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08/21/97 COMMONWEALTH PENNSYLVANIA v. RICHARD

August 21, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD DUSTIN MERCER, APPELLANT



Appealed From No. S.A. 0057 of 1995. Common Pleas Court of the County of Allegheny. Judge O'BRIEN.

Before: Honorable Joseph T. Doyle, Judge, Honorable Dan Pellegrini, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: August 21, 1997

Richard Dustin Mercer (Licensee) appeals an order of the Court of Common Pleas of Allegheny County (Common Pleas), which affirmed a one-year suspension of Licensee's driver's license, imposed by the Department of Transportation (DOT), for refusing to submit to chemical testing pursuant to Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547. *fn1

On September 19, 1995, Officer Jeff A. Filardi of the Charleroi Borough Police Department observed Licensee's vehicle traveling the wrong way on a one-way street. Officer Filardi stopped Licensee's vehicle and detected an odor of alcohol on Licensee's person. Licensee submitted to field sobriety tests, which he failed. Officer Filardi then requested Licensee to submit to a chemical test of his blood. Licensee agreed to the blood test, and Officer Filardi transported him to Mon Valley Hospital.

At the hospital, Officer Filardi asked Licensee if he was willing to submit to the blood test and informed Licensee that his operating privilege would be suspended for one year if he refused to submit to the test. Further, Officer Filardi presented Licensee with a hospital consent form, which contained a waiver of liability provision. The hospital would not draw Licensee's blood unless he signed the form. Licensee stated that he did not understand the form and refused to sign it without first consulting with his lawyer. Officer Filardi explained to Licensee that Licensee had no right to speak to an attorney before submitting to the blood test. Licensee, nevertheless, did not submit to the test and Officer Filardi notified DOT that Licensee refused chemical testing.

By notice mailed on December 8, 1995, DOT suspended Licensee's driver's license for one year for refusing to submit to chemical testing. Licensee appealed the suspension to Common Pleas.

At the hearing, Officer Filardi testified to the above described facts. Licensee also testified, explaining that he did not understand the hospital form and that he was willing to take the blood test. Common Pleas accepted Officer Filardi's testimony as credible and dismissed Licensee's appeal, reasoning as follows:

It is clear that [Officer Filardi] made a proper traffic stop and arrest and that he duly informed [Licensee] of the implied consent law prior to requesting his submission. We found no reasonable basis to support [Licensee's] claim that he was confused by the information provided to him regarding his rights and the testing procedure.

(Common Pleas opinion at 1-2.) This appeal by Licensee followed.

On appeal, Licensee contends that Common Pleas erred in dismissing his appeal, because a motorist's refusal to sign a consent form does not constitute a refusal to submit to chemical testing. Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996).

In Renwick, a police officer requested a motorist to submit a blood sample for chemical testing and presented the motorist with a consent form which advised her, among other things, that she was under arrest for driving under the influence of alcohol and requested the motorist to agree to the blood test. The motorist, however, sat mute, turned her head, and ignored the request for a blood sample. The motorist continued, in the face of an additional request, to be unresponsive. After the police officer informed the motorist that silence constituted a refusal of the test subjecting her to a suspension, the motorist told the police officer that she would submit to the test. But, when the officer presented her with the consent form, she refused to sign it. The police officer told the motorist that, if she did not sign the document, he would deem it a refusal of the test. DOT suspended her driver's license for refusing chemical testing. She appealed to a common pleas court, which dismissed her appeal. We reversed, holding that Section 1547 of the Vehicle Code does not require a licensee to sign a consent form in addition to consenting to the chemical test. The Supreme Court granted allocatur to consider whether a licensee's refusal to sign a consent form establishes a refusal to submit to chemical testing.

The Supreme Court concluded that:

Requiring a licensee to sign a form, of whatever nature, in order to consent to chemical testing, is beyond the parameters of § 1547 [of the Vehicle Code] which does not require a licensee to complete any pretest procedure. We find . . . persuasive the reasoning that the [Vehicle] Code, not only grants civil immunity to hospitals, physicians, and technicians regarding the withdrawal of blood, § 1547(j),[ *fn2 ] but also provides that the licensee's consent is implied, § 1547(a). Thus, the written consent form is not vital to the chemical testing procedure.

Renwick, 543 Pa. at 130-31, 669 A.2d at 939 (footnote omitted). The Supreme Court, nevertheless, explained that, even if a licensee is improperly presented with a consent form, the licensee is nonetheless required, ...


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