McKenna v. Commonwealth

CourtCommonwealth Court of Pennsylvania
Citation72 A.3d 294
Decision Date23 July 2013

72 A.3d 294


Commonwealth Court of Pennsylvania.

Submitted on Briefs Dec. 21, 2012.
Decided May 24, 2013.

Publication Ordered July 23, 2013.

[72 A.3d 295]

Terrance M. Edwards, Assistant Counsel, Harrisburg, for appellant.

Kevin M. Zlock, Langhorne, for appellee.

BEFORE: McGINLEY, Judge, and McCULLOUGH, Judge, and FRIEDMAN, Senior Judge.


The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the July 13, 2012 order of the Court of Common Pleas of Bucks County (trial court) sustaining the appeal of John P. McKenna (Licensee) from an 18–month suspension of his operating privilege imposed by DOT pursuant to section 1547(b) of the Vehicle Code.1 We reverse.

On August 18, 2011, Officer Christopher Windish (Officer Windish) of the Buckingham Township Police Department responded to a minor, two-vehicle traffic accident in which Licensee's vehicle had rear-ended another vehicle at a stoplight. (Reproduced Record (R.R.) at 15a–16a.) Officer Windish detected a strong odor of alcohol coming from Licensee's breath and his eyes appeared glassy. (R.R. at 16a.) Licensee admitted to Officer Windish that he was operating his vehicle at the time of

[72 A.3d 296]

the accident and that he had been drinking that night. (R.R. at 16a, 20a–21a.) Officer Windish administered field sobriety tests to Licensee, and based upon these tests, Officer Windish concluded that Licensee was incapable of driving safely and placed him under arrest for driving while under the influence of alcohol or controlled substance (DUI). (R.R. at 16a–17a.)

Officer Windish transported Licensee to Doylestown Hospital, informed Licensee that he was under arrest for DUI, and requested that he submit to a blood test. (R.R. at 17a.) Officer Windish told Licensee that if he refused the test, he could lose his license for 12 to 18 months and face possible jail time and fines. ( Id.) Licensee expressed confusion over his rights, believing that he had a right to an attorney because he was under arrest, and Officer Windish read the DL–26 Form to him.2 (R.R. at 19a, 30–32a.) After Officer Windish read him the form, Licensee asked Officer Windish questions regarding what penalties he could face if he refused the test and why he could not speak to an attorney before deciding whether to take the test. (R.R. at 26a, 34a.) Licensee did not agree to submit to a blood test while he was in a hospital room with a phlebotomist, but continued to ask those questions. (R.R. at 22a.) Approximately eight minutes after arriving at the hospital, Officer Windish deemed Licensee's actions a refusal to submit to the test, and Officer Windish and Licensee exited the hospital. (R.R. at 24a–25a, 36a, 108a; Findings of Fact (F.F.) No. 8.)

When Officer Windish and Licensee returned to the police car, Licensee stated that he would take the blood test. (R.R. at 22a–23a.) About two to three minutes had elapsed between Licensee's questioning about the DL–26 Form in the hospital and when Licensee agreed to take the test. (R.R. at 24a.) Office Windish did not bring Licensee back into the hospital for the phlebotomist to administer the blood test. (R.R. at 24a–25a.)

[72 A.3d 297]

After receiving notice that Licensee refused to submit to chemical testing, DOT mailed him a notice on September 1, 2011, advising that his driving privilege was being suspended for 18 months, effective October 6, 2011, pursuant to section 1547(b)(1)(h) of the Vehicle Code.3 Licensee filed a timely appeal, and, on April 9, 2012, the trial court held a de novo hearing. (R.R. at 12a, 15a.)

At the hearing, Officer Windish testified that he deemed Licensee's behavior at the hospital a refusal to submit to the blood test. (R.R. at 17a.) He stated that Licensee did not give him a yes-or-no answer even after he read Licensee the DL–26 Form. ( Id.) Officer Windish testified that Licensee continued to ask questions after being repeatedly advised that any answer other than “yes” would be deemed a refusal. (R.R. at 24a–25a.) Officer Windish testified that after he handcuffed Licensee and walked him to the police car, Licensee stopped and said he would take the test. (R.R. at 23a–24a.) Officer Windish also stated that he did not bring Licensee back into the hospital for the blood test because he believed that he only had to give Licensee one opportunity to agree to the blood test, and he had already given Licensee multiple opportunities. (R.R. at 25a.)

Licensee testified that even though he was read the warning that advised him that he had no right to speak to an attorney, he was still confused. (R.R. at 30a, 33a.) Licensee stated that he did not receive satisfactory answers as to why he could not speak to an attorney or what the additional criminal penalties would be if he refused the test. (R.R. at 33a.) Licensee testified that even after he agreed to take the test, he still did not know why he was not allowed to have an attorney and did not know what additional criminal penalties were referenced in the DL–26 Form. (R.R. at 35a.) Licensee also testified that he never said that he would not take the test and was silent or asking questions during the time he was in the hospital. (R.R. at 37a–38a.) However, Licensee acknowledged that he did not agree to take a blood test before he left the hospital. (R.R. at 37a.)

By order dated July 13, 2012, the trial court sustained Licensee's appeal. The trial court first determined that “[t]he issue in this case is not whether [Licensee's] subsequent assent to take the test vitiates his prior refusal; but rather, whether his actions at the Doylestown Hospital constitute a refusal in the first instance.” 4 (Trial court op. at 6, R.R. at 131a.)

The trial court then determined that Licensee's conduct did not constitute a refusal, but, rather, his questioning of Officer Windish was a legitimate attempt to clarify

[72 A.3d 298]

his rights. The trial court specifically found Licensee's testimony credible, noting that DOT did not dispute that Licensee asked questions with respect to his rights after being read the DL–26 Form and that he never explicitly refused to take the test. (R.R. at 108a–09a.) The trial court also noted that Officer Windish did not fully and directly answer Licensee's questions. (R.R. at 108a.) Relying on McDonald v. Department of Transportation, Bureau of Driver Licensing, 708 A.2d 154 (Pa.Cmwlth.1998), the trial court found that Licensee was not merely stalling or misleading Officer Windish, but was genuinely confused and seeking clarification of his rights in connection with agreeing to submit to the blood test. (R.R. at 116a.) The trial court held that, therefore, DOT failed to establish the requirements necessary to suspend Licensee's operating privilege.

DOT appeals to this Court,5 arguing that the trial court erred as a matter of law in holding that Licensee had not refused chemical testing. Specifically, DOT argues that the trial court erred in concluding that Licensee's confusion excused the fact that “[Licensee] did not give an unequivocal assent to Officer Windish's initial request for chemical testing.” (Trial court op. at 6.)

We note initially that in order to sustain an 18–month suspension of a licensee's operating privilege under section 1547 of the Vehicle Code, DOT must establish that: (1) the licensee was arrested for DUI 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) the licensee was requested to submit to a chemical test; (3) the licensee refused to submit; (4) the licensee was warned that refusal would result in a license suspension; and (5) the licensee was subject to one of the statutory provisions that enhances the suspension from 12 months to 18 months. Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 21–22 (Pa.Cmwlth.2010); Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa.Cmwlth.2006). In sustaining Licensee's suspension, the trial court found that DOT satisfied all but one element, specifically, that Licensee refused to submit to a chemical test.

As finder of fact, the trial court is...

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