The opinion of the court was delivered by: P. Kevin Brobson, Judge
AND NOW, this 4th day of October, 2010, upon consideration of the Appellant's Application to Report Unreported Opinion said Application is granted. It is hereby ordered that the opinion filed August 4, 2010 shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Appellant Department of Transportation, Bureau of Driver Licensing (DOT), appeals from an order of the Court of Common Pleas of Allegheny County (trial court). The trial court sustained the statutory appeal of Alice Marie Scott (Licensee) from DOT's order that suspended her driving privileges for one year after she refused to submit to chemical testing based upon suspicion that she was driving while under the influence of alcohol. We reverse the trial court's order.
At a hearing before the trial court, DOT presented the testimony of Officer Gary Watkins (Officer Watkins) of the Police Department of the Borough of Castle Shannon. Officer Watkins testified that on November 15, 2008, he observed Licensee driving her vehicle into the opposing lane of traffic. (Reproduced Record (R.R.) 17a.) He stated that when he approached Licensee in her vehicle, Licensee placed gum in her mouth and that he had to knock on the vehicle's door three separate times before she responded to him. (Id.) Officer Watkins smelled alcohol on Licensee's breath, despite the fact that she had placed gum in her mouth before opening her car door. (R.R. 18a.) After administering the "Gaze Nystagmus" field sobriety test to Licensee, Officer Watkins observed several indications of insobriety, including a swayed gait while walking and swaying while standing still. Thereafter, Licensee refused any additional field tests. (R.R. 18a-19a.) Officer Watkins testified that, based upon his experience, he believed Licensee was not safe to drive and placed her under arrest for driving under the influence of alcohol. (R.R. 19a.) Officer Watkins and his patrol partner had to use force to place Licensee in the police car. (R.R. 20a.) Officer Watkins asked Licensee to submit to blood-alcohol testing, but she refused. (Id.) Officer Watkins then read Implied Consent Form DL-26 to Licensee. (Id.) Licensee then again refused to submit to chemical testing. (Id.)
Officer Watkins also testified regarding Licensee's demeanor following her arrest. His testimony indicates that Licensee was uncooperative, alert, and cognizant. (R.R. 21a-22a.) Licensee told Officer Watkins that she "wanted her son to come up and punch [Officer Watkins] in the face." (R.R. 22a.)
At the hearing before the trial court, Licensee offered into the record an April 9, 2009 deposition of her treating physician, Nenad Janicijevic, M.D., to which DOT did not object. (R.R. 30a-31a.) Dr. Janicijevic also employs Licensee as a medical assistant in his medical practice. (Id.)
Licensee testified that Officer Watkins did not tell her why he had pulled her over. That factor, she claimed, led to her "emotional state" at the time, which she described as including a pounding heart, trouble breathing, sweaty hands, fear, and nervousness. (R.R. 32a-34a.) Licensee stated that she did not remember Officer Watkins reading the implied consent warnings and that "if I had known and understood, I certainly would not have denied anything to lose my license for a whole year." (R.R. 34a-35a.) Licensee refused to answer a question from DOT's counsel as to whether she had been drinking that night. (R.R. 37a.) She also testified that she did not take a Zanax until she returned home. (R.R. 38a.)
On October 6, 2009, the trial court issued its order, sustaining Licensee's appeal. The trial concluded that Licensee established that, because of a medical condition-panic disorder, Licensee could not make a knowing and conscious refusal to submit to chemical testing.
DOT raises the following issues in its appeal: (1) whether the trial court erred in concluding that Licensee satisfied her burden of proving that she was not capable of making a knowing and conscious decision to refuse to submit to chemical testing, and (2) whether Licensee failed to establish that alcohol consumption did not contribute to her alleged inability to make a knowing and conscious refusal to submit to chemical testing.*fn1 In response, Licensee, in addition to asserting that there was ample evidence to support her claim of an inability to refuse Officer Watkins' request in a knowing and conscious manner, asserts that
(1) DOT did not establish that Officer Watkins adequately informed Licensee of the implied consent law, and (2) there is no evidence in the record indicating that alcohol played a role in Licensee's refusal to submit to chemical testing.
In a license suspension case where DOT suspends a license based upon a licensee's refusal to submit to chemical testing, DOT has the burden of proving the following elements: (1) a police officer arrested a licensee based upon reasonable grounds to believe that the licensee was driving under the influence of alcohol; (2) the officer asked the licensee to submit to chemical testing; (3) the licensee refused to submit to such testing; and (4) the officer provided a warning to the licensee that the licensee's failure to submit to testing would result in the suspension of his license. Banner v. Dep't of Transp., Bur. of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999).
Once DOT establishes that a licensee refused to submit to testing, the burden shifts to the licensee to establish that she was not physically capable of submitting to testing. Dep't of Transp., Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 252, 648 A.2d 285, 293 (1994). When, as in this case, a licensee alleges that she could not make a knowing and conscious refusal because of a medical disability, the licensee must ...