Opinion
No. 1173 C.D. 2012
01-22-2013
Ramon Antonio Godoy-Romero v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
The Department of Transportation, Bureau of Driver Licensing (Department), appeals the order of the Court of Common Pleas of Berks County (trial court) sustaining the appeal of Ramon Antonio Godoy-Romero (Licensee) from a one-year license suspension the Department issued pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. §1547(b), based on Licensee's refusal to submit to chemical testing. We affirm.
Section 1547(b) of the Vehicle Code, commonly referred to as the "Implied Consent Law," authorizes the suspension of a licensee's operating privilege where the licensee is placed under arrest for driving under the influence of alcohol and knowingly refuses a police officer's request to submit to chemical testing. 75 Pa. C.S. §1547(b). To sustain a license suspension under Section 1547(b), the Department must establish the following:
• The licensee was arrested for driving under the influence based on reasonable grounds the he was operating a vehicle while under the influence of alcohol or a controlled substance;
• The licensee was asked to submit to a chemical test;
• The licensee refused to submit to the requested chemical test; and
• The licensee was warned that a refusal would result in the suspension of his driver's license.
By official notice, the Department notified Licensee that his operating privilege was being suspended for one year as a consequence of his reported refusal to submit to chemical testing on January 1, 2012, as mandated by Section 1547(b) of the Vehicle Code. Licensee timely appealed the notice to the trial court.
At the hearing before the trial court, the Department called Officer Aaron Andre (Officer Andre) of the Reading Police Department who testified that he was on patrol on the day in question when he observed Licensee operate his vehicle through a stop sign. (Reproduced Record (R.R.) at 15a.) After Officer Andre pulled up behind Licensee's vehicle, he observed the vehicle speed up and hit an embankment. Officer Andre approached the vehicle and observed Licensee in the front seat. After getting Licensee out of the car, Licensee was unable to stand. Licensee had slurred speech, his clothes were in disarray, and he was very uncooperative and very angry. Officer Andre placed Licensee into custody and put him in the back of the police vehicle. When he returned to Licensee's vehicle to get Licensee's registration out of the glove compartment, Officer Andre observed open Coors Light cans in the driver's area and two unopened cans in the vehicle. Officer Andre returned to the police vehicle and attempted to conduct field sobriety tests, but Licensee was uncooperative and continued to fight so Licensee was placed under arrest, put back in the police vehicle and transported to St. Joe's Hospital for testing of Licensee's blood. (Id.) Licensee gave Officer Andre his name and date of birth, but Officer Andre obtained his address through his computer.
At the hospital, Licensee was placed in a chair and Officer Andre read the DL-26 Implied Consent Chemical Testing Warnings form to Licensee in English. (R.R. at 15a.) Licensee told Officer Andre that he didn't understand English so Officer Andre obtained an interpreter through the hospital. A hospital employee brought telephones into the room so that Officer Andre was on one phone and Licensee was on another while they were speaking to the interpreter. Officer Andre instructed the interpreter that he would read each of the paragraphs on the DL-26 form and he asked the interpreter to interpret the paragraphs as he read them to Licensee. Accordingly, Officer Andre read each of the four paragraphs on the DL-26 form and the interpreter then spoke in Spanish to Licensee. Because Officer Andre does not speak Spanish, he did not know whether the interpreter read everything on the DL-26 form word for word. After the warnings had been given, the interpreter stated in English, "No blood work. Just ticket." (Id. at 18a.) Officer Andre recorded that response as a refusal. The Department did not present the interpreter as a witness and Licensee did not testify at the hearing.
The Department offered the DL-26 Implied Consent Chemical Testing Warnings form as evidence at the hearing. (R.R. at 14a.)
Usually, there's someone in the hospital who can speak Spanish or a police officer that speaks Spanish, but Officer Andre was not able to get a Spanish-speaking officer that night. (R.R. at 18a.)
On May 21, 2012, the trial court issued the instant order sustaining Licensee's appeal of the Department's Section 1547(b) license suspension. The trial court explained that the Department had failed to sustain it initial burden of proving that Licensee refused to submit to testing of his blood because "[t]his Court did not find the testimony of Officer Andre credible regarding the determinations by him that the Licensee refused to give blood. Rather, the Officer based his determination of the refusal on statements made by the interpreter who was not available for cross examination." (R.R. at 68a-69a.) The Department then filed the instant appeal of the trial court's order.
The trial court further determined that any purported refusal on Licensee's part was neither conscious nor knowing, stating:
This Court finds that because the arresting Officer did not speak Spanish, he could not testify as to what was said between the interpreter and the [Licensee]. Coupled with the fact that the interpreter was not available for cross examination puts doubt in this Court's mind as to whether the refusal was conscious and knowing. Although there is no duty for an officer to enlist the services of an interpreter, in this case the Officer did enlist the services of an interpreter and based his determinations of the refusal on the statements of the interpreter. Accordingly the interpreter should have been available for cross examination and this Court respectfully requests that its decision in this matter be affirmed on appeal.(R.R. at 69a.)
In this appeal, the Department argues that the trial court erred in holding that Licensee did not refuse chemical testing because Officer Andre read all of the DL-26 Implied Consent Chemical Testing Warnings form and Licensee neither submitted to a blood test nor offered evidence that he was incapable of making a knowing and conscious decision to refuse chemical testing. The Department asserts that the trial court conflated the parties' burdens of proof and erred in determining that the Department had failed to sustain its burden in the first instance of demonstrating that Licensee refused to submit to a chemical test of his blood. However, the Department ignores the trial court's critical determination that the only evidence that the Department introduced to support its burden of proving that Licensee refused to submit to chemical testing was not credible.
Our scope of review is limited to determining whether the trial court committed an error of law or abused its discretion, and whether necessary findings of fact are supported by substantial evidence. Reinhart, 954 A.2d at 765 n.3.
In this case, the trial court determined that the Department had failed to sustain its initial burden of proving that Licensee refused to submit to chemical testing of his blood because the only evidence presented by the Department to support such a finding, Officer Andre's testimony that Licensee told the interpreter, "No blood work. Just ticket.", was specifically found by the trial court to be not credible. (R.R. at 68a-69a.) Because the trial court rejected as not credible the Department's only evidence to sustain its initial burden of proving that Licensee refused to submit to chemical testing of his blood, the burden never shifted to Licensee to demonstrate that his refusal to submit to such testing was not knowing and conscious, and the trial court did not err in sustaining Licensee's appeal of the one-year suspension under Section 1547(b).
In a license suspension appeal, determinations as to the credibility of witnesses and the weight assigned to the evidence are solely within the province of the trial court as fact finder. Reinhart, 954 A.2d at 765. As fact finder, the trial court may accept or reject the testimony of any witness in whole or in part. Id. Additionally, we must view the evidence in a light most favorable to the party that prevailed before the trial court. Id. "Thus, we must determine the issue of whether a licensee refused chemical testing 'under the facts found by the trial court [and] not under the testimony [the Department] prefers.'" Id. at 765-66 (citation omitted). --------
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 22nd day of January, 2013, the order of the Court of Common Pleas of Berks County dated May 21, 2012, at No. 2012-02858, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Reinhart v. Department of Transportation, Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008). Whether a licensee has refused a request for chemical testing is a question of law based upon the facts as found by the trial court. Purcell v. Department of Transportation, Bureau of Driver Licensing, 689 A.2d 1002, 1005 (Pa. Cmwlth. 1997). Once the Department meets this burden, the licensee has the burden to prove that (1) he was physically incapable of completing the breath test or (2) his refusal was not knowing and conscious. Department of Transportation, Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 446, 691 A.2d 450, 453 (1997).