Com. Dept. of Transp., Bureau of Driver Licensing v. Ingram

• Decision Date: 13 September 1994
• Citation: 648 A.2d 285,538 Pa. 236
• Parties: COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant v. Douglas John INGRAM, Appellee. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant v. Theodore H. FRAIN, IV, Appellee.
• Court: Pennsylvania Supreme Court

Page 285

648 A.2d 285

538 Pa. 236

COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant v. Douglas John INGRAM, Appellee.

COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant v. Theodore H. FRAIN, IV, Appellee.

Supreme Court of Pennsylvania.

Argued Sept. 21, 1993.

Decided Sept. 13, 1994.

Timothy P. Wile, Asst. Counsel-in-Charge, Dept. of Transp. and Harold H. Cramer, Harrisburg, for appellant at No. 1.

John L. Heaton, Chief Counsel, Harold H. Cramer, Asst. Chief Counsel, and Timothy P. Wile, Asst. Counsel-in-Charge, Dept. of Transp., Harrisburg, for appellant at No. 2.

David L. Lichtenstein and Suzanne M. Swan, Pittsburgh, for appellee at No. 1.

Robert C. Houpt, Paoli, for appellee at No. 2.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION

MONTEMURO, Justice.

The issue raised in these consolidated appeals is whether the police satisfied the warning requirements set out by this Court in Commonwealth, Dept. of Transp., Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989), even though the police failed to explain to a licensee the reason why his constitutional Miranda ¹ rights are inapplicable to chemical testing pursuant to the implied consent provision of the Motor Vehicle Code, 75 Pa.C.S. § 1547(a) (1982). ² We hold that the police need not clarify for the motorist the distinction between criminal proceedings, where the right to counsel applies, and civil proceedings, where it does not; accordingly, we affirm.

In O'Connell, the Pennsylvania Department of Transportation (PennDOT) imposed a one year suspension of O'Connell's motor vehicle operator's license for his refusal to take a breathalyzer test as required by Section 1547(b) of the Motor Vehicle Code, 75 Pa.C.S. § 1547(b). ³ O'Connell was involved in an automobile accident in Montgomery County. Police at the scene of the accident noticed the strong smell of alcohol on O'Connell's breath and conducted a field sobriety test. Upon O'Connell's failure of this test, the officer arrested him for driving under the influence of alcohol. O'Connell was immediately advised of his Miranda rights and taken to the police station where he was again advised of his Miranda rights in written form. Paragraph 6 of the form asked, "Do you want to talk to a lawyer at this time or have a lawyer with you while we ask you questions?" At first O'Connell answered "No", but later he changed his answer to "Yes."

Subsequently, O'Connell was asked to submit to a breathalyzer test. O'Connell refused and claimed that he refused because he had not been allowed to speak with an attorney. The officer testified that O'Connell gave no reason for his refusal, that he was permitted to call his lawyer, and that following this call, O'Connell was willing to submit to the test. The officer would not administer the test, however, because he had been unable to personally observe O'Connell for the preceding thirty-five to forty-five minutes; therefore, a refusal was noted.

A refusal was reported to PennDOT which imposed the mandatory one year license suspension pursuant to 75 Pa.C.S. § 1547(b). O'Connell appealed to the Court of Common Pleas which accepted his testimony as credible, and held that O'Connell's refusal was based upon the mistaken belief that he had the right to speak with an attorney prior to submitting to the breathalyzer test. Therefore, the court held that O'Connell could not have made a knowing refusal because his decision was founded upon an understanding of a right which does not exist at law.

PennDOT appealed to the Commonwealth Court and argued that insufficient evidence existed to support the trial court's determination. The Commonwealth Court agreed with PennDOT and reversed the trial court. Commonwealth, Department of Transportation, Bureau of Traffic Safety v. O'Connell, 99 Pa.Cmwlth. 410, 513 A.2d 1083 (1986). In addition, the Commonwealth Court further defined its prior holdings on chemical testing, and pronounced that the police's duty to inform an arrestee that he does not have the right to speak with an attorney in conjunction with submitting to the breathalyzer test, obtains "only where the arrestee responds to a request that he take the test with an inquiry regarding whether he may consult with someone before making a decision." Id.

We held that there was evidence in the record to support O'Connell's position that he was misled into thinking that he had a right to speak to his attorney before taking the breathalyzer test. Accordingly, we affirmed the trial court's findings. Moreover, we explored O'Connell's contention that the entire controversy resulted from the request to take the breathalyzer test immediately following Miranda questioning. Mr. Justice Papadakos wrote in the majority opinion:

The problem in this case and many similar cases that have arisen, is that these requests to take breathalyzer tests take place as part of the investigation conducted by police in regards to a drunk driving charge which is criminal in nature. The police proceed with the Miranda warnings and at some point (usually when the driver asks to see his lawyer) stop questioning and abruptly change "hats" and ask the driver to submit to the breathalyzer test. If the arrestee hesitates and attempts to exercise his Miranda right by asking for a lawyer or asking to make a phone call, a refusal is recorded.

O'Connell, 521 Pa. at 251, 555 A.2d at 877.

Therefore, we held that because this situation is replete with traps for the untrained arrestee who cannot recognize the differences between civil and criminal investigations, the police must instruct the arrestee who asks to speak with an attorney that his constitutional right to counsel is inapplicable to breathalyzer tests. We placed this burden upon the police because it is their conduct that is the source of the confusion.

We clarified our holding in O'Connell in Commonwealth v. McFadden, 522 Pa. 100, 559 A.2d 924 (1989). In McFadden, the motorist was pulled over after he used his right turn signal to indicate that he was making a left turn. The officer smelled alcohol on McFadden's breath, and as a result, conducted a field sobriety test which McFadden failed. The officer placed him under arrest and read McFadden Miranda warnings. The motorist was then taken to the police station to take a breathalyzer test. Upon arrival at the police station, McFadden was given Miranda warnings in writing. McFadden refused to submit to the breathalyzer test and asked to make a telephone call. The police granted his request; however, after the call, McFadden became belligerent and was placed in a jail cell overnight. A refusal was recorded.

On appeal from his license suspension, McFadden argued that he did not make a knowing and conscious refusal because he was not told that Miranda did not apply to the breathalyzer test. This argument was rejected by both the Court of Common Pleas and the Commonwealth Court. We held that our decision in O'Connell controlled and that the police did not meet the requirements outlined in that case, namely, that upon McFadden's request to make a telephone call the police should have informed him that he did not have the right to confer with someone prior to deciding whether to submit to a breathalyzer test. Id.

We continued to refine our decisions in O'Connell and McFadden in Commonwealth v. Danforth, 530 Pa. 327, 608 A.2d 1044 (1992). In Danforth, the motorist was arrested for driving under the influence of alcohol and advised of his Miranda rights. He was subsequently taken to the police station and asked to submit to a breathalyzer test. Danforth refused. Moreover, he affirmed in writing that he did not wish to waive his Miranda rights, although he did not take affirmative action to execute those rights.

PennDOT suspended Danforth's license and he appealed to the Court of Common Pleas of Allegheny County. That court dismissed the appeal, and the Commonwealth Court affirmed. Danforth argued before this Court that his refusal was not knowing or conscious because the police had failed to inform him that he did not have a right to speak to an attorney in conjunction with the request to submit to chemical testing.

We agreed with Danforth, and held that the Commonwealth Court erred when it required the occurrence of three events to trigger O'Connell warnings: 1) Miranda warnings were read to the motorist; 2) the motorist must show confusion regarding the application of Miranda rights to chemical testing; and 3) the motorist must ask to speak with an attorney. We held that the delivery of O'Connell warnings is not contingent upon a display of confusion by the motorist. Id. In the majority opinion Mr. Justice Cappy wrote: "[a driver] may reasonably believe that he is entitled to counsel prior to submitting to chemical testing and refuse on this basis without exhibiting confusion or specifically requesting counsel." Danforth, 530 Pa. at 332-333, 608 A.2d at 1046.

We specifically held that when the police give a motorist his Miranda warnings and then follow the warnings with a request to submit to chemical testing, the officer must provide the motorist with O'Connell warnings so he may make a knowing and conscious decision whether to submit to chemical testing. We found that this rule provided certainty in connection with a fundamental right without being burdensome to law enforcement. Id. Therefore, we reversed the Commonwealth Court which affirmed PennDOT's suspension of Danforth's driving privilege.

Most recently, we examined the necessity of O'Connell warnings when the motorist has not been informed of his Miranda rights. In addition, we looked at the adequacy of the warning given. In Commonwealth, Dept. of Transp. v. McCann, 533 Pa. 456, 626 A.2d 92 (1993), the motorist was arrested for driving under the influence and was asked to submit to...