Celento v. Commonwealth

250 A.3d 549 (Table)

David J. CELENTO, Appellant v. Commonwealth of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING

No. 55 C.D. 2020

Commonwealth Court of Pennsylvania.

Submitted: November 6, 2020

Filed: February 16, 2021

MEMORANDUM OPINION BY JUDGE CROMPTON

David J. Celento (Licensee) appeals from an order of the Huntingdon County Court of Common Pleas (Trial Court) that denied his statutory appeal from the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing's (PennDOT) one-year suspension of his operating privilege under Section 1547(b)(1) of the Vehicle Code, commonly known as the Implied Consent Law. ¹ PennDOT suspended his license for refusing chemical testing. Licensee argues that his repeated requests to read the warning prior to testing did not constitute a refusal under the law. He also claims he was confused by the arresting officer who read the warning such that his refusal was not knowing. Discerning no error below, we affirm.

I. Background

On October 28, 2018, Licensee was stopped for a malfunctioning brake light by two officers from the Huntingdon Police Department, Officer Border (Officer) and Corporal Funk (Corporal) (collectively, Police). During the stop, Officer detected the odor of alcohol and asked Licensee if he had been drinking. Licensee admitted he consumed two mixed drinks earlier. Officer then subjected Licensee to field sobriety tests before asking him to take a chemical test for suspicion of driving under the influence (DUI). Licensee opted for a blood test, which is performed in a hospital setting, instead of the portable breath test.

Prior to his transport to the hospital, Licensee asked to take a pill (identified as a nicotine pill), while clutching the pill bottle. When Officer directed Licensee to drop the bottle, he refused, and Police had to pry the bottle from his hand. Licensee remained combative and initially resisted getting into the patrol car.

After arriving at the hospital, Officer began reading the implied consent DL-26A form to Licensee, but realized that he was reading the form for breath testing. ² See Notes of Testimony (N.T.), 8/13/19, at 6; Reproduced Record (R.R.) at 6a. ³ Officer asked the registration nurse at the hospital who obtained the paperwork for the blood test (Nurse) to shred the other form, to which Licensee vigorously objected as "shredding evidence." N.T. at 7; R.R. at 7a. Officer then read the correct form, DL-26B related to blood testing (Form), to Licensee. Licensee requested to read the Form for himself, and after additional requests and opportunities to read the Form, over a 20- to 30-minute period, ultimately, Licensee did not consent to blood testing.

PennDOT notified Licensee of the one-year suspension of his operating privilege based on his refusal to submit to chemical testing after his arrest for DUI. Licensee appealed the suspension to the Trial Court.

The Trial Court held a hearing on August 13, 2019, at which PennDOT presented Officer and Corporal as witnesses. Licensee, who was not represented by counsel at the time, presented the testimony of Nurse who observed the exchange between Police and Licensee when they brought Licensee in for the blood test. Licensee also testified on his own behalf.

Officer confirmed the circumstances of Licensee's DUI arrest and the subsequent events related to chemical testing. Officer testified that he recited the Implied Consent warnings on the Form to Licensee verbatim. Officer emphasized that Licensee repeatedly delayed the blood test by requesting to read the Form, and then created additional excuses for not being able to read the Form when Officer gave it to him. However, Officer conceded that Licensee claimed he had dyslexia and used reading glasses. But even after Officer retrieved Licensee's reading glasses, Licensee continued to delay and did not consent to testing though he had the Form in his hands for three to five minutes. N.T. at 9; R.R. at 9a. Officer noted that Police informed Licensee that his response was deemed a refusal. N.T. at 10; R.R. at 10a.

Corporal, who was present for Officer's interactions with Licensee, corroborated Officer's testimony. He underscored the repeated opportunities offered to Licensee to consent and to read the Form. He testified that after "a very reasonable amount of time ... we started to escort him to the door. ... He kept saying I'll take the test after I read the [F]orm. I said you had enough time to read the [F]orm. This is your final chance. Are you going to take the test or not? ... then two seconds after he said yes ... after I read the [F]orm again." N.T. at 33; R.R. at 33a.

Nurse, who was questioned by Licensee, testified about the events she witnessed at the hospital when Officer requested the paperwork for a blood test. She corroborated that Licensee was belligerent when Officer asked for his consent to blood testing. She recalled the exchange between Police and Licensee lasted "approximately 30 minutes." N.T. at 58; R.R. at 58a. She described Licensee as "clearly intoxicated," yelling and spitting at her. Id. Nurse acknowledged that she shredded a different non-hospital form at Officer's request, but she was not familiar with that form.

Licensee testified in narrative form on his own behalf. He testified that Officer caused him to become confused and led him to believe the Form had to be signed before he could submit to testing. He claims he agreed to submit to a blood test after he finished reading the Form. Licensee testified that Officer told him he had to sign the Form before blood testing.

The day after the hearing, the Trial Court issued an order dismissing Licensee's appeal and upholding the suspension, citing our decision in McKenna v. Department of Transportation, Bureau of Driver Licensing , 72 A.3d 294 (Pa. Cmwlth. 2013) (regarding unequivocal consent to testing). Licensee timely appealed.

The Trial Court directed Licensee to submit a statement of errors complained of on appeal under Pa.R.A.P. 1925(b). Subsequently, pursuant to Pa.R.A.P. 1925(a), the Trial Court issued an opinion explaining the rationale for its decision and addressing Licensee's assignments of error. Primarily, the Trial Court reasoned that the circumstances evinced Licensee's refusal by conduct when he did not submit to testing within a reasonable time of Officer's request. The Trial Court found that Licensee did not offer any evidence tending to show that his refusal was not knowing or conscious. Trial Ct., Slip Op., 11/12/19, at 10.

II. Discussion

On appeal, ⁴ Licensee asserts the Trial Court erred in not finding that Officer caused him to believe he had a right to read and sign the Form before submitting to blood testing. Based on the predicate of Officer-caused confusion, Licensee also argues that the Trial Court erred as a matter of law in disregarding case law holding that when an officer causes confusion, it is incumbent upon the officer to remedy that confusion. He claims his refusal was not knowing under the mistaken assumption created by Officer. In the alternative, Licensee seeks a remand for a hearing so he may submit evidence to show Officer caused confusion about reading and signing the Form.

A. Legal Standard

To sustain a suspension of a licensee's operating privilege under the Implied Consent Law, PennDOT must establish the licensee: (1) was arrested for DUI by an officer with reasonable grounds to believe the licensee was operating a vehicle while under the influence of alcohol or a controlled substance; (2) was requested to submit to chemical testing; (3) refused to submit to testing; and (4) was warned by the officer that a refusal would result in suspension of his driver's license. See Jackson v. Dep't of Transp., Bureau of Driver Licensing , 191 A.3d 931, 932 (Pa. Cmwlth. 2018).

Once PennDOT meets its burden, the burden shifts to the licensee to prove that his refusal was not knowing or conscious, or that he was physically incapable of performing the test. Dep't of Transp., Bureau of Driver Licensing v. Ingram , 648 A.2d 285 (Pa. 1994) ; see Sitoski v. Dep't of Transp., Bureau of Driver Licensing , 11 A.3d 12 (Pa. Cmwlth. 2010) ; Harris v. Dep't of Transp., Bureau of Driver Licensing , 969 A.2d 30 (Pa. Cmwlth. 2009) ( en banc ). Here, the controversy concerns whether Licensee refused to submit to chemical testing.

"The question of whether a licensee refuses to submit to a chemical test is a legal one, based on the facts found by the trial court." Nardone v. Dep't of Transp., Bureau of Driver Licensing , 130 A.3d 738, 748 (Pa. 2015). The question of whether a licensee refuses to consent to a chemical test turns on whether the licensee's "overall conduct demonstrates an unwillingness to assent to an officer's request for chemical testing." Id. at 749. This Court consistently holds that a refusal to submit to a chemical test "is anything substantially less than an unqualified, unequivocal assent." Lanthier v. Dep't of Transp., Bureau of Driver Licensing , 22 A.3d 346, 348 (Pa. Cmwlth. 2011) (quoting Dep't of Transp., Bureau of Traffic Safety v. Mumma , 468 A.2d 891, 892 (Pa. Cmwlth. 1983) ). "A licensee's refusal need not be expressed in words; a licensee's conduct may constitute a refusal to submit to testing." Bomba v. Dep't of Transp., Bureau of Driver Licensing , 28 A.3d 946, 949 (Pa. Cmwlth. 2011) ; see also Park v. Dep't of Transp., Bureau of Driver Licensing , 178 A.3d 274 (Pa. Cmwlth. 2018).

B. Conduct as Refusal

We examine whether the Trial Court erred in determining that Licensee refused chemical testing based on his conduct.

In McKenna , this Court reaffirmed "that the established law provides that anything less than a licensee's unqualified, unequivocal assent to submit to chemical testing is a refusal." 72 A.3d at 299 (emphasis added). Significantly, a licensee's conduct may constitute a refusal to submit to testing. Id. Such conduct may include asking...