived from an allegedly unconstitutional stop, see Osselburn v. Department of Transportation, Bureau of Driver Licensing, 970 A.2d 534 (Pa. Cmwlth. 2009), Licensee here does not raise a constitutional claim regarding the legality of the stop in this license suspension appeal. Consequently, by order dated November 1, 2013, we denied Licensee's application for relief. --------
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 4th day of December, 2013, the orders of the Court of Common Pleas of Schuylkill County are AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge