Opinion
No. 433 C.D. 2014
11-07-2014
Frank Chirillo, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Frank Chirillo (Licensee) appeals from the February 25, 2014, order of the Court of Common Pleas of Montgomery County (trial court), dismissing Licensee's appeal from the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing's (DOT) suspension of his operating privilege for 12 months pursuant to section 1547(b)(1)(i) of the Vehicle Code (Code), 75 Pa. C.S. §1547(b)(1)(i) for his refusal to submit to chemical testing. We affirm.
Section 1547(b)(1)(i) of the Vehicle Code reads as follows:
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of section 3802 [relating to driving under the influence of alcohol or a controlled substance] 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.
On August 2, 2013, DOT notified Licensee that his operating privilege would be suspended for refusing to submit to a chemical blood test on July 23, 2013, in violation of section 1547(b)(1)(i) of the Code. On August 22, 2013, Licensee appealed to the trial court, which held a de novo hearing on February 24, 2014.
At the hearing, Officer Aaron Barkmeyer of the Upper Merion Township Police Department testified that on July 23, 2013, he encountered a vehicle stopped in the right-hand lane of South Gulph Road. Officer Barkmeyer approached the vehicle and observed Licensee sitting in the driver's seat. Licensee appeared to be sleeping while slumped over the steering wheel; the vehicle was still running and in the drive gear. Officer Barkmeyer woke Licensee and advised him to shift his vehicle into park, which took Licensee several attempts to accomplish. Once the vehicle was in park, Officer Barkmeyer asked Licensee to turn off the vehicle, which he did. Officer Barkmeyer then spoke with Licensee and detected a strong odor of alcohol coming from his breath. The officer also noticed that Licensee's eyes were glassy and bloodshot and that his speech was slurred. (N.T., 2/24/14, at 4-5.)
Officer Barkmeyer testified that he then asked Licensee to step out of the vehicle to perform field-sobriety tests. (Id. at 5.) After Licensee failed three tests, Officer Barkmeyer arrested Licensee on a suspicion of driving under the influence of alcohol and placed him in the rear of his police vehicle. (Id. at 7.) Officer Barkmeyer testified that he then read verbatim to Licensee the DL-26 chemical blood test warning form and asked Licensee to take a chemical blood test. (Id.) Officer Barkmeyer testified that Licensee refused, stating that he was not willing to submit to the chemical blood test. (Id.) The officer then drove Licensee to the police station, where Licensee read the DL-26 form himself. (Id. at 16.) Licensee then signed the form and was released into his wife's custody. (Id. at 7.)
Licensee testified that he did not refuse to take a chemical blood test. He testified that he could not hear Officer Barkmeyer reading the DL-26 form because the police vehicle's door was open and several passing cars were causing noise. (Id. at 31.)
On February 25, 2014, the trial court issued an order dismissing Licensee's appeal. (Trial Ct. Order, 2/25/14, at 1.) In its April 21, 2014, opinion, the trial court found that Officer Barkmeyer had reasonable grounds to believe that Licensee was operating a vehicle under the influence of alcohol. (Trial Ct. Op., 4/21/14, at 4.) The trial court also credited Officer Barkmeyer's testimony that he read verbatim the DL-26 form to Licensee, asked Licensee to take a chemical blood test, and that Licensee refused to submit to the test. (Id.) The trial court discredited Licensee's testimony that Licensee could not hear Officer Barkmeyer read the DL-26 form. (Id.)
On March 6, 2014, Licensee filed a motion for reconsideration, which the trial court denied on March 14, 2014. On March 18, 2014, Licensee appealed to this court. The same day, by agreement of the parties, the trial issued an order granting supersedeas pending the outcome of this appeal.
Our scope of review is limited to determining whether the trial court's decision is supported by substantial evidence, whether there has been an error of law, or whether the decision indicates a manifest abuse of discretion. Stahr v. Department of Transportation, Bureau of Driver Licensing, 969 A.2d 37, 39 n.2 (Pa. Cmwlth. 2009). --------
Licensee argues he was not warned that his refusal to submit to chemical testing would result in a suspension of his license and, therefore, his subsequent refusal was not knowing or conscious. We disagree.
When DOT seeks to suspend a licensee's operating privilege for refusing to submit to a chemical blood test, it must establish that:
(1) the licensee was arrested for drunken driving by a police officer who had reasonable grounds to believe that the motorist was operating a motor vehicle while under the influence of alcohol; (2) the licensee was requested to submit to a chemical test; (3) the licensee refused to submit; and (4) the licensee was warned that refusal would result in a license suspension.Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa. Cmwlth. 2006). To prove that the licensee refused the test, DOT must show that police offered the licensee "a meaningful opportunity" to submit to the chemical blood test. Id. The Pennsylvania Supreme Court has held that "anything less than an unqualified, unequivocal assent constitutes a refusal." Department of Transportation v. Renwick, 669 A.2d 934, 939 (Pa. 1996). A police officer satisfies his duty to warn a licensee by showing that he read the licensee the DL-26 form; police have no duty to make sure the licensee comprehends the conveyed warning or the consequences of refusing chemical testing. Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 35 (Pa. Cmwlth. 2005).
Here, DOT met its burden. The trial court credited Officer Barkmeyer's testimony that he asked Licensee to submit to a chemical blood test and then read him the DL-26 form verbatim. (Trial Ct. Op., 4/21/14, at 4.) Licensee also admitted that the officer read him the form. (N.T., 2/24/14, at 35.) Paragraph three of the form clearly warns a licensee that "if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months." (Id., Ex. 2.) By reading the form verbatim, Officer Barkmeyer sufficiently warned Licensee. The trial court credited Officer Barkmeyer's testimony that he leaned his head inside the police vehicle so that Licensee could hear him read the form and that Licensee then twice refused to submit to the test. (Trial Ct. Op., 4/21/14, at 4.) The trial court correctly determined that Licensee refused chemical testing after he was sufficiently warned of the consequences.
Because DOT proved a refusal, the burden shifted to the licensee to "establish that [his] refusal was not knowing or conscious or that [he] physically was unable to take the test." Berman v. Department of Transportation, Bureau of Driver Licensing, 842 A.2d 1025, 1027 n.3 (Pa. Cmwlth. 2004). However, the trial court did not credit Licensee's testimony that he could not hear Officer Barkmeyer read the DL-26 form in the police vehicle. Because the trial court alone has discretion to determine witness credibility, we may not reexamine conflicts in the testimony. Reinhart v. Department of Transportation, Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008). Moreover, Licensee does not argue that he tried to inform Officer Barkmeyer that he could not hear the officer reading the form. A licensee's failure to indicate that he did not understand the warning supports the trial court's determination that the licensee had meaningful opportunity to refuse. Broadbelt, 903 A.2d at 641.
Licensee also argues that the trial court incorrectly relied on Licensee's later reading and signing of the form at the police station as a basis for finding his refusal knowing and conscious. Although the trial court noted Licensee's later signing of the DL-26 form, it indicated that its determination was based on Licensee's failure to offer credible evidence rebutting the presumption that his refusal in the police vehicle was knowing or conscious. As such, the trial court did not err in determining that Licensee failed to show that his refusal was not knowing or conscious.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 7th day of November, 2014, we hereby affirm the February 25, 2014, order of the Court of Common Pleas of Montgomery County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge