Opinion
No. 1952 C.D. 2014
07-28-2015
Joseph Schneider, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Joseph A. Schneider (Licensee) appeals an order of the Court of Common Pleas of Montgomery County (trial court) denying Licensee's statutory appeal of the suspension of his operating privileges by the Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) for the reason that Licensee refused to submit to mandatory chemical testing pursuant to the Implied Consent Law. Licensee contends that the trial court erred in holding that the arresting officers were not required to reread the implied consent warning when they asked Licensee to submit to a blood test because they had already read the warning when he refused a breath test. Discerning no error, we affirm the order of the trial court.
Licensee's legal name appears to be "Josef;" however, in the Notice of Appeal to this Court, Licensee's name appears in the caption as "Joseph."
Section 1547 of the Vehicle Code, commonly referred to as the Implied Consent Law, provides, in pertinent part, that if any person placed under arrest for driving under the influence of alcohol "is requested to submit to chemical testing and refuses to do so, . . . the department shall suspend the operating privilege of the person . . . for a period of 12 months." 75 Pa. C.S. §1547(b)(1)(i).
On January 15, 2014, PennDOT notified Licensee that his operating privileges were being suspended for a period of one year because he refused to submit to chemical testing when he was arrested for DUI on November 24, 2013. Licensee timely appealed to the trial court, which held a de novo hearing on September 15, 2014. PennDOT offered the testimony of Officers John Iushewitz and Christopher Harvey of the Lower Merion Township Police Department.
Officer Iushewitz testified that he was conducting a routine patrol on November 24, 2014, when he saw a white Honda sedan execute a lane change without activating its turn signal. Officer Iushewitz activated his video recorder and followed the vehicle, which was operated by Licensee. Officer Iushewitz observed the vehicle strike a curb, make a wide right-hand turn and then make a quick left turn into a private driveway. Officer Iushewitz approached the vehicle and immediately noticed a strong odor of alcohol as he began speaking with Licensee. Licensee's eyes were bloodshot and glassy, his speech was slurred, and he was slow to answer questions. Licensee admitted that he had consumed alcohol in Philadelphia prior to driving home. Officer Iushewitz administered field sobriety tests, which Licensee failed, and requested that Licensee submit to a preliminary breath test. Licensee refused. Officer Iushewitz placed Licensee under arrest for driving under the influence.
Upon arrival at the police station, Officer Iushewitz escorted Licensee to the prisoner intake area. Officer Iushewitz read Form DL-26 verbatim to Licensee and asked Licensee whether he would submit to a breathalyzer test. Licensee read the Form DL-26 himself several times, signed it, and agreed to take the breathalyzer test. Following a 20-minute observation period, Officer Harvey instructed Licensee how to perform the test. The machine was properly calibrated and had been tested for accuracy that evening.
Form DL-26 contains the warnings an officer must read to an individual suspected of driving under the influence before conducting a chemical test on that individual. See Commonwealth v. McCoy, 975 A.2d 586 (Pa. 2009); Reproduced Record at 75a (R.R. ___).
Licensee twice attempted to provide a sufficient breath sample but was unable to do so because each time he removed his mouth from the mouthpiece to speak to the officers. Officer Harvey testified that he did not usually give individuals a second attempt to complete the test. After Licensee's two failed attempts, Officer Iushewitz asked Licensee if he would submit to a chemical test of his blood. Officer Iushewsitz did not again read Form DL-26 to Licensee. Licensee responded that he had already given a breath sample, and asked why he would submit to a blood test. Officer Iushewitz repeated his request, at which point Licensee "kind of shrugged his shoulders. He shook his head no." Notes of Testimony, September 15, 2014, at 13 (N.T. ___); Reproduced Record at 15a (R.R. ___). Officer Iushewitz advised Licensee that "this is going to be counted as a refusal because of the two inadequate breath samples and because of your refusal for blood." N.T. 13-14; R.R. 15a-16a.
On October 10, 2014, the trial court denied Licensee's appeal and reinstated the suspension. The trial court rejected Licensee's assertion that the officers' request for a blood test constituted a waiver of Licensee's refusals to submit to the breath tests. The trial court noted that Licensee "refused all three chemical tests. The refusal of the third test is sufficient to sustain the suspension of [Licensee's] license." Trial Court op. at 6. The trial court further held that the officers were under no obligation to recite the implied consent warnings a second time when they asked Licensee to submit to a blood test. Licensee now appeals to this Court.
In his appeal, Licensee raises one argument for our consideration. Licensee contends that the trial court erred in holding that the officers were not required to provide a new implied consent warning when they asked Licensee to submit to a blood test after he failed to provide a sufficient breath sample.
On appeal, this Court's standard of review is to determine whether the factual findings of the trial court are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion. Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1205 (Pa. 1999). Whether reasonable grounds exist is a question of law reviewable by this Court. Id. at 1207. Determinations on the credibility of witnesses and the weight assigned to their testimony are solely within the discretion of the trial court; this Court is bound by those findings. McGee v. Department of Transportation, Bureau of Driver Licensing, 803 A.2d 255, 259 (Pa. Cmwlth. 2002).
In order to sustain a suspension of operating privileges, PennDOT must establish that the licensee:
(1) was arrested 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) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that refusal would result in a license suspension.Bomba v. Department of Transportation, Bureau of Driver Licensing, 28 A.3d 946, 949 (Pa. Cmwlth. 2011). When a licensee fails to "exert a total conscious effort, and thereby fails to supply a sufficient breath sample, such is tantamount to a refusal to take the test." Appeal of Budd, 442 A.2d 404, 406 (Pa. Cmwlth. 1982). Even a licensee's good faith attempt to comply with the test constitutes a refusal where the licensee fails to supply a sufficient breath sample. Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504, 508 (Pa. Cmwlth. 1996); Department of Transportation, Bureau of Driver Licensing v. Kilrain, 593 A.2d 932, 935 (Pa. Cmwlth. 1991) ("Anything less than a completed breathalyzer test which registers a blood alcohol reading on the breathalyzer constitutes a refusal.").
Regarding the required implied consent warnings, "[a]n officer's sole duty is to inform motorists of the implied consent warnings; once they have done so, they have satisfied their obligation." Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 35 (Pa. Cmwlth. 2005). Officers do not have an obligation to make sure that licensees understand the warnings or the consequences of refusing to submit to chemical testing. Id. Nor is there a requirement "that the warning be given if the officer again asks the licensee to submit to chemical testing." Trobovic v. Department of Transportation, Bureau of Driver Licensing, 553 A.2d 531, 533 (Pa. Cmwlth. 1989).
Licensee cites Department of Transportation, Bureau of Driver Licensing v. McFarren, 525 A.2d 1185 (Pa. 1987), to support his claim that the officers were required to repeat the implied consent warnings when they asked him to submit to a second type of chemical test, i.e., a blood test. Licensee contends that because the Form DL-26 he signed referred only to a chemical test of his breath, he had "no way of knowing that the same ramifications would apply to a chemical test of blood unless he was warned of such." Licensee's Brief at 13. PennDOT counters that there is no requirement in the Implied Consent Law that a licensee be given multiple warnings.
The Form DL-26 provides, inter alia: "2. I am requesting that you submit to a chemical test of ___ (blood, breath or urine. Officer chooses the chemical test)." R.R. 75a. Officer Iushewitz completed the form by filling in the word "breath." Id. --------
We agree with the trial court that McFarren is inapposite. In McFarren, the licensee was observed driving erratically and running a red light. He was arrested and consented to a breathalyzer test. The licensee provided a sufficient breath sample. The arresting officers requested that the licensee submit to a second breathalyzer test, which the licensee refused. Our Supreme Court ruled that the officers could not require the licensee to submit to additional testing once he successfully completed a breath, urine or blood test. The Court reasoned that permitting the police to require additional tests to "enhance" the evidence in order to guarantee a conviction would constitute an unreasonable search and seizure under the Pennsylvania Constitution. Consequently, the Court held that "[i]f more than one test is requested, the police officer must offer sufficient evidence to establish the 'reasonableness' of such a request." McFarren, 525 A.2d at 1188. The Court continued, however, that "if an individual fails to fully participate in a breathalyzer test, subjecting him to a blood or urine test may be reasonable." Id.
Critical to the holding in McFarren was the licensee's successful completion of a breathalyzer test, which rendered the request for a second test unreasonable. Here, by contrast, Licensee did not provide a sufficient breath sample and then refuse to submit to a blood test. The arresting officers were not seeking to strengthen their case against Licensee but, rather, to establish a case in the first place. McFarren is factually distinguishable.
PennDOT directs our attention to Trobovic, 553 A.2d 531, a case we agree is instructive. There, the licensee failed several field sobriety tests after he was stopped for speeding and driving off the roadway. The arresting officers provided the informed consent warnings and asked the licensee to submit to a blood test. He refused. A few minutes later, the officers again asked the licensee to undergo chemical testing without repeating the warnings. The licensee again refused consent. On appeal, the licensee argued that "each time a request is made to submit to chemical testing the police officer must warn the licensee of the consequences of a refusal." Id. at 533 (emphasis in original). This court disagreed, holding that there is
no requirement that the warning be given if the officer again asks the licensee to submit to chemical testing and we refuse to read any such requirement into the [Implied Consent Law]. The arresting officer may, in his discretion, provide a licensee who has refused chemical testing with a subsequent opportunity to assent. However, he is not then required to provide another warning of the consequences of refusal.Id.
In the present case, Officer Iushewitz read Licensee the Form DL-26 verbatim and Licensee read the document himself several times. Although Licensee is correct that the Form DL-26 referred only to a chemical test of his "breath," that fact is irrelevant. The warnings and the consequences for refusal are the same regardless of the type of test administered. Licensee received the warning he was entitled to under the Implied Consent Law, i.e., that his operating privileges would be suspended for one year if he refused to consent to chemical testing. Thus, the trial court did not err in denying Licensee's appeal.
For these reasons, we affirm the trial court's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 28th day of July, 2015, the order of the Montgomery County Court of Common Pleas dated October 10, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge