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decided: January 19, 1989.


Appeal from the Order of the Court of Common Pleas of Franklin County, in the case of Department of Transportation, Commonwealth of Pennsylvania v. Robert Wayne Henderson, Miscellaneous Docket Volume Z, Page 93.


Robert W. Henderson, appellant, for himself.

Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellee.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 123 Pa. Commw. Page 2]

Robert W. Henderson (Appellant) appeals from a decision of the Court of Common Pleas of Franklin County which sustained the one-year suspension of Appellant's operator's license by the Department of Transportation (DOT) pursuant to Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b).*fn1

[ 123 Pa. Commw. Page 3]

On October 7, 1987, at approximately 1:10 a.m., Appellant was observed operating his vehicle without lights for three and a half blocks, drifting back and forth across two lanes of travel and changing lanes without signaling. Consequently, the police officer pulled Appellant over and requested Appellant's license and owner's card. The police officer noticed that Appellant's eyes were glassy, his suit appeared to be slept in and his breath smelled of alcohol. Subsequently, Appellant was arrested, requested to take a field sobriety test, refused and was then transported to the police station and requested to take a blood test. Appellant refused to take the test and was then advised of the consequences of his refusal whereupon Appellant requested to speak to an attorney.*fn2 As a result of this refusal, Appellant's license was suspended.

[ 123 Pa. Commw. Page 4]

On appeal from the suspension, the trial court found that the warning given to Appellant was improper because it was not issued until after he refused to take the test, but concluded that the defect was cured by a "post-warning opportunity" to assent.*fn3 The trial court relied upon this Court's decision in Jackson v. Commonwealth of Pennsylvania, 97 Pa. Commonwealth Ct. 602, 510 A.2d 396 (1986), which held that an untimely warning can be cured by a "post-warning opportunity" to assent. The licensee in Jackson failed to change his mind and assent to testing once he received the untimely warning, and his suspension was thus upheld on appeal. The trial court reasoned that Appellant's detention at the police station for twenty minutes after his refusal to submit to testing and warning of the consequences of his refusal constituted a "post-warning opportunity" to assent to testing. The trial court therefore held that Appellant's actions amounted to a refusal under Section 1547 (b) (1) and upheld DOT's suspension.

[ 123 Pa. Commw. Page 5]

Recognizing that the trial court is the ultimate finder of fact, and its credibility determinations may not be overturned on appeal, this Court's scope of review of a common pleas court decision is limited to a determination of whether constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Graves v. Commonwealth of Pennsylvania, 112 Pa. Commonwealth Ct. 390, 535 A.2d 707 (1988).

The sole issue raised by Appellant is whether the trial court erred in concluding that Appellant was given a "post-warning opportunity" to assent after the untimely warning. Appellant contends that the police officer has a duty to take some affirmative step to inform the licensee that a "post-warning opportunity" to assent is being given by the officer. DOT argues, however, that whether Appellant was given a post-warning opportunity to assent is a question of fact for the trial court and should not be disturbed if supported by the evidence. Additionally, DOT argues that Appellant's appeal is frivolous and requests an award of counsel fees pursuant to Pa. R.A.P. 2744.

To prevail upon appeal in a license suspension case under § 1547(b) of the Code, DOT must prove that the licensee was arrested for driving while intoxicated; was requested by the officer to submit to a chemical test; and refused to do so. Department of Transportation v. McCafferty, 120 Pa. Commonwealth Ct. 153, 547 A.2d 1303 (1988). Where the issue is raised, as in this case, DOT must show that the officer gave the licensee an adequate warning that the consequences of refusal will be the suspension of his operating privileges. Id. It is the Commonwealth's burden to prove each of these elements.

After review of the record, this Court finds substantial evidence to support the trial court's determination that Appellant was afforded a "post-warning opportunity" to

[ 123 Pa. Commw. Page 6]

    assent. Appellant's detention for an additional twenty minutes subsequent to the warning allowed Appellant ample opportunity to assent to take the test, yet he failed to do so. See Naples v. Department of Transportation, Bureau of Traffic Safety, 110 Pa. Commonwealth Ct. 37, 531 A.2d 869 (1987). Instead of requesting that the officer administer the test, Appellant requested to speak to his attorney. Although the defective warning was cured by the post-warning opportunity, Appellant's refusal was not vitiated by his request. Appellant admittedly was attempting to divert the officer's attention in order that he may avoid the consequences of his refusal. This conduct does not indicate a qualified or conditional response to the officer's request but clearly evidences an attempt to "debate, maneuver or negotiate" the question of taking the blood test. See Department of Transportation, Bureau of Traffic Safety v. Doherty, 88 Pa. Commonwealth Ct. 482, 490 A.2d 481 (1985). This Court finds that Appellant's conduct constitutes less than an unqualified and unequivocal assent.

This Court now turns to DOT's request for counsel fees. A key factor in deciding if an appeal is frivolous or not entails a determination of whether, as a matter of law or fact, Appellant's contentions have any likelihood of success or whether continuation of the contest is reasonable. Wenger v. Commonwealth of Pennsylvania, 107 Pa. Commonwealth Ct. 20, 527 A.2d 1071 (1987). The issue of whether a police officer must take some affirmative steps to inform a licensee that he has a "post-warning opportunity" to assent has not been specifically addressed. However, this Court in Department of Transportation, Bureau of Traffic Safety v. Tillitt, 49 Pa. Commonwealth Ct. 343, 411 A.2d 276 (1980), did refuse to uphold a license suspension under circumstances where DOT refused to accept a post-warning assent given by licensee, after his initial refusal of testing, in response

[ 123 Pa. Commw. Page 7]

    to an untimely warning. Prudence dictates, therefore, that to allow a licensee an informed choice as to refusal or assent when confronted with a request for chemical testing where an untimely warning is given, the licensee shall be allowed an opportunity for post-warning assent to testing. However, as stated in Sheakley v. Department of Transportation, 99 Pa. Commonwealth Ct. 328, 513 A.2d 551 (1986), appeal denied, 515 Pa. 586, 527 A.2d 546 (1987), a licensee should be warned of automatic license suspension prior to a request for submission to testing. Under the circumstances of this case, an award of counsel fees to DOT under Pa. R.A.P. 2744 will not be granted.

Substantial evidence exists to support the trial court's determination, and its decision is therefore affirmed.


And Now, this 19th day of January, 1989, the decision of the Court of Common Pleas of Franklin County is affirmed.

Judge MacPhail did not participate in the decision in this case.



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