Opinion
No. 1694 C.D. 2013
04-24-2014
Taras Lytvynskyy, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Taras Lytvynskyy (Licensee) appeals from the August 20, 2013 order of the Court of Common Pleas of Allegheny County dismissing his appeal from the one-year suspension of his operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (Department) in accordance with section 1547(b)(1)(i) of the Vehicle Code (Code). We affirm.
Section 1547(b)(1)(i) of the Code provides that if a person placed under arrest for driving under the influence is requested to submit to chemical testing and refuses to do so, the Department shall suspend the person's operating privilege for one year. 75 Pa.C.S §1547(b)(1)(i).
By notice dated December 26, 2012, the Department informed Licensee that his driving privilege would be suspended for a period of one year, effective February 6, 2013, based on his refusal of chemical testing on December 8, 2012, in violation of section 1547 of the Code. Licensee appealed to the trial court, which held a de novo hearing on August 15, 2013.
The testimony before the trial court may be summarized as follows. On December 8, 2012, City of Pittsburgh Police Officers John Suzensky and Glenn Aldridge were at the scene of an accident in which another motorist had knocked over a telephone pole. While clearing debris and gathering information, Officer Suzensky observed Licensee attempting to back his Toyota Camry over the downed pole; he ran to the vehicle, yelled at Licensee to stop, and pounded on the side of Licensee's car. Officer Suzensky motioned to Licensee to roll down his window and when Licensee did so, Officer Suzensky smelled a strong odor of alcohol emanating from the vehicle. Officer Suzensky asked Licensee if he had been drinking and Licensee said yes. He asked Licensee to step out of the car, and Licensee complied. Officer Suzensky observed that Licensee's eyes were red and his speech was slurred and he requested Licensee to perform field sobriety tests. After concluding that Licensee failed three sobriety tests, Officer Suzensky placed him under arrest for suspicion of driving under the influence (DUI) and transported him to the Special Deployment Division (SDD) station. (Reproduced Record (R.R.) at 5a-12a.) According to Officer Suzensky, Licensee never said that he did not understand a particular question or instruction. (R.R. at 19a.)
Officer Aldridge met Officer Suzensky and Licensee at the SDD station, where Licensee was placed in a cell for twenty minutes. Officer Aldridge then asked Licensee if he would submit to a breath test; Licensee said no and stated that he wanted to speak to a lawyer. Officer Aldridge read the "O'Connell warnings" on the DL-26 form to Licensee verbatim, and he repeated the warning that Licensee did not have the right to an attorney. Licensee did not inform Officer Aldridge that he had problems understanding spoken English. When Licensee responded again that he wanted to speak with a lawyer, Officer Aldridge deemed his conduct a refusal and returned Licensee to his cell. (R.R. at 25a-29a; 45a.)
Form DL-26 contains the chemical testing warnings required by section 1547 of the Code pursuant to our Supreme Court's decision in Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). These warnings inform a motorist that he is under arrest; that he is being requested to submit to a chemical test; that he will lose his operating privileges and potentially face stricter criminal penalties if the request is refused; and that there is no right to remain silent or speak to an attorney.
Licensee testified that he was born in Ukraine and has lived in the United States for five years. Licensee stated that he speaks Ukrainian and Russian and some basic English and that he did not need English language skills until the year before when he began working at a hotel. Licensee testified that he had been taking classes at a community college to improve his English, and said that his English had improved since the date of the accident. Licensee also testified that he applied to enlist in the United States military but failed the test because of his poor English and was told to return to college for more English classes. Licensee said he returned to college in January of 2013 to repeat a class in English composition and received a grade of "D" the second time. (R.R. at 33a-35a.)
The record reflects that a friend of Licensee's, who was not identified, was present to interpret. Licensee's counsel acknowledged that Licensee understands some English but stated that for purposes of the hearing "it is better if she just did some interpretation." (R.R. at 3a.)
Licensee testified that if he had understood that his license would be suspended as a consequence of his refusal to submit to chemical testing he would not have refused the test. He stated that he did not understand that he had no right to speak with an attorney and that he probably asked twice to speak to a lawyer. Licensee said that he can read basic words in English but not entire texts. (R.R. at 37a-38a.) Licensee testified that he told one of the officers that he had difficulty understanding English. Licensee also testified that he had to take his driver's license test five or six times before he passed the test in 2008; he said he studied with help from a tutor and almost memorized the questions. (R.R. at 39a-44a.)
The trial court accepted the testimony of Officers Suzensky and Aldridge as credible and specifically noted their testimony that Licensee responded appropriately to their instructions, which were given in English; requested in English to speak with a lawyer; and did not tell Officer Aldridge that he did not understand what Officer Aldridge was saying. The trial court concluded that the case was controlled by this Court's decision in Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30 (Pa. Cmwlth. 2005), and dismissed Licensee's appeal.
On appeal to this Court, Licensee contends that the trial court erroneously relied on Martinovic to deny his appeal because he does not understand the English language and was unable to make a knowing and conscious decision to refuse chemical testing.
Our scope of review is limited to determining whether necessary findings of the trial court are supported by substantial evidence and whether the trial court committed an error of law or abused its discretion. Martinovic.
To sustain a suspension of operating privileges under section 1547 of the Code, the Department must establish that the licensee: (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension. Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336 (Pa. Cmwlth. 2010). Once the Department meets this burden, the licensee must then establish that the refusal was not knowing or conscious or that the licensee was physically unable to take the test. Id.; Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504 (Pa. Cmwlth. 1996). Whether a motorist's conduct constitutes a refusal to submit to chemical testing is a question of law. Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa. Cmwlth. 2003). In addressing this issue, our courts have consistently held that "anything substantially less than an unqualified, unequivocal assent" to submit to testing constitutes a refusal to do so. Department of Transportation v. Renwick, 543 Pa. 122, 131, 669 A.2d 934, 938 (1996); Lanthier v. Department of Transportation, Bureau of Driver Licensing, 22 A.3d 346, 348 (Pa. Cmwlth. 2011); Miele v. Commonwealth, 461 A.2d 359, 360 (Pa. Cmwlth. 1983).
In Martinovic, the trial court sustained a licensee's appeal from a one-year suspension of his license after concluding that the licensee met his burden of proving that he did not speak or understand English well enough to have understood the O'Connell warnings. On appeal, we held that the police have no duty to make certain that a licensee understands the implied consent warnings:
Although the trial court found that Licensee did not speak English sufficiently to have possibly understood the O'Connell warnings, whether Licensee understands the O'Connell warnings or not is inconsequential. An officer's sole duty is to inform motorists of the implied consent warnings; once they have done so, they have satisfied their obligation. Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539
(1996). Additionally, and not without significance in this case, officers have no duty to make sure that licensees understand the O'Connell warnings or the consequences of refusing a chemical test. . . .Martinovic, 881 A.2d at 35 (footnotes omitted).
Licensee interprets Martinovic as holding that a complete inability to understand the English language does not prevent a finding that the licensee made a knowing and conscious refusal of chemical testing and complains that the decision is confusing, unduly harsh, and inconsistent with the principles underlying the Supreme Court's decision in Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). However, we decline Licensee's request to reconsider and overturn our decision in Martinovic. Contrary to Licensee's assertions, Martinovic summarizes the well-settled law, which requires proof that a licensee was adequately informed of the consequences of refusing chemical testing, but not proof that he or she understood the warnings provided, in order to support a license suspension. O'Connell.
In O'Connell, the Supreme Court held that police have a duty to clarify the extent of a licensee's right to counsel when asking a licensee who has been arrested for DUI to submit to chemical testing.
Licensee also argues that the trial court erred in finding that he responded appropriately to the officers' instructions, which were given in English and asserts that the evidence is insufficient to demonstrate that he understood English well enough to make a knowing and conscious refusal of the breath test. As previously noted, however, the burden was on Licensee to prove that his refusal was not knowing and conscious; the Department was not required to prove otherwise. Kollar. In addition, whether a licensee is incapable of making a knowing and conscious refusal is a question of fact for the fact-finder. Dailey v. Department of Transportation, Bureau of Driver Licensing, 722 A.2d 772 (Pa. Cmwlth. 1999). In this case, the trial court based its decision on the officers' credible testimony, and, as finder of fact, the trial court is the sole arbiter of questions concerning the credibility and weight of the evidence. Stancavage v. Department of Transportation, Bureau of Driver Licensing, 986 A.2d 895 (Pa. Cmwlth. 2009).
Although Licensee also discusses Missouri v. McNeely, 133 S. Ct. 1552 (2013) (the taking of blood by law enforcement is a search protected by the Fourth Amendment), and Padilla v. Kentucky, 589 U.S. 356 (2010) (involving criminal conviction and the penalty of deportation), he acknowledges that those cases are not on point and do not compel a different result in this matter.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 24th day of April, 2014, the order of the Court of Common Pleas of Allegheny County, dated August 20, 2013, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge