decided: January 12, 1989.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
C. EUGENE ELLIOTT, APPELLEE
Appeal from the order of the Court of Common Pleas of Westmoreland County in the case of Commonwealth of Pennsylvania v. C. Eugene Elliott, No. 5266 of 1987.
Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.
Paul D. Zavarella, with him, Louis W. Emmi, for appellee.
Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.
[ 122 Pa. Commw. Page 590]
The Court of Common Pleas of Westmoreland County, after a hearing de novo, sustained the appeal of C. Eugene Elliott (Elliott) and reversed the one year suspension of Elliott's operator's license by the Department of Transportation (Department) pursuant to Section 1547(b)(1) of the Vehicle Code (Code)*fn1 (refusal to submit to an intoxilyzer test). The Department appeals this order by the trial court. We reverse.
On June 13, 1987, Pennsylvania State Trooper Marcina Robinson stopped Elliott for travelling at an excessive rate of speed. Trooper Robinson testified that
[ 122 Pa. Commw. Page 591]
upon stopping the Elliott vehicle, she detected the odor of an intoxicating beverage on Elliott's breath and that Elliott's eyes appeared red and glassy. For this reason, Trooper Robinson had Elliott perform certain field sobriety tests. At the conclusion of these tests, Trooper Robinson placed Elliott under arrest and gave him his Miranda*fn2 warning. Elliott was then transported to the Kiski Valley State Police Barracks. At the state police barracks, Trooper Daniel T. Ferrick, a certified intoxilyzer operator, advised Elliott of the implied consent law and that his refusal to submit to testing would result in the suspension of his license for a one year period. Trooper Ferrick then asked Elliott if he had any questions and Elliott indicated he did not. Elliott was then requested by Trooper Ferrick to submit to an intoxilyzer test. Elliott testified that when asked to submit to the intoxilyzer test, he told the officer he did not want to take the test and then asked if he could call his attorney.*fn3
The essential issue presented by the Department on appeal is whether the state police troopers had a duty to advise Elliott that he did not have a right to an attorney for purposes of submission to an intoxilyzer test when Elliott never expressed this confusion to the officers. Under the circumstances herein, we must answer this question in the negative.
In license suspension cases, our scope of review is limited to determining whether the trial court's findings are supported by competent evidence, whether an error of law has been committed, and whether the trial court's decision constitutes a manifest abuse of discretion.
[ 122 Pa. Commw. Page 592]
In support of its position, the trial court relied on Bureau of Traffic Safety v. Ferrara, 89 Pa. Commonwealth Ct. 549, 493 A.2d 154 (1985) whereby the Department's suspension of the arrestee's license was reversed. In Ferrara, the arrestee responded to a request for chemical testing by asking whether she could call someone first. The officer replied that she could, but then asked her to complete some papers and shortly thereafter placed her in a cell. The arrestee was never given the opportunity to make the telephone call nor was she again requested to submit to chemical testing. This Court reasoned that although the officer did not have a duty to allow the arrestee to consult with anyone, by telling her that she could make a telephone call he placed himself under a duty to either allow her to make the call or to inform her that he had changed his mind. Due to the officer's misleading statements in Ferrara, this Court concluded that no refusal ever occurred.
However, the trial court's reliance on Ferrara is misplaced. In the matter herein, the trial court found that: (1) Elliott, when asked if he understood the implied consent law, responded in the affirmative, (2) when asked to submit to an intoxilyzer test, Elliott refused, and (3) immediately after his refusal, Elliott asked if he could consult with an attorney. It is also important to note that the trial court did not make any findings as to whether Elliott verbalized to the officers his confusion as to whether the Miranda right applied to the officers' request to submit to an intoxilyzer test.
We believe the circumstances herein are similar to those in Department of Transportation v. O'Connell, 99 Pa. Commonwealth Ct. 410, 513 A.2d 1083 (1986), petition for allowance of appeal granted 515 Pa. 587, 527 A.2d 546 (1987). In O'Connell, the arrestee after being given his Miranda warnings was transported to the police station. At the police station, the arrestee was advised
[ 122 Pa. Commw. Page 594]
of the consequences of a refusal to submit to a breathalyzer test. When asked to submit to the breathalyzer test, the arrestee refused. At the hearing before the trial court, the arrestee testified that his refusal was based on the fact that he had not been permitted to contact an attorney. This Court reversed the trial court and upheld the Department's suspension specifically noting that there was no evidence in the record to support the trial court's finding that the arrestee told the officer what his grounds for refusal were. O'Connell, 99 Pa. Commonwealth Ct. at 416, 513 A.2d at 1086.
In the matter now before this Court, we believe two important facts warrant reversal. Firstly, when asked to submit to a breathalyzer, Elliott replied in the negative and then asked to speak with his attorney.*fn4 Secondly, there is absolutely no evidence in the record, nor did the trial court so find, that Elliott ever verbalized to Troopers Robinson or Ferrick that his refusal was based upon his belief that the Miranda warnings applied to the request to submit to an intoxilyzer test.
[ 122 Pa. Commw. Page 595]
For these reasons, we must reverse the order of the trial court.
And Now, this 12th day of January 1989 the order of the Court of Common Pleas of Westmoreland County in the above-captioned matter is hereby reversed.
Judge MacPhail did not participate in the decision in this case.