Opinion
No. 2148 C.D. 2012
11-21-2013
Matzi Ben-Maimon, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Matzi Ben-Maimon (Licensee) appeals from an order of the Court of Common Pleas of Montgomery County that denied his statutory appeal from a one-year suspension of operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (Department) pursuant to Section 1547(b)(1)(i) of the Vehicle Code, as amended, 75 Pa. C.S. § 1547(b)(1)(i), for refusal to submit to a blood test. The Licensee argues that he established that his refusal to submit to a blood test was not knowing and conscious. Because the record demonstrates otherwise, we affirm.
By official notice dated December 21, 2011, the Department notified the Licensee that his operating privilege would be suspended for one year effective January 25, 2012 for his refusal to submit to chemical testing on November 5, 2011. The Licensee appealed the suspension, and the trial court held a de novo hearing, at which the Commonwealth and the Licensee presented the following evidence.
Officer Justin M. Judge of the Lower Merion Township Police Department testified that on November 5, 2011, he pulled over a blue BMW driven by the Licensee after observing the vehicle travelling at an average speed of 54 miles an hour in the area where the posted speed limit was 25 miles an hour. Upon approaching the vehicle, Officer Judge detected a strong odor of alcohol upon the Licensee's breath and noticed that his eyes were bloodshot. The Licensee admitted to Officer Judge that he had been drinking wine and beer. After the Licensee failed pre-exit and field sobriety tests, Officer Judge placed him under arrest for driving under the influence of alcohol and took him to Lankenau Hospital for a blood test. After his arrest, the Licensee became "verbally noncompliant" using profanity and ranting against Officer Judge. Notes of Testimony (N.T.) at 14; Reproduced Record (R.R.) at 25a.
After arriving at the hospital, Officer Judge gave the Licensee the implied consent and O'Connell warnings by reading him Form DL-26 (Exhibit C-1, Item No. 2; R.R. at 7a) verbatim. The Licensee was specifically warned that if he refused to submit to a blood test, his operating privilege would be suspended for at least 12 months, and that he had no right to speak with an attorney or anyone else before deciding whether to submit to a test. The Licensee signed Form DL-26, acknowledging that he received the warnings. Officer Judge then asked him to submit to a blood test. The Licensee replied, "you're not sticking me with anything." Id. at 10; R.R. at 21a. He also asked several times to speak to an attorney and his wife. Officer Judge again read him Form DL-26 and asked him if he was going to submit to a blood test. He said "no" and stated that "the license suspension was inconsequential because he was a wealthy man and could afford a driver if necessary." Id. at 12-13; R.R. at 23a-24a. On cross-examination, Officer Judge testified that he did not specifically recall if he told the Licensee at some point that he would conduct a blood test. Id. at 15; R.R. at 26a. When asked if he checked with other officers at the scene if they had "a blood kit," Officer Judge replied that "[i]t's possible." Id. at 19; R.R. at 30a. Officer Judge did not remember if he again asked the other officers on the way to the hospital if they had a blood kit.
Dep't of Transp., Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.3d 873 (1989).
The Licensee testified that he heard Officer Judge asking for a blood kit from the other officers and that he understood that Officer Judge would administer a blood test. The Licensee further testified that he was taken to the hospital's small room where only Officer Judge and another officer were present and that he stated to Officer Judge in that room, "you are not going to stick me." Id. at 24; R.R. at 35a. When asked if Officer Judge indicated at any time that he would administer a blood test, the Licensee replied: "Yes. He told me [to] lie down, I'm going to give you a blood test." Id. The Licensee testified that he did not intend to allow Officer Judge, who was not qualified hospital personnel, to administer a blood test. The Licensee also presented an Affidavit of Probable Cause prepared by another officer (Exhibit D-1), which stated that the Licensee "adamantly refused the test, stat[ing] '[y]ou're not sticking me with anything.'"
The trial court denied the Licensee's appeal and reinstated the suspension, concluding that the Department met its burden of establishing a prima facie case of suspension and that the Licensee failed to establish that his refusal was not knowing and conscious. The Licensee's appeal to this Court followed.
To sustain a license suspension under Section 1547(b) of the Vehicle Code, the Department must establish that the licensee (1) was placed under arrest for driving under the influence of alcohol or controlled substance; (2) was asked to submit to chemical testing; (3) refused to do so; and (4) was specifically warned that a refusal would result in a license suspension. Yourick v. Dep't of Transp., Bureau of Driver Licensing, 965 A.2d 341, 344 (Pa. Cmwlth. 2009). Anything less than an unqualified, unequivocal assent to submit to chemical testing constitutes a refusal. Dep't of Transp. v. Renwick, 543 Pa. 122, 131, 669 A.2d 934, 939 (1996).
Once the Department has met its burden, the licensee must establish that his or her refusal was not knowing and conscious or that he or she was physically incapable of taking a test. The determination of whether the licensee was able to make a knowing and conscious refusal is a factual determination to be made by the trial court. Barbour v. Dep't of Transp., Bureau of Driver Licensing, 557 Pa. 189, 193, 732 A.2d 1157, 1160 (1999); Kollar v. Dep't of Transp., Bureau of Driver Licensing, 7 A.3d 336, 340 (Pa. Cmwlth. 2010).
In this appeal, our review of the trial court's order is limited to determining whether the trial court's factual findings are supported by competent evidence. Sitoski v. Dep't of Transp., Bureau of Driver Licensing, 11 A.3d 12, 17 n.5 (Pa. Cmwlth. 2010). The party who has prevailed before the trial court, the Department in this matter, is entitled to the benefit of most favorable inferences to be drawn from the evidence. Dep't of Transp., Bureau of Driver Licensing v. Malizio, 618 A.2d 1091, 1092 (Pa. Cmwlth. 1992). If there is sufficient evidence in the record to support the trial court's findings, this Court must affirm the trial court's decision. Zaleski v. Dep't of Transp., Bureau of Driver Licensing, 22 A.3d 1085, 1089 (Pa. Cmwlth. 2011).
On appeal, the Licensee challenges only the trial court's conclusion that he failed to establish that his refusal to submit to a blood test was not knowing and conscious. The Licensee argues that his refusal cannot be considered to be knowing and conscious because Officer Judge's actions of asking for a blood kit from the other officers and asking him to submit to a blood test in the small hospital room in the presence of only Officer Judge and another officer led him to believe that a blood test would be administered by Officer Judge, not by qualified hospital personnel.
In a license suspension appeal, the trial court is the ultimate fact-finder and resolves questions of credibility and conflicts in the evidence. Dep't of Transp., Bureau of Driver Licensing v. Wilhelm, 626 A.2d 660, 662 (Pa. Cmwlth. 1993). The trial court found not credible the Licensee's "self-serving" testimony that he refused to submit to a blood test because he subjectively believed that Officer Judge would administer the test. Trial Court's Opinion at 4. He assumed that Officer Judge would administer the test, admittedly without asking at any time if Officer Judge would be the one administering a blood test or if hospital personnel would come to the room to administer the blood test. N.T. at 27; R.R. at 38a. As the trial court stated, it was "unreasonable for the [Licensee] to have believed unqualified, non-medical personnel would administer a blood test in a hospital room." Trial Court's Opinion at 3. It is well established that a licensee's self-serving testimony regarding his or her subjective belief is insufficient to establish that a refusal to submit to chemical testing was not knowing and conscious. Dep't of Transp., Bureau of Driver Licensing v. Scott, 546 Pa. 241, 255, 684 A.2d 539, 546 (1996); Ostermeyer v. Dep't of Transp., Bureau of Driver Licensing, 703 A.2d 1075, 1077 (Pa. Cmwlth. 1997).
At the hearing, the Licensee's counsel stated: "Maybe [Officer Judge] ... would [never] have brought [the Licensee] to the hospital if he found a blood kit, I don't know." N.T, at 30; R.R. at 41a. The trial court then questioned, "why would someone be taken to a hospital for a blood test if the hospital personnel weren't going to be involved in the blood test?" Id. at 31; R.R. at 42a. The court further questioned, "Lankenau Hospital doesn't allow people to perform medical procedures on their own in the hospital, do they?" Id. at 35; R.R. at 46a. The Licensee's counsel replied, "I don't know what the hospital would have allowed." Id. --------
Because the record supports the trial court's conclusion that the Licensee failed to meet his burden of establishing that his refusal was not knowing and conscious, the court's order denying his statutory appeal is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 21st day of November, 2013, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge