Appeal from the Judgment of Sentence November 14, 2012 In the Court of Common Pleas of Clarion County Criminal Division at No(s): 587 CR 2100
Joseph D. Seletyn, Esq.
BEFORE: LAZARUS, OLSON and COLVILLE, [*] JJ.
Appellant, Jason C. Barr, appeals from the judgment of sentence entered on November 14, 2012. We vacate Appellant's judgment of sentence in part and remand for a new trial, limited to the issue of whether Appellant "refused" to submit to a chemical blood test.
At approximately 8:30 p.m. on September 14, 2011, Appellant was involved in a single vehicle accident where both he and his passenger were injured. Later, while Appellant was being treated in a hospital, the Pennsylvania State Police arrested Appellant and charged him with driving under the influence of alcohol ("DUI"),  and a variety of summary offenses.
Appellant proceeded to a trial by jury. On the morning of trial, Appellant's counsel proffered an oral motion in limine and sought to preclude the admission of the "DL-26 form" that was signed by Appellant. As the trial court explained: "[s]ince the Commonwealth failed to make the DL-26 form available to [Appellant's] counsel prior to the morning of trial, [the trial court] ruled in favor of [Appellant] and [held that] the DL-26 form was not admissible [at trial]." Trial Court Opinion, 1/31/13, at 1.
During trial, Pennsylvania State Police Trooper Patrick S. Berggren testified that he interviewed Appellant in the hospital approximately one hour and 45 minutes after the accident. N.T. Trial, 10/31/12, at 54-55 and 61. According to Trooper Berggren, after observing Appellant in the hospital, he "knew" that Appellant was "highly intoxicated" and incapable of safely operating his vehicle, as Appellant "had bloodshot eyes, slurred speech, a strong odor of alcohol coming off of him, and [Appellant exhibited] mood swings." Id. at 55 and 57-58.
Trooper Berggren testified that he arrested Appellant for DUI, requested that Appellant "submit to a chemical test of his blood to determine blood alcohol, " and orally provided Appellant with both the "implied consent" and "O'Connell" warnings.,  Id. at 55-57. Specifically, Trooper Berggren testified:
I advised [Appellant] that . . . it's implied in Pennsylvania [that Appellant must] give blood, breath, or urine, and if [Appellant] did not, that his license would be suspended. He would have stricter penalties and, also that he . . . could not talk to anyone or an attorney before answering me whether he would do that or not.
Id. at 56-57.
Trooper Berggren testified that Appellant appeared to understand both the implied consent and O'Connell warnings. Id. at 57. Nevertheless, as Trooper Berggren testified, Appellant responded to the chemical test request by "just answer[ing] that he wanted his attorney." Id. Trooper Berggren again informed Appellant that the demand for an attorney constituted a refusal of the chemical test. Id. Appellant, however, again simply "said he wanted his attorney." Id.
During trial, Appellant neither stipulated nor admitted to receiving the implied consent warnings. Indeed, during the cross-examination of Trooper Berggren, Appellant's counsel extensively questioned the trooper on whether the trooper ever provided Appellant with the requisite warnings. See id. at 62-64.
At the conclusion of the evidentiary presentation, Appellant's counsel requested that the trial court instruct the jury on the implied consent warnings, pursuant to 75 Pa.C.S.A. § 1547(b). Id. at 125. While counsel did not necessarily articulate the relevancy of the particular request, the trial court understood that the proposed jury instruction was "part of the ...