Opinion
No. 177 C.D. 2013
07-07-2014
Kevin Johnson v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge (P) OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
The Commonwealth of Pennsylvania, Department of Transportation (DOT), Bureau of Driver Licensing (Bureau), appeals from the order of the Court of Common Pleas of Delaware County sustaining the statutory appeal of Kevin Johnson (Johnson) from a one-year suspension of his operating privilege imposed by the Bureau for his refusal to submit to a chemical alcohol test pursuant to Section 1547(b)(1) of the Vehicle Code, as amended, 75 Pa. C.S. § 1547(b)(1). After review, we reverse.
Section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1), commonly known as the Implied Consent Law, provides in pertinent part:
If any person placed under arrest for a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the test shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.
On May 3, 2011, Officer Patrick T. Reynolds of the Upper Providence Township Police Department observed a red Lexus "traveling at a high rate of speed" in the southbound lanes of Route 1 in Media. Reproduced Record (R.R.) at 27a. Officer Reynolds also observed that while operating the vehicle, the driver turned on the left signal indicator but then executed a right turn maneuver on three occasions. Officer Reynolds then pulled the vehicle over, and upon approach, he observed that the driver, Johnson, had glassy, bloodshot eyes, an odor of alcohol, and slurred speech. Officer Reynolds asked Johnson to exit his vehicle to perform field sobriety tests. He observed that Johnson's gait was "staggered" and that Johnson had to use the car to balance himself. Id. at 28a. Officer Reynolds concluded that Johnson had failed the field sobriety tests. Johnson was also unable to complete a portable breathalyzer test. Officer Reynolds placed Johnson under arrest for suspicion of driving under the influence and then read him the implied consent warnings from a DL-26 form. Officer Reynolds then asked Johnson to submit to a blood test, but Johnson refused, whereupon he was taken to the Media Police Station for "processing purposes." Id. at 30a. At the police station, Officer Reynolds placed the DL-26 form in front of Johnson, who then signed it. According to Officer Reynolds, at no point in time did Johnson agree to undergo a blood test and he deemed Johnson's conduct a refusal.
By notice dated May 27, 2011, the Bureau informed Johnson that his operating privilege would be suspended for one year pursuant to 75 Pa. C.S. § 1547(b)(1), for refusing to submit to chemical testing. Johnson appealed the suspension, and a de novo hearing was held before the trial court on July 17, 2012. The trial court found: "While at the scene, [Officer Reynolds] read the Appellant the implied consent warnings from a DL-26 form and asked him to consent to a blood test. The Appellant although an attorney but having no familiarity with the law involving DUI Stop Procedures, initially refused to submit to a test." Trial Court's Opinion at 2-3. The trial court went on to find:
However, within a short period of time thereafter, upon being transported to the Media Police Department barracks, he requested that a blood test be performed but Officer Reynolds refused to transport him to the hospital to have the test conducted.Id. at 4-5.
Thus the evidence established that the Appellant submitted to all tests required of him at the scene and ultimately provided an unqualified, unequivocal consent to a blood test. If the Appellant had been transported to the hospital and a blood test performed as requested, the purpose of the Implied Consent Law would have been achieved. Accordingly, under the totality of the circumstances we find and conclude that the Department failed to satisfy the requirement of showing that the Appellant refused to submit to chemical testing and we therefore sustain his appeal.
On appeal, the Bureau argues that the trial court erred when it concluded that Johnson did not refuse chemical testing, where it found that although Johnson initially refused to submit to testing after being read the implied consent warnings at the scene of his arrest by Officer Reynolds, he subsequently agreed to submit to testing at the police station. The Bureau, citing Department of Transportation, Bureau of Traffic Safety v. Wroblewski, 442 A.2d 407, 408-409 (Pa. Cmwlth. 1982), argues that Johnson's initial refusal to submit to a chemical test at the scene of his arrest after the implied consent warnings were read to him by Officer Reynolds was not vitiated by his subsequent consent and request to take the test at the police station. The Bureau further argues that once the trial court finds that the police officer provided the licensee with the implied consent warnings, the trial court can no longer excuse the licensee's refusal to submit to chemical testing based upon any subjective confusion the licensee may have; [citing Dep't of Transp., Bureau of Driver Licensing v. Scott, 684 A.2d 539, 546 (Pa. 1996); Yourick v. Dep't of Transp., Bureau of Driver Licensing, 965 A.2d 341, 345 (Pa. Cmwlth. 2009) (en banc)]. The Bureau contends that once Officer Reynolds read the implied consent warnings to Johnson, any confusion Johnson may have had was cured as a matter of law and Officer Reynolds was not required to ensure that Johnson understood the warnings nor was he required to spend time and effort answering Johnson's questions; [citing Scott; Martinovic v. Dep't of Transp., Bureau of Driver Licensing, 881 A.2d 30 (Pa. Cmwlth. 2005)].
Johnson argues that he had questions for Officer Reynolds about his performance on the field sobriety tests and that he was confused because Officer Reynolds told him he was not allowed to make a phone call, when "every individual is entitled to make a phone call when they are placed under arrest." Johnson's Brief at 10. Johnson contends that because of the "disagreement about the telephone call issue, [he] did not have the opportunity to clearly understand his obligation to consent to a blood-alcohol test." Johnson's Brief at 10. Johnson further avers that "there is substantial evidence that Officer Reynolds is not credible" and that he "lied about a number of things . . . ." Id. at 29. For example, Johnson wanted Officer Reynolds to explain to him what happened on the field sobriety tests, because the way Johnson saw it, he had done "very well" on the tests and wanted Officer Reynolds to "explain to [him] how [he] flunked." R.R. at 130a. Johnson further explained that he told Officer Reynolds that he wanted him "to mark it in your record that I passed the field sobriety tests, particularly the alphabet test, did not mess up the order or whatever he claims in the alphabet test." Id. Finally, while Johnson denied that he verbally refused to take the test, he admitted on cross-examination that when he was asked at the site to give a blood test, he "did not [agree] - - I had questions for the officer and he didn't give me the opportunity." Id. at 131a.
When a licensee appeals a license suspension under Section 1547(b)(1) of the Implied Consent Law, it is DOT's burden to establish that the driver was arrested for driving under the influence of alcohol; that he was asked to submit to chemical testing for blood alcohol; that the driver refused to submit to chemical testing; and that the driver was specifically warned that a refusal would result in the suspension of his or her driver's license. Martinovic v. Dep't of Transp., Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005). Once DOT meets that burden, the licensee 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, 691 A.2d 450, 453 (Pa. 1997). The issue of whether a motorist's conduct constitutes a refusal to submit to chemical testing is a question of law to be determined based on the facts found by the trial court. Hudson v. Dep't of Transp., Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa. Cmwlth. 2003). In addressing this issue, our courts have consistently held that anything less than an unqualified, unequivocal assent to submit to testing constitutes a refusal. Dep't of Transp., Bureau of Driver Licensing v. Renwick, 669 A.2d 934, 939 (Pa. 1996).
Here, the trial court found that Johnson was placed under arrest for driving under the influence of alcohol; was asked to submit to a chemical test; was read the implied consent warnings on the DL-26 form by Officer Reynolds at the scene of the arrest; and that he initially refused. See Trial Court's Opinion at 2-3. The issue arises with the trial court's conclusion that Johnson's initial refusal after being read the implied consent warnings was vitiated by his subsequent assent to submit to testing at the police station and his good-faith attempts to complete the field sobriety tests and the breathalyzer test at the scene. Thus, under the "totality of the circumstances," the trial court concluded that Johnson "ultimately provided an unqualified, unequivocal consent to a blood test." Id. at 5. We disagree.
Even where the licensee made a good-faith attempt to comply with the breathalyzer test but failed to supply a sufficient breath sample, we have held that such conduct was a refusal to take the test. Pappas v. Dep't of Transp., Bureau of Driver Licensing, 669 A.2d 504, 508 (Pa. Cmwlth. 1996). Here, the trial court appears to have excused Johnson's initial refusal to submit to a chemical test in part because although Johnson was an "experienced" attorney, he was not familiar with DUI law and its procedures. However, "confusion over issues other than Miranda rights does not negate a refusal based upon that confusion" because "[i]t is impractical to require officers to explain every conceivable point which may confuse a motorist . . . ." McNulty v. Dep't of Transp., Bureau of Driver Licensing, 629 A.2d 278, 282 (Pa. Cmwlth. 1993). Indeed, our 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, 684 A.2d 539, 543 (Pa. 1996).
In short, neither Johnson's continued questioning regarding his performance on the field sobriety tests nor his good faith in submitting to those tests negate his prior refusal to submit to chemical testing after he was read the implied consent warnings. See also Yourick v. Dep't of Transp., Bureau of Driver Licensing, 965 A.2d 341, 345 (Pa. Cmwlth. 2009) (that a particular motorist hearing the warning may question its interpretation is not sufficient basis for stating her refusal was not knowing or conscious); Keenan v. Dep't of Transp., Bureau of Driver Licensing, 657 A2d 134, 136 (Pa. Cmwlth. 1995) (licensee's questions concerning the effects of the chemical tests on his commercial driver's license did not evince the type of confusion which would negate a refusal to submit to chemical testing); Flickinger v. Dep't of Transp., 547 A.2d 476, 477 (Pa. Cmwlth. 1988) (by equivocating or questioning the need for a second test, licensee's actions fell short of the unqualified, unequivocal consent required by Section 1547 of the Code). Moreover, Officer Reynolds was under no obligation to answer Johnson's questions regarding his performance on the field sobriety tests as a prerequisite for Johnson's consenting to submit to a chemical test. An officer's sole duty is to inform a licensee of the consequences of refusing to submit to chemical testing, which duty is satisfied once the officer reads the DL-26 warnings. Broadbelt v. Dep't of Transp., Bureau of Driver Licensing, 903 A.2d 636, 641 (Pa. Cmwlth. 2006). The officer has no duty to make sure the licensee understands the warnings, nor is the officer required to spend effort either cajoling the licensee or time waiting for the licensee to change his mind. Id.
Once the trial court found that Officer Reynolds had read the implied consent warnings to Johnson and that he refused, the burden then shifted to Johnson to prove that his refusal was not knowing or conscious, which he failed to do. Because we conclude that Johnson's conduct constituted a refusal under Section 1547 of the Implied Consent Law, we reverse the order of the trial court and reinstate the Bureau's one-year suspension of Johnson's operating privilege.,
The Bureau filed a Motion to Strike a transcript of the proceedings from Johnson's criminal trial purportedly held on November 13, 2012, attached to his Amended Brief to this court. The Bureau asserts correctly that documents not contained in the certified record may not be considered by this court on appeal. Dep't of Transp. v. McCafferty, 758 A.2d 1155, 1159 n.6 (Pa. 2000). Accordingly, the transcript of the proceedings attached to Johnson's Amended Brief is stricken.
Johnson contends that the trial court abused its discretion in precluding him from examining Officer Reynolds regarding police reports involving drivers other than Johnson who had been arrested for DUI by Officer Reynolds. Decisions on the conduct of the hearing and the admissibility of or relevance of the evidence are within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Ball Park's Main Course, Inc. v. Pa. Liquor Control Bd., 641 A.2d 713, 717 (Pa. Cmwlth. 1994). Even where a trial court errs in excluding certain evidence, we will not reverse where the error is determined to be harmless. Wright v. Dep't of Transp., 596 A.2d 1241, 1247 (Pa. Cmwlth. 1991). Here, although the trial court did not permit Johnson's attorney to cross-examine Officer Reynolds about the other police reports, the court did admit them into evidence. R.R. at 91a-93a. Second, Johnson's attorney was allowed to cross-examine Officer Reynolds extensively about the police report he prepared in conjunction with his arrest of Johnson for DUI. Id. at 36a-42a; 46a-77a. Third, the trial court granted Johnson's post-trial motion to submit additional evidence of four more police reports. Id. at 198a-219a; 231a. Finally, Johnson's attorney asserted that those police reports on their face impeached Officer Reynolds' testimony. Id. 93a-94a. Here, Johnson's attorney clearly raised the credibility issue with the trial court and was permitted to submit into evidence documents purporting to support his contention for the trial court's consideration. Under these circumstances, we conclude that the trial court did not abuse its discretion and, therefore, we reject Johnson's argument to the contrary. --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of July, 2014, the order of the Court of Common Pleas of Delaware County dated January 17, 2013, which sustained the appeal of Kevin Johnson from the suspension of his operating privilege, is hereby REVERSED. Appellant's Motion to Strike is GRANTED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge