Park v. Commonwealth

178 A.3d 274

Nicole PARK, Appellant

v.COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING

No. 522 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued December 7, 2017

Decided January 19, 2018

Suzanne S. Smith, York, for appellant.

Terrance M. Edwards, Senior Counsel, Harrisburg, for appellee.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE SIMPSON

Nicole Park (Licensee) appeals from an order of the Court of Common Pleas of York County¹ (trial court) that denied her license suspension appeal and reinstated the Department of Transportation, Bureau of Driver Licensing's (DOT) one-year suspension of her operating privilege under 75 Pa. C.S. § 1547(b)(1)(i) for refusing to submit to a chemical test of her blood after being arrested for driving under the influence of alcohol (DUI), a violation of 75 Pa. C.S. § 3802. Licensee presents four issues for our review, including whether the trial court erred or abused its discretion in denying Licensee's appeal where she could not make a knowing and conscious refusal because of the arresting officer's confusing and changing instructions. For the reasons that follow, we affirm.

I. Background

On September 10, 2016, while on routine patrol on southbound Interstate 83 in Conewago Township, York County, Pennsylvania State Trooper Raymond R. Rutter (Arresting Officer) observed a Ford Escape in front of him weaving in and out of the right lane. The vehicle touched the fog line six times. Arresting Officer clocked the vehicle at 76 miles per hour (mph) in a 65 mph zone. Arresting Officer followed the vehicle and initiated a traffic stop. After a quarter of a mile, the vehicle stopped.

Arresting Officer then made contact with the driver, who identified herself as Licensee. Arresting Officer noticed Licensee had bloodshot and glassy eyes and that her speech was slurred. The Officer also noticed a strong odor of alcoholic beverage emanating from the vehicle. Arresting Officer asked Licensee to exit the vehicle and perform field sobriety tests. Licensee complied with the officer's requests, including his request for a preliminary or pre-arrest breath test (PBT). Licensee had trouble with her footing while exiting the vehicle and performing the tests. Licensee's PBT indicated a blood alcohol content of .129. Arresting Officer believed the rating would have been higher if Licensee would have provided a full breath. The Officer then arrested Licensee for DUI and placed her in his patrol vehicle.

Once they were both in the vehicle, Arresting Officer advised Licensee that she would be asked to submit to a chemical test of her blood. Licensee advised Arresting Officer that she was going to refuse the test. Arresting Officer then read DOT's Form DL–26 to Licensee, which stated that a refusal to submit to chemical testing will result in a one-year suspension of her driving privilege. After reading Licensee the DL–26 warnings, Arresting Officer then asked Licensee to submit to the chemical test. Licensee again responded no.

Arresting Officer then transported Licensee to the booking center in York. On the way to the booking center, Arresting Officer twice asked Licensee if she realized she was refusing testing. Licensee responded in the affirmative both times. Arresting Officer then asked Licensee a third time if she was going to refuse testing. Licensee replied: "Yes, I am." Tr. Ct. H'rg, Notes of Testimony (N.T.), 3/29/17, at 10–11. Arresting Officer then released Licensee to the officials at the booking center.

At the appeal hearing, Arresting Officer testified on cross-examination that Licensee repeatedly expressed concerns about how being arrested for DUI and submitting to chemical testing would affect her job as a teacher. See N.T. at 7, 15. Arresting Officer further testified he could not recall whether he told Licensee that she would have time to consider whether to consent to the blood test on the way to the booking center. Id. at 15–16. Nonetheless, Arresting Officer recalled that Licensee advised him that she would not submit to chemical testing and that he then called the booking center. Id.

The trial court also played Arresting Officer's dash-cam video. After watching the video, Arresting Officer confirmed he told Licensee she would have time to think about taking the blood test on the way to the booking center. N.T. at 21–22. Arresting Officer further testified he was the only one to sign the DL–26 Form; Licensee did not sign it. See Ex. D–1 (attached to Appellee's brief). To that end, Licensee produced a second DL–26 Form also designated to be used for blood tests. See Ex. D–2, DL–26B (attached to Appellee's brief). On both forms, Arresting Officer signed the affidavit indicating Licensee was arrested for DUI and given the implied consent warnings and that she refused the blood test.

On re-direct examination, Arresting Officer confirmed that he again read Licensee the DL–26 warnings on the way to the booking center, and that Licensee never agreed to take the test. N.T. at 28. The vehicle audio recorder confirmed the conversation. Tr. Ct., Slip Op., 7/7/17, at 4.

In addition, Arresting Officer admitted that he turned his microphone off for 35 to 40 seconds during a phone conversation with his superior officer regarding the new law governing blood test refusals following the U.S. Supreme Court's decision in Birchfield v. North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), which held that a state cannot criminally penalize a motorist for refusing to submit to a warrantless request for a blood test after being arrested for DUI. Arresting Officer testified that he inquired as to what steps he needed to take when a refusal occurred. N.T. at 26–27. Arresting Officer testified he did not believe the conversation with his supervisor was of evidentiary value. N.T. at 27.

Licensee also testified at the hearing. She stated she had never been in the backseat of a patrol car or in handcuffs before, and she became very anxious. N.T. at 33. Licensee asked Arresting Officer what was going to happen to her. Id. He replied that they would go to the booking center, she would take a blood test and then go to jail. Id. Licensee then asked if she would have to take a blood test and Arresting Officer responded: "You can refuse if you want to." Id. at 34. Although Arresting Officer shortly thereafter requested that she submit to a blood test, Licensee testified: "I had already established in my brain that that [sic] was an option to not have to give the blood test." Id.

Licensee further testified that she lost her composure, "kind of tuned out" and "kind of slumped in the back in the car." Id. Licensee could not remember being read the DL–26 Form or refusing the blood test. Id. She further testified that she would not have refused the blood test had she known the punitive consequences. Id. at 34–35. Licensee did recall Arresting Officer saying "Excellent" when she gave her answer. Id. at 35. Licensee interpreted "Excellent" as meaning that she was compliant with the officer's requests. Id.

Nonetheless, on cross-examination, Licensee admitted that the dash-cam video (Ex. D–3) showed Arresting Officer reading her the DL–26 warnings. Id. at 35–36. However, Licensee testified she lost her composure during the car ride and "wasn't really listening." Id. at 36–37. However, when asked if she ever told Arresting Officer that she wanted to take the blood test, Licensee answered: "No." Id. at 37–38.

Licensee's attorney then argued that the court should consider Licensee's confused state of mind resulting in part from Arresting Officer's statement that she had the option of refusing the blood test. N.T. at 39–41. Licensee thus believed she could refuse the blood test without repercussions. Licensee also pointed out that she never signed the DL–26 Form, indicating that it was never offered her. Id.

However, the trial court, in summarizing, observed that Arresting Officer's dash-cam video and audio made it clear that Arresting Officer read the DL–26 Form to Licensee and that she refused to consent to chemical testing. N.T. at 43. Further, although Arresting Officer used the word "Excellent," it amounted to a comment without any meaning. Rather, the trial court reasoned, the operative words here were the "no" spoken by Licensee and her admission in court that she never said "yes" to Arresting Officer's request that she consent to chemical testing. Id. at 43–44. Consequently, the trial court dismissed Licensee's appeal. N.T. at 44. Licensee appeals.²

II. Discussion

A. Knowing and Conscious Refusal

1. Argument

Licensee first contends the trial court erred or abused its discretion in denying Licensee's appeal where she could not make a knowing and conscious refusal of chemical testing. Licensee asserts that based on Arresting Officer's confusing and changing instructions, she could not make a knowing and conscious refusal of chemical testing. Her argument is as follows. To sustain a suspension of a licensee's operating privilege under Pennsylvania's Implied Consent law, 75 Pa. C.S. § 1547(a) and (b), DOT must establish the licensee: (1) was arrested for DUI by a police 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 chemical testing; and, (4) was warned by the officer that her license will be suspended if she refused to submit to chemical testing. Regula v. Dep't of Transp., Bureau of Driver Licensing, 146 A.3d 836 (Pa. Cmwlth. 2016). Once DOT satisfies this burden, the burden shifts to the licensee to prove she was physically incapable of performing the test or that her refusal was not knowing and conscious. Sitoski v. Dep't of Transp., Bureau of Driver Licensing, 11 A.3d 12 (Pa. Cmwlth. 2010).

Here, Licensee contends that although she may...