Opinion
No. 254 C.D. 2014
10-06-2014
Jerry D. McFarland, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Jerry D. McFarland (Licensee) appeals pro se from the November 19, 2013 order of the Northumberland County Court of Common Pleas (trial court), which denied Licensee's statutory appeal from an 18-month suspension of his operating privilege. The Department of Transportation, Bureau of Driver Licensing, (Department) imposed the suspension in accordance with section 1547(b)(1)(ii) of the Vehicle Code, 75 Pa.C.S. §1547(b)(1)(ii), as a consequence of Licensee's reported refusal to submit to chemical testing. We affirm.
Commonly known at the Implied Consent Law, section 1547 of the Code provides that "a motorist is deemed to have given his consent to one or more chemical tests . . . where a police officer has reasonable cause to arrest a motorist for driving under the influence." Department of Transportation, Bureau of Driver Licensing v. Rohrer, 561 A.2d 1278, 1280 (Pa. Cmwlth. 1989). Section 1547(b)(1)(ii) provides that if any person placed under arrest for driving under the influence (DUI) is requested to submit to a chemical test and refuses to do so, the Department shall suspend the person's operating privilege for a period of 18 months if the person has previously been sentenced for DUI. 75 Pa.C.S. §1547(b)(1)(ii). The record reflects that Licensee previously refused chemical testing in 1991, (Ex. C-1), and Licensee raises no issues concerning the length of his suspension.
By notice dated August 26, 2013, the Department informed Licensee that his driving privilege would be suspended for a period of 18 months, effective September 30, 2013, based on his refusal to submit to chemical testing on August 4, 2013, in violation of section 1547 of the Code. Licensee appealed to the trial court, which held a de novo hearing on November 19, 2013.
City of Shamokin Police Officer Raymond J. Siko II testified to the following relevant facts. On the night in question, Officer Siko was working the midnight rotation. While on routine patrol, he passed Licensee's car, which was partially rotated and blocking the westbound lane of travel on Walnut Street. A male was seated inside the car and two women were standing in the roadway next to the passenger side of the vehicle. Officer Siko turned around and stopped to investigate, activating the emergency lights on the patrol car. At the scene, Officer Siko ordered the two women away from the car and called for backup; he approached Licensee and detected a strong odor of alcoholic beverage coming from the vehicle and from Licensee. Officer Siko asked Licensee to exit the car in order to determine if he was impaired. (Notes of Testimony (N.T.) at 6-9.)
The women were later taken into custody. (Notes of Testimony at 8.)
Officer Siko noticed that Licensee's eyes were glassy and he was slow to respond to questions. Licensee refused to take a field sobriety test. Based on his observations, Officer Siko arrested Licensee for suspicion of driving under the influence of alcohol or a controlled substance (DUI) and placed Licensee in the back of his patrol vehicle. (N.T. at 10.)
Licensee admitted to Officer Siko that he had been drinking beer since approximately 9:30 that evening. Officer Siko asked Licensee to submit to a blood test; he explained to Licensee that a hospital was only two miles away and offered to take Licensee back to his home after testing. Officer Siko said that Licensee first agreed to submit to a blood test but changed his mind several times and finally said, "'I'm not going for blood. You ain't taking nothing. Just tow my car.'" (N.T. at 26.) Officer Siko read the DL-26 form to Licensee, verbatim. After reading the implied consent warnings, Officer Siko asked Licensee if he understood them and asked Licensee again if he would submit to a blood test. Licensee again refused to submit to chemical testing, indicated that he understood the implied consent warnings, and signed the form. Officer Siko did not remember whether Licensee was in the backseat of the police cruiser or standing outside it when he signed the form, but Officer Siko was certain that Licensee signed the form at the car before going to the police station. (N.T. at 11-14, 20-26.)
The DL-26 Form, (Ex. C-2), contains the implied consent warnings required by section 1547 of the Vehicle Code, pursuant to our Supreme Court's decision in Department of Transportation, Bureau of Traffic Safety v. O'Connell, 555 A.2d 873 (Pa. 1989). The form advises police officers to read the following warnings in their entirety to a motorist:
1. You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code.(Ex. C-2.) The form also instructs the officer that the motorist must be given an opportunity to take the test after the above warnings are read to him.
2. I am requesting that you submit to a chemical test of [blood] (blood, breath or urine. Officer chooses the chemical test).
3. If you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months. In addition, if you refuse to submit to the chemical test, and you are convicted of violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, then, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code. These are the same penalties that would be imposed if you were convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000.00.
4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to chemical testing, you will have refused the test, resulting in the suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code.
Licensee testified that Officer Siko never asked him to take a blood test. He further stated that Officer Siko did not read the DL-26 form to him at the car, but instead, presented it to him in the interrogation room at the police station. Licensee said that Officer Siko brought the document into the interrogation room, set it on the table, said, "Read this and sign there," and left the room. Licensee testified that he read the form and understood it to mean that if he refused to take a blood test "there would be consequences for my driver's license." (N.T. at 29.) Licensee added that when he signed the form, he was indicating that he understood the consequences of refusing a blood test, not that he was refusing a blood test. According to Licensee, when Officer Siko came back into the room and said, "Let's go," Licensee thought he would be taken to the hospital, but instead he was taken home. (N.T. at 29-31.)
Licensee said that he saw a camera in the interrogation room and stated that it would confirm his version of the events. On recross-examination, Officer Siko stated he was unsure whether a videotape of the interview room for the night in question was available. At that point, the trial court announced that it found Officer Siko's testimony credible and, based on that credibility determination, denied Licensee's appeal. (N.T. at 36-37.) Licensee again raised the question of whether a videotape existed, and the trial court directed that Police Chief Edward Griffiths be called and sworn in. (N.T. at 37-38.) Via telephone, Chief Griffiths testified that the video camera was not turned on while Licensee was in the room; he explained that the camera had to be turned on manually and usually was activated for more significant matters. (N.T. at 39-40.) The trial court again stated that Licensee's appeal was denied based on the trial court's credibility determinations, (N.T. at 41), and issued an order that same day.
On appeal to this Court, Licensee argues that the trial court "erred in its findings by relying on the credibility of the officer who testified . . . [i]nstead of basing [its] ruling on pertinent evidence with the exclusion of unsubstantiated hearsay." (Licensee's brief at 8.) Licensee further asserts that: Officer Siko refused to take him to the hospital for a blood draw; Licensee agreed to a blood draw after he was given the DL-26 form to read in the interrogation room; and the ambiguous language of the DL-26 form caused Licensee to make the wrong decision.
Our scope of review is limited to determining whether the trial court's necessary findings are supported by substantial evidence and whether the trial court committed an error of law or abused its discretion. Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30 (Pa. Cmwlth. 2005).
In order to sustain an 18-month suspension of a licensee's operating privilege under section 1547 of the Code, the Department must establish that: (1) the licensee was arrested for DUI by a police officer who had reasonable grounds to believe that the licensee 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; (4) the licensee was warned that refusal would result in a license suspension; and (5) the licensee was subject to one of the statutory provisions that enhances the suspension from 12 months to 18 months. Sitoski v. Department of Transportation, Bureau of Driver Licensing , 11 A.3d 12, 21-22 (Pa. Cmwlth. 2010); Broadbelt v. Department of Transportation, Bureau of Driver Licensing , 903 A.2d 636, 640 (Pa. Cmwlth. 2006).
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. Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336 (Pa. Cmwlth. 2010); 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, 669 A.2d 934, 938 (Pa. 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).
Initially, we clarify that credible testimony is evidence and may itself be sufficient to support a trial court's findings. See Postgate v. Department of Transportation, Bureau of Driver Licensing, 781 A.2d 276, 280 (Pa. Cmwlth. 2001) (holding that, because questions of credibility are for the trial court to resolve, we may not reverse the trial court's order on the ground that it erroneously accepted and relied upon the testimony of police officers). Additionally, the law is "settled beyond question" that determinations concerning the credibility of witnesses and the weight assigned to their testimony are solely within the province of the trial court as fact-finder. Id. Licensee's assertions that Officer Siko gave him the DL-26 form in the interrogation room and refused to take him to the hospital and that Licensee agreed to a blood test are based on Licensee's preferred version of the facts, which is contrary to the facts found by the trial court. We are bound by the trial court's findings. Id.
Because Officer Siko's credible testimony satisfied the Department's initial burden of proof, the burden shifted to Licensee to demonstrate that his refusal was not knowing or conscious. Kollar. While Licensee argued that he did not understand his signing the DL-26 form to constitute a refusal of chemical testing, we have previously held that police have no duty to make certain that a licensee understands the implied consent warnings. Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30 (Pa. Cmwlth. 2005). Thus, Licensee's alleged misunderstanding is of no consequence. Id. at 35.
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.
Licensee's remaining argument is that the language of Form DL-26 is ambiguous. Specifically, Licensee contends that the statement "If you refuse to submit to the chemical test your operating privilege will be suspended," is misleading because it does not clearly indicate that signing the form is equivalent to refusing to submit to chemical testing.
The purpose of Form DL-26 is to document that the officer has satisfied the implied consent warnings as required under O'Connell. On the form, above the warnings, is a "Note to Officer," stating that "[t]he refusal of the operator to sign this form is not a refusal to submit to the chemical test." After setting forth the four-part O'Connell warnings, Form DL-26 provides a space for the officer to certify by his signature that he or she read the complete warnings to the motorist and gave the motorist an opportunity to submit to chemical testing. Below that is a space for the motorist to sign acknowledging that he or she has been advised of the warnings printed above. We conclude that the language at issue is not misleading. Moreover, rather than establishing an unqualified, unequivocal assent to the request for chemical testing, the record reflects that Licensee explicitly refused to submit to chemical testing both before and after Officer Siko read him the implied consent warnings from Form DL-26. (N.T. at 14, 25.)
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 6th day of October, 2014, the order of the Northumberland County Court of Common Pleas, dated November 19, 2013, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
Martinovic, 881 A.2d at 35 (footnotes omitted).