BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge. OPINION BY JUDGE BUTLER. DISSENTING OPINION BY JUDGE LEAVITT. Judge McGinley and Judge Pellegrini join.

OPINION BY JUDGE BUTLER

The Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals from the November 16, 2007 order of the Court of Common Pleas of Allegheny County (trial court) setting aside its suspension of the operating privileges of Darlene Ann Yourick (Yourick). PennDOT suspended Yourick's driver's license pursuant to Section 1547 of the Vehicle Code after she refused to submit to chemical testing following her arrest for driving under the influence of alcohol (DUI).

On February 28, 2007, Yourick was arrested by Officer Sheldon Summers for DUI and was taken to the Forest Hills police station, where she was asked to submit to a breathalyzer test. Officer Summers read the chemical test warnings required by Section 1547(b) of the Vehicle Code to Yourick, three times, as they appeared on the August 2006 DL-26 Implied Consent Form (DL-26 Form). She read the form and asked questions. The first sentence of Warning 3 on DL-26 Form states: "[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence." Based upon her interpretation of the third paragraph of the DL-26 Form and the fact that she did not have any prior refusals, Yourick refused chemical testing.

On March 30, 2007, PennDOT notified Yourick that her driving privileges were being suspended for one year, effective May 4, 2007, as a result of her refusal to submit to chemical testing on February 28, 2007. Yourick appealed the suspension to the Court of Common Pleas of Allegheny County. The trial court held a de novo hearing on September 27, 2007. At the beginning of the hearing, Yourick stipulated that she was arrested for driving under the influence of alcohol; that there were reasonable grounds for requesting that she submit to a chemical test; that she was asked to submit to a breathalyzer test; and, that she refused to take the test.

On November 16, 2007, the trial court sustained Yourick's appeal, finding that the warning read by Officer Summers from the DL-26 Form to Yourick was poorly drafted and vague, thereby preventing Yourick from making a knowing and conscious refusal. PennDOT appealed to this Court. Our review is limited to determining whether the trial court committed an error of law or abused its discretion, and whether necessary findings of fact were supported by substantial evidence. Reinhart v. Dep't of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa. Cmwlth. 2008).

PennDOT argues on appeal that the trial court erred as a matter of law in concluding that, due to what it perceived as ambiguity in the DL-26 Form warnings, Yourick could not make a knowing and conscious refusal to submit to chemical testing. We agree. However, we find that the ultimate issue before this Court is whether the DL-26 Form warning was sufficient as a matter of law.

The operation of a motor vehicle in Pennsylvania "is a privilege subject to such conditions as the legislature may see fit to impose, . . . ." Dep't of Transp., Bureau of Driver Licensing v. Hoover, 147 Pa. Commw. 70, 606 A.2d 1264, 1266 (Pa. Cmwlth. 1992) (Palladino, J., dissenting). Among the conditions imposed upon that privilege is the implied consent to submit to chemical testing where there is reasonable cause to believe a licensee is driving under the influence of alcohol and/or a controlled substance. Hoover. Section 1547 of the Vehicle Code is a clear statement of the legislative purpose to keep drunk drivers off the roads. Id. Section 1547(b) of the Vehicle Code states:

(1) If any person placed under arrest for a violation of section 3802 [(relating to DUI)] 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 privileges 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:

(I) an offense under section 3802;

(II) an offense under former section 3731[(related to serious traffic offenses)];

(III) an offense equivalent to an offense under subclause (I) or (II); or

(IV) a combination of offenses set forth in this clause.

(2) It shall be the duty of the police officer to inform the person that:

(i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and

(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties).

It is well-settled that, in order to sustain a one-year license suspension under Section 1547 of the Vehicle Code, PennDOT must show that the driver (1) was placed under arrest for driving under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and, (4) was specifically warned that refusal would result in the suspension of his/her driver's license. Martinovic v. Dep't of Transp., Bureau of Driver Licensing, 881 A.2d 30 (Pa. Cmwlth. 2005). Once PennDOT's "burden has been met, the motorist must prove that his refusal was not knowing or conscious or that he was physically unable to take the test." Dep't of Transp., Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 446, 691 A.2d 450, 453 (1997).

There is no question that Yourick was placed under arrest for driving under the influence of alcohol, was asked to submit to a chemical test, she refused to do so, and Officer Summers read all four warnings on the DL-26 Form verbatim to Yourick three times, and that she read it herself. N.T. at 4-8, 10-11, 13-14; R.R. at 14a-18a, 20a-21a, 23a-24a, 33a, 51a. In order for Yourick to prevail on the appeal of her license suspension Yourick must, therefore, prove that her refusal to submit to chemical testing was not knowing or conscious. She attempts to do so by proving that her subjective interpretation of the wording of Warning 3 led her to refuse the test.

Because the "knowing and conscious" standard is not explicitly found in Section 1547, it "must be strictly construed as it creates exceptions to the clear language and policy of the implied consent law." Hoover at 1269. There is no requirement in Vehicle Code Section 1547(b)(2)(i) that the implied consent warning issued by an officer contain any specific wording. It must merely "inform" a licensee that his/her "operating privilege will be suspended upon refusal to submit to chemical testing." 75 Pa.C.S. § 1547(b)(2)(i). The Pennsylvania Supreme Court affirmed this Court's holding that a warning is legally sufficient if it informs the licensee that refusing a request for chemical testing means that he/she "will be in violation of the law and will be penalized for that violation." Dep't of Transp., Bureau of Driver Licensing v. Weaver, 590 Pa. 188, 191, 912 A.2d 259, 261 (2006), citing Weaver v. Dep't of Transp., Bureau of Driver Licensing, 873 A.2d 1, 3 (Pa. Cmwlth. 2005). The DL-26 Form did just that.

Warning 3 of the DL-26 Form begins, "[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence." (R.R. 33a). We hold that this warning sufficiently apprises the driver hearing and/or reading it that, if he/she refuses to submit to the chemical test, his/her operating privileges "will be suspended." That a particular motorist hearing the warning may question its interpretation is not a sufficient basis upon which to state that the refusal was not knowing and conscious. In fact, the Pennsylvania Supreme Court has held that "[a] motorist's subjective beliefs are an insufficient justification for refusing to comply with the mandates of the Implied Consent Law." Dep't of Transp., Bureau of Driver Licensing v. Scott, 546 Pa. 241, 249, 684 A.2d 539, 543 (1996) (driver did not believe the officer's warning). Further, we find it is unreasonable for a driver, whose operating privileges were granted subject to his/her implied consent to submit to chemical testing where there is reasonable cause to believe a licensee is driving under the influence of alcohol, to believe that there would not be a penalty for failure to submit to that testing.

We hold, therefore, that the DL-26 Form is sufficient as a matter of law to meet the warning requirement under Vehicle Code Section 1547(b), and that it appropriately apprised Yourick that her license would be suspended if she refused chemical testing on February 28, 2007.

Based upon the foregoing, we hold that the trial court erred, and its November 16, 2007 order must be reversed.

JOHNNY J. BUTLER, Judge

ORDER

AND NOW, this 4th day of February, 2009, the November 16, 2007 order of the Court of Common Pleas of Allegheny County is REVERSED.

JOHNNY J. BUTLER, Judge

Dissent by:MARY HANNAH LEAVITT

Dissent

DISSENTING OPINION BY JUDGE LEAVITT

Respectfully, I dissent. Darlene Yourick believed, mistakenly, that her driving privileges would not be affected if she declined chemical testing. Because Yourick's mistaken belief was created by PennDOT's poorly worded DL-26 warning, I would sustain her suspension appeal.

The DL-26 warning is mandated by Section 1547(b)(2) of the Vehicle Code, which states:

(2) It shall be the duty of the police officer to inform the person that:

(i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and

(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c)(relating to penalties).

75 Pa. C.S. §1547(b)(2) (emphasis added). The warning required by Section 1547(b)(2) is drafted by PennDOT, placed on its "DL-26 Form" and distributed to police departments across Pennsylvania. The DL-26 warning is then read aloud by the arresting officer to the motorist.

The DL-26 warning read to Yourick stated as follows:

[I]f you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence.

Form DL-26, Reproduced Record at 33a (R.R. ) (emphasis added). Yourick also read the form herself. Because Yourick did not have a prior refusal or conviction, she believed that the suspension warning did not apply to her. Stated otherwise, Yourick understood the final clause to apply to the entire warning, not just to the phrase "up to 18 months." The trial court found Yourick's reading reasonable, observing that PennDOT's run-on sentence was "vague." Accordingly, the trial court sustained Yourick's appeal.

The majority reverses the trial court for the stated reason that the warning read to Yourick contained the words "will be suspended." The majority assigns no significance to the fact that the phrase "will be suspended" was qualified by the phrase, "if you have prior refusals or have been previously sentenced for driving under the influence." Further, the majority assigns no significance to the trial court's factual finding that it was the ambiguous wording of PennDOT's DL-26 warning that caused Yourick to refuse chemical testing.

PennDOT concedes that its DL-26 warning is capable of two readings: that intended by PennDOT and that understood by Yourick. Brief for Appellant on Reargument at 22-23. A sentence that can be read two or more ways is ambiguous. Barasch v. Pennsylvania Public Utility Commission, 516 Pa. 142, 156, 532 A.2d 325, 332 (1987). There can be no dispute that the warning given to Yourick was ambiguous.

Ambiguities should and will be construed against the government. This principle has its foundation in the rule of lenity that provides that any ambiguity in a criminal statute will be construed in favor of the defendant. The rule of lenity requires a

clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be.

Commonwealth v. Reaser, 2004 PA Super 148, 851 A.2d 144, 149 (Pa. Super. 2004) (quoting Commonwealth v. Cluck, 252 Pa. Super. 228, 381 A.2d 472, 477 (Pa. Super. 1977)). Application of the rule of lenity extends beyond the context of criminal statutes.

It is a general principle, applicable in a variety of circumstances, that if "there is any ambiguity in the terms of a notice, rendering its meaning doubtful, the doubt must be resolved against the person giving the notice." 66 C.J.S. Notice §33 at 471 (2002). This principle applies with equal force to the "person" that happens to be a government agency. The Court of Appeals for the District of Columbia has explained:

In other areas of administrative law, we have emphasized the importance of eliminating ambiguity and, where we have found ambiguity, we have construed it against the government agency that drafted the language.

In the Matter of D.R., 541 A.2d 1260, 1264 (D.C. 1988).

Likewise, the appellate courts of Pennsylvania have held, in a variety of contexts, that the individual who receives an ambiguous governmental directive, whether drafted by the legislature, a court or an administrative agency, is entitled to have the ambiguity construed in her favor. For example, in Carborundum Company v. Combustion Engineering, Inc., 263 Pa. Super. 1, 396 A.2d 1346 (Pa. Super. 1979), the Superior Court concluded that a finding of civil contempt was improper given the language in the order that was allegedly violated, explaining:

The entry of an injunction is, in some respects, analogous to the publication of a penal statute. It is a notice that certain things must be done or not done, under a penalty to be fixed by the court. Such a decree should be as definite, clear, and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and, when practicable, it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ.

* * *

Thus, any ambiguities or omissions must be construed in favor of the person charged with contempt.

Id. at 1348. Similarly, in In re: Return of the McKean County Tax Claim Bureau, 677 A.2d 1325 (Pa. Cmwlth. 1996), this Court set aside a tax sale because of an unclear, ambiguous notice sent to the property owner by the tax claim bureau. Likewise, in Valianatos v. Zoning Hearing Board of Richmond Township, 766 A.2d 903 (Pa. Cmwlth. 2001), this Court set aside a zoning ordinance as void ab initio because the township's published notice that the ordinance would be enacted at the upcoming meeting was unclear. We explained that "the townships draft the public notices and . . . this Court and our Supreme Court have consistently interpreted ambiguous notices in favor of property owners." Id. at 906.

The principle of interpreting ambiguous language against the drafter has been applied specifically to the DL-26 warning. This Court has held that a "specific warning" under Section 1547(b)(2) is one that "precisely enunciate[s] . . . that a driver's license will be revoked." Everhart v. Commonwealth of Pennsylvania, 54 Pa. Commw. 22, 420 A.2d 13, 15 (Pa. Cmwlth. 1980) (emphasis added). In Everhart, we found that using the words "could be revoked" instead of "will be suspended" created a doubt. Accordingly, the licensee was entitled to have the doubt construed in his favor and against PennDOT, which was held not to have satisfied the mandate of Section 1547(b)(2). See also Peppelman v. Commonwealth, 44 Pa. Commw. 262, 403 A.2d 1041, 1043 (Pa. Cmwlth. 1979) (an officer's statement that the motorist's refusal to undergo chemical testing "could" result in a suspension was found to be an "inaccurate performance" of the statutory warning thereby requiring a reinstatement of the operator's license).

By PennDOT's own admission, the DL-26 warning read to Yourick was capable of being construed as not applying to her because she had not previously refused testing and had never been convicted of DUI. The trial court found, as fact, that Yourick refused chemical testing for the reason that she had no prior refusals or DUI sentences. Indeed, Yourick testified that had she understood the true meaning of the DL-26 warning, she would have agreed to the request for chemical testing. Instead of being warned, Yourick received misleading comfort from the phraseology of the DL-26 warning read to her.

Precedent establishes that a doubtful or ambiguous notice will be construed against the drafter. This principle has been applied, specifically, to warnings given under Section 1547(b) of the Vehicle Code. Yourick is entitled to have the ambiguity in PennDOT's DL-26 warning construed in her favor. As a consequence, PennDOT did not meet its burden of proving that it had "specifically warned" Yourick, as was required in order for PennDOT to suspend her license. Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 197, 723 A.2d 655, 657 (1999). Yourick was not warned; to the contrary, she was misinformed. The officer's "inaccurate performance" of the statutory warning requires that Yourick's operator's license be reinstated. Peppelman, 403 A.2d at 1043.

This is not a close case. I would affirm the trial court.

MARY HANNAH LEAVITT, Judge

Judge McGinley and Judge Pellegrini join.