Com. v. Mordan

• Decision Date: 17 February 1993
• Citation: 419 Pa.Super. 214,615 A.2d 102
• Parties: , 3 NDLR P 147 COMMONWEALTH of Pennsylvania v. Rodney L. MORDAN, Appellant.
• Court: Pennsylvania Superior Court

Page 102

615 A.2d 102

419 Pa.Super. 214, 3 NDLR P 147

COMMONWEALTH of Pennsylvania v. Rodney L. MORDAN, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 7, 1992.

Filed Oct. 21, 1992.

Petition for Allowance of Appeal Granted Feb. 17, 1993.

Stephen S. Pennington, Philadelphia, for appellant.

Mary M. Killinger, Executive Asst. Dist. Atty., Norristown, for Com., appellee.

Before CIRILLO, TAMILIA and FORD ELLIOTT, JJ.

FORD ELLIOTT, Judge.

Rodney Mordan, a deaf mute, was found guilty following a bench trial of driving under the influence of alcohol in violation of 75 Pa.C.S.A. § 3731. On appeal, three issues are raised for our review: (1) whether a deaf mute has the right to a sign language interpreter upon arrest for driving under the influence so that the statutory right to refuse the test may be exercised; (2) whether the violation of the right to a language interpreter requires the suppression of the breathalyzer test results; and (3) whether admission of the breathalyzer test result into evidence was harmless error. We hold that a deaf motorist is not entitled to a sign language interpreter prior to submission to a breathalyzer test so that defendant can make an informed choice as to whether to take the test, and that the breathalyzer results will not be suppressed because the services of an interpreter were not provided before the motorist submitted to the test.

On November 18, 1989, at about 11:20 p.m., Officer James Crawford of the Lower Providence Township Police Department observed appellant driving west on Egypt Road in Lower Providence Township, Montgomery County, and following three to five feet behind another vehicle. As the officer attempted to stop the vehicle, he observed that it went up and over a curb before stopping.

When the officer approached Mordan's vehicle, on the driver's side, he smelled alcohol on the appellant's breath and observed that his eyes were blood shot. The officer also saw a twelve-pack of beer from which several cans were missing on the floor of the passenger side of the vehicle. ¹

When the officer requested that appellant produce his driver's license, the officer noticed appellant pointing to the address on the license and making noise as if he was trying to speak; he also motioned for something to write upon. The officer realized that appellant was deaf and mute. The officer gave appellant a notepad upon which to write. The officer then communicated to appellant in writing to inform him of the reason for the stop, to request his registration and insurance card, and to instruct him on performing the field sobriety tests. The officer also physically demonstrated the sobriety tests. Appellant produced the registration and insurance cards and performed the sobriety tests which he failed.

Officer Crawford placed appellant under arrest and informed appellant in writing that he would be taken to the West Norriton Police Department for a breath test. At the station, appellant was informed both orally and in writing that if he refused to take the breathalyzer test he would lose his license for one year. Mordan submitted to the breathalyzer test and registered a .13 and .14 on two successive tests.

At the hearing on the motion to suppress, the trial court determined as a fact that appellant did not understand that he could have refused to submit to the breathalyzer tests because he could not read lips and could not read well enough to have understood that he could have refused to take the breathalyzer.

The suppression motion was denied and appellant was found guilty during a bench trial of driving under the influence. Appellant filed a motion for a new trial and in arrest of judgment. Following arguments on the motion before a court en banc consisting of the Honorable William W. Vogel, P.J., and the Honorable William H. Yohn, appellant's motions were denied. Appellant then timely filed this appeal.

The first issue raised by appellant is one of first impression in this Commonwealth. Appellant frames the issue as whether a deaf individual has the right to an interpreter so that he may communicate with a police officer for the purpose of exercising his statutory right to refuse a breathalyzer test and to be advised of the consequences of a refusal. Appellant argues that a deaf person has a right to a sign language interpreter so that he can meaningfully participate in proceedings which are available to hearing persons.

Section 1547 of the Vehicle Code states, in part:

(a) General rule.--Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:

(1) while under the influence of alcohol or a controlled substance or both;

. . . . .

(b) Suspension for refusal.--

(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.

(2) It shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended upon refusal to submit to chemical testing.

75 Pa.C.S.A. § 1547(a), (b).

"[A]s a condition of maintaining a driver's license in this Commonwealth, all drivers are subject to the implied consent requirements of the Motor Vehicle Code and must submit to blood and breath tests under appropriate circumstances." Commonwealth v. O'Connell, 521 Pa. 242, 251, 555 A.2d 873, 877 (1989). Where an officer has reasonable grounds to believe that a motorist is driving while under the influence of alcohol, the driver may properly be requested to submit to a chemical test of blood, breath or urine to determine the alcoholic content of the blood. Commonwealth v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987). When appellant was granted the privilege to drive upon Pennsylvania roadways, he agreed to submit to chemical testing in the event that a police officer had reasonable grounds to request such a test by implied consent. Section (b)(1) of 1547, however, permits a motorist to refuse a chemical test, thereby revoking implied consent to submit to the test. It is well established that no constitutional right to refuse testing exists. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Commonwealth v Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988), this court stated:

While the legislature has provided by statute that a driver, whom the police have probable cause to believe has been operating a vehicle while under the influence of alcohol, may refuse to submit to a chemical test for blood alcohol content, this right of refusal is not a constitutional right but rather is created solely by operation of the statute. 'Neither the Fourth Amendment bar against unreasonable searches and seizures nor Fifth Amendment privilege against self-incrimination prevents the Commonwealth from requiring that a driver submit to a breathalyzer test. A driver therefore does not have a constitutional right to refuse. He has no right to refuse other than as provided in the implied consent law. Neither the Fourth nor Fifth Amendments prevents the admission into evidence of test results or of refusal.... A driver has no right to have evidence either of the test results or of the refusal excluded....'

Id. at 359, 551 A.2d at 1092-1093 (citations omitted). ²

Instantly, the evidence presented reveals that appellant drove his vehicle over a curb before stopping, the officer smelled alcohol on appellant's breath, and observed that appellant's eyes were red, empty beer cans were visible inside the vehicle and appellant failed the sobriety tests. We are satisfied that the Commonwealth met its burden under 75 Pa.C.S.A. § 1547(a)(1) to show that the officer had reasonable grounds to believe that appellant was driving under the influence of alcohol; hence, where an officer reasonably believed that appellant was driving under the influence, appellant, like any other motorist, shall be deemed to have given consent to at least one test of blood, breath or urine for the purpose of determining the alcoholic content of the person's blood. See Commonwealth v. Smith, 382 Pa.Super. 288, 555 A.2d 185, appeal denied, 524 Pa. 607, 569 A.2d 1366 (1989) (Section 1547(a)(1) of the Vehicle Code permits a chemical test of a suspect's blood, without the suspect's consent, if the officer has reasonable grounds to believe that the suspect was driving under the influence of alcohol).

Appellant concedes that informed consent is not required under Section 1547; nevertheless, he argues that an interpreter should have been provided so that he could exercise his statutory right to refuse the test and be informed of the consequences of a refusal. Appellant further contends that it is the law in Pennsylvania that a deaf person has a right to an interpreter during an interrogation and criminal proceedings. The statute states:

(a) Interrogation.--Upon the arrest of any deaf person, and prior to interrogation, the arresting officer shall make available to such person an interpreter who shall be present with such person throughout the interrogation.

(b) Criminal proceeding.--In any criminal proceeding in which a defendant is deaf the court shall appoint an interpreter to assist the defendant throughout the proceeding.

42 Pa.C.S.A. § 8701(a), (b). Participation in a breathalyzer test is not the equivalent of an interrogation, nor is it a criminal...