Nardone v. Commonwealth

• Decision Date: 29 December 2015
• Docket Number: No. 141 MAP 2014,141 MAP 2014
• Citation: 130 A.3d 738
• Parties: John D. NARDONE, Appellant v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee.
• Court: Pennsylvania Supreme Court

130 A.3d 738

John D. NARDONE, Appellant

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

No. 141 MAP 2014

Supreme Court of Pennsylvania.

Argued May 6, 2015.

Decided Dec. 29, 2015.

Albert Joseph Flora Jr., Esq., Albert J. Flora, Jr., Attorney at Law, Wilkes–Barre, for John D. Nardone.

Terrance M. Edwards, Esq., PA Department of Transportation, Robert J. Kopacz, Esq., Dunmore, for Bureau of Driver Licensing.

SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.

OPINION

Justice STEVENS.

This appeal implicates divergent decisional overlays to the statutory scheme governing chemical testing of persons suspected of DUI and related traffic offenses. Pronouncements of the Commonwealth Court have consistently construed the "Implied Consent Law" at 75 Pa.C.S. § 1547 to require a motorist to assent unequivocally to an official request to take whichever statutorily-prescribed chemical test police select on pain of automatic license suspension, whereas Superior Court construction has discerned a motorist's compliance with the law if he responds to the official request by asking to take a reasonably practicable, prescribed test of his choosing. We, therefore, granted review to consider whether a motorist who requests an alternative test to the officer's preferred test exercises a statutory right or, instead, refuses to submit to chemical testing in violation of the Implied Consent Law so as to incur suspension of his operating privileges.

Located within "Subchapter B.—Comprehensive System for Driver Education and Control" of the Vehicle Code's Chapter 15, entitled "Licensing of Drivers," is Section 1547, which pertains to "Chemical testing to determine amount of alcohol or controlled substance" and provides in pertinent part:

(a) General rule. —Any person who drives, operates or is in actual physical control of the movement of a 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 vehicle:

(1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under the influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock); or

(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

(b) Suspension for refusal. —

(1) If any person placed under arrest for a violation of section 3802 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 as follows:

(i) Except as set forth in subparagraph (ii), for a period of 12 months.

...

(2) It shall be the duty of the police officer to inform the person that:

(i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and

(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties).

...

(i) Request by driver for test. —Any person involved in an accident or placed under arrest for a violation of section 1543(b)(1.1), 3802 or 3808(a)(2) may request a chemical test of his breath, blood or urine. Such requests shall be honored when it is reasonably practicable to do so.

...

75 Pa.C.S. § 1547(a)(1) and (2), (b)(1) and (2), and (i).

Police arrested Appellant for violating 75 Pa.C.S. § 3802 (relating to driving under influence of alcohol or controlled substance) ("DUI") and transported him to a nearby hospital for chemical testing. After reading a PennDOT Form DL–26 to inform Appellant of the Implied Consent Law and alert him to the consequences of refusing to submit to chemical testing, see Section 1547(b)(2), supra, police requested that he submit to a chemical test of his blood. Appellant replied by showing police what he considered to be an inexplicably large coagulation of blood in his arm resulting from a relatively minor bump sustained earlier in the day, and he expressed his concern that his body may react in a similar way to a needle. He, therefore, asked police if he could, instead, submit to urinalysis, a breathalyzer or both.¹ After brief discussion, police responded that Appellant's request for an alternative test constituted a refusal because, they explained, they held exclusive discretion to select the test. Appellant disputed that he was refusing chemical testing and reiterated that he was willing to take either or both of the other tests. Nevertheless, police asked Appellant to sign the DL–26 form in acknowledgement of his refusal to take the blood test. Appellant continued to disagree in vain with their assessment until he eventually signed the form and added the notation that police refused his offer to submit to a breathalyzer and/or urine test. At no time during this discussion did Appellant indicate he would consent to the official request for a blood test. The Department of Transportation's Bureau of Driver Licensing ("DOT") subsequently suspended Appellant's operating privilege for one year pursuant to the requirements of Section 1547(b)(1)(i), supra.

Appellant appealed his license suspension to the Court of Common Pleas of Luzerne County, which, after a de novo hearing, sustained his appeal. Specifically, the trial court determined that Appellant's failure to submit to the test requested by police did not constitute a refusal to submit to chemical testing under Section 1547(b)(1) because he had otherwise agreed to take a reasonably practicable, different test pursuant to Section 1547(i), supra. In so deciding, the trial court relied upon the statutory construction expressed by the Superior Court in Commonwealth v. Barker, 70 A.3d 849 (Pa.Super.2013)(en banc). In Barker, the Superior Court held that an officer's refusal to grant alternative testing to a motorist who presented a facially valid allegation that he was a brittle diabetic suffering infection from a recent injection violated the right to alternative testing found in Section 1547(i).²

DOT appealed to the Commonwealth Court, which reversed in a unanimous, unreported panel decision that refused to recognize a motorist's right under Section 1547(i) to alternative chemical testing. Supporting this decision was well-established precedent of the intermediate court that " Section 1547 does not afford a [motorist] a choice among the three tests listed; rather, it is the police officer who has the option to choose the type of chemical test to be administered." Tarka v. Com., Dept. of Transp., Bureau of Driver Licensing, 756 A.2d 138, 141 (Pa.Cmwlth.2000) (citation omitted) overruled on other grounds by Orloff v. Com., Dept. of Transp., Bureau of Driver Licensing, 912 A.2d 918 (Pa.Cmwlth.2006). It is for this reason that anything other than a direct assent to submit to the chemical test requested by the police officer constitutes a Section 1547(b)(1) refusal, which is not vitiated by a motorist's offer to submit to a different test. McKenna v. Com., Dept. of Transp., Bureau of Driver Licensing,

72 A.3d 294 (Pa.Cmwlth.2013). It is only where a motorist who failed to assent to the officer's request establishes through competent medical evidence that he was mentally or physically incapable of assenting can he avoid the civil penalty of license suspension. Lemon v. Com., Dept. of Transp., Bureau of Driver Licensing, 763 A.2d 534 (Pa.Cmwlth.2000). The facts of Appellant's case, the panel below held, brought him squarely under this jurisprudence, requiring reversal.

This Court granted Appellant's petition for allowance of appeal to resolve these conflicting interpretations of the Implied Consent Law, and we directed the parties to brief the following issues:

(1) In response to a request for chemical testing arising out of a DUI arrest, does a motorist have a statutory right to request alternative chemical testing under section 1547(i) of the Vehicle Code (75 Pa.C.S. § 1547(i) )?

(2) If a motorist has a statutory right to request alternative chemical testing under section 1547(i) of the Vehicle Code when arrested for a DUI, does section 1547 require that any such request be conditioned upon the motorist having a medical condition preventing him from undergoing the chemical test requested by the police?

(3) In response to a police request for chemical testing arising out of a DUI arrest, does a motorist's request for alternative chemical testing, without more, constitute a refusal to undergo chemical testing under 75 Pa.C.S. § 1547(b)(1) ?

Nardone v. Com., Dept. of Transp., Bureau of Driver Licensing, –––Pa. ––––, 105 A.3d 658 (2014).

"Our scope of review of a decision in a license suspension case is limited to determining whether the trial court's findings of fact are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion in reaching its decision." Terraciano v. Com., Dept. of Transp., Bureau of Driver Licensing, 562 Pa. 60, 753 A.2d 233, 236 (2000) (citation omitted). However, where the question is one of statutory construction, which is a question of law, "this Court's review is plenary and we owe no deference to the lower courts' legal conclusions." Siekierda v. Com., Dept. of Transp., Bureau of Driver Licensing, 580 Pa. 259, 860 A.2d 76, 81 (2004) (citation omitted).

The object of statutory interpretation is to determine the intent of the General Assembly. 1 Pa.C.S. § 1921(a). "When the words of a statute are clear and free from all...