Opinion
No. 2173 C.D. 2012
09-25-2013
Alfredo Martinez, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Alfredo Martinez (Licensee), pro se, appeals from the Northampton County Common Pleas Court's (trial court) October 26, 2012 order denying his appeal and directing the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) to reinstate the suspension of his operating privileges. Licensee presents three issues for this Court's review: (1) whether the police followed proper procedure regarding the chemical testing request; (2) whether Licensee's refusal was invalidated by his subsequent offer to submit to chemical testing; and (3) whether Licensee was permitted to refuse chemical testing on the basis of his religious beliefs. We affirm.
The facts as found by the trial court are as follows. On January 31, 2012, during a vehicle traffic stop, the police developed reasonable grounds to believe that Licensee was driving his vehicle while under the influence of alcohol. He was, therefore, detained, arrested and transported directly to the Northampton County DUI Center for processing. Licensee was advised of his rights pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547, and refused to submit to a blood alcohol test (BAC). For a short period thereafter, Licensee raised some questions, suggesting that he was reconsidering his refusal. After being given a second chance to submit to the BAC test, Licensee again refused. Later, during the processing, Licensee again made statements suggesting that he was reconsidering his position, making statements to the effect of "drain it" and "take it." At that point, the officer informed Licensee that he had already determined that Licensee refused his request and the officer did not engage in any further discussion on the matter.
This statute is commonly known as the Implied Consent Law.
On December 5, 2012, DOT sent Licensee official notice imposing a one year driving suspension pursuant to Section 1547(b)(1)(i) of the Vehicle Code. Licensee appealed to the trial court. The trial court held a hearing and denied Licensee's appeal. Licensee appealed to this Court.
"Our scope of review of a decision in a license suspension case is limited to determining whether the trial court's findings of facts are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion in reaching its decision." Orloff v. Dep't of Transp., Bureau of Driver Licensing, 912 A.2d 918, 922 n.7 (Pa. Cmwlth. 2006).
To sustain a license suspension under Section 1547(b) of the Vehicle Code, DOT has the burden of establishing that (1) the licensee was arrested for drunken driving by a police officer having reasonable grounds to believe that the licensee was driving while under the influence, (2) the licensee was requested to submit to a chemical test, (3) the licensee refused to do so and (4) the licensee was warned that refusal would result in a license suspension. Once DOT meets this burden, the burden shifts to the licensee to establish that he or she either was not capable of making a knowing and conscious refusal or was physically unable to take the test.Wright v. Dep't of Transp., Bureau of Driver Licensing, 788 A.2d 443, 445 (Pa. Cmwlth. 2001) (citation omitted).
Licensee first argues that the police did not follow proper procedure when requesting him to submit to chemical testing. Specifically, Licensee contends that he was never given the opportunity to read the statement of his rights, thus, his refusal was not knowing. We disagree.
"It is clear that an officer has to orally inform a licensee of the consequences of refusing chemical testing for a licensee's refusal to be considered an adequately[-]informed refusal." Harris v. Dep't of Transp., Bureau of Driver Licensing, 969 A.2d 30, 32 (Pa. Cmwlth. 2009) (emphasis added). There is no requirement that a licensee be given an opportunity to read said warnings. See Sitoski v. Dep't of Transp., Bureau of Driver Licensing, 11 A.3d 12, 18 (Pa. Cmwlth. 2010) ("all that is required is that the warnings be read to the licensee and the licensee be given a 'meaningful opportunity to comply . . . .'"). Here, the officer read the warnings twice to Licensee and Licensee immediately thereafter refused both times. More importantly, when proving that a licensee's refusal is not knowing, "[i]f the motorist's inability to make a knowing and conscious refusal of testing is caused in whole or in part by consumption of alcohol, the licensee is precluded from meeting [his] burden as a matter of law." Lanthier v. Dep't of Transp., Bureau of Driver Licensing, 22 A.3d 346, 349 n.2 (Pa. Cmwlth. 2011) (emphasis added). At the hearing, while questioning the DUI processing video camera operator Jack Fliter (Fliter), Licensee stated:
All right. So which brings me back to the original question. If I said no while I was confused and obviously up since five o'clock in the morning, obviously had alcohol in my system, so now I'm tired, I'm confused and I'm exhausted and I'm trying to understand what's being read to me. . . .Reproduced Record (R.R.) at 35 (emphasis added). Because Licensee admitted that part of his confusion was due to the consumption of alcohol, as a matter of law, he is precluded from prevailing on this argument.
Licensee next argues that his refusal was invalidated by his subsequent offer to submit to chemical testing. Specifically, he contends that after being asked and refusing twice, he rolled up his sleeves and said: "Go ahead take it," which was an assent that vitiated his previous refusals. We disagree.
This Court has held that "anything less than an unqualified, unequivocal assent to chemical testing is a refusal." Dep't of Transp., Bureau of Driver Licensing v. Wendler, 638 A.2d 377, 378 (Pa. Cmwlth. 1994). Moreover, "an assent to submit to chemical testing cannot vitiate a prior refusal[.]" Id. at 378 n.2. "Police officers are not required to spend time either cajoling an arrestee or waiting for him to change his mind." Dep't of Transp., Bureau of Traffic Safety v. Ferrara, 493 A.2d 154, 156-57 (Pa. Cmwlth. 1985). Here, immediately following both readings of the informed consent form, Licensee refused testing. Accordingly, Licensee subsequently rolling up his sleeves and telling the officers: "Go ahead take it," does not vitiate his prior refusals.
Lastly, Licensee argues that he was permitted to refuse to submit to chemical testing based on his religious beliefs. DOT responds that because Licensee did not mention his religious beliefs at the time of his processing, this argument is waived. We agree with DOT.
Regardless of circumstances, such as medical, physiological or psychological conditions, or religious convictions, "a police officer with reasonable grounds to believe that a licensee was operating a vehicle under the influence has unfettered discretion under Section 1547 [of the Vehicle Code] to request the licensee to submit to a breath, blood or urine test . . . ." Mooney v. Dep't of Transp., Bureau of Driver Licensing, 654 A.2d 47, 50 (Pa. Cmwlth. 1994) (quoting McCullough v. Dep't of Transp., Bureau of Traffic Safety, 551 A.2d 1170, 1172 (Pa. Cmwlth. 1988)). Further, "a driver's simple declaration of incapacity to perform a chemical test, without medical proof, will not justify a refusal." Wright, 788 A.2d at 447. Here, there was no declaration of religious convictions. The hearing transcript reveals the following exchange took place while Licensee was cross-examining Fliter:
In addition to reviewing the hearing transcript, this Court has reviewed Fliter's video recording. --------
Q: And what was the reason that I had initially said that I was uncomfortable giving the blood sample the very first time I was asked a question?R.R. at 33-34. This record evidence supports the conclusion that Licensee never stated his refusal was based on religious beliefs. Even if he had, his refusal to submit to the particular test proffered by the officer would, nevertheless, have constituted a refusal sufficient to warrant his license suspension. See McCullough v. Dep't of Transp., Bureau of Driver Licensing, 551 A.2d 1170 (Pa. Cmwlth. 1988). Accordingly, Licensee's claim that he was permitted to refuse to submit to chemical testing based on his religious beliefs lacks merit.
A: From the video, I believe it was because you wanted to talk to a lawyer, was the main reason or the first reason. After that, I don't know that you gave a reason. You just said no.
Q: Initially, I had refused to give the blood sample because I was uncomfortable doing it because of religious reasons. And then that's when I asked for a -- if I had the ability to talk to an attorney. . . . But so - and you're saying nowhere - there's no record of me saying that prior - this is the entire time that I was in your -
A: Yes, sir.
Q: -- center?
A: Yes, sir.
Q: From start to finish?
A: Yes, sir. And I have no recollection of you saying that. And as depicted by the video, I don't believe that was ever recorded by the video.
Q: No, I didn't see it on the video. . . .
For all of the above reasons, the trial court's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 25th day of September, 2013, the Northampton County Common Pleas Court's October 26, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge