Rachael D. Boseman, Appellant
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
Argued: February 7, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE JULIA K. HEARTHWAY, Judge
D. Boseman (Licensee) appeals from an order of the Court of
Common Pleas of Delaware County (trial court) that denied her
license suspension appeal and reinstated the Department of
Transportation's (DOT) one-year suspension of
Licensee's operating privilege under 75 Pa. C.S.
§1547(b)(1)(i) for refusing to submit to a chemical test
of blood after being arrested for suspicion of driving under
the influence of alcohol or controlled substance (DUI), a
violation of 75 Pa. C.S. §3802. Licensee contends the
trial court erred in denying her appeal where the evidence
established that the arresting police officer did not provide
Licensee with a meaningful opportunity to submit to a second
request for a chemical blood test purportedly made at the
police station. In addition, Licensee asserts the U.S.
Supreme Court's holding in Birchfield v. North
Dakota, U.S. __, 136 S.Ct. 2160 (2016), handed down
during the pendency of this appeal, applies here and requires
that her license suspension appeal be sustained based on the
police officer's failure to obtain a warrant to collect a
blood sample. For the reasons that follow, we affirm.
Trial Court's April 2016 Decision
April 2016 decision denying Licensee's license suspension
appeal, the trial court found the following facts. In April
2014, Upper Providence Township Police Officer Patrick
Reynolds (Arresting Officer), while conducting a traffic
check using a speed timing device, noticed a black Chevrolet
SUV travelling 75 miles per hour (mph) in a 55 mph zone.
Arresting Officer activated his patrol car's emergency
equipment and began to follow the SUV. While following,
Arresting Officer observed the SUV veer to the right side of
the road and abruptly stop. The abrupt stop nearly caused the
officer to strike the rear of the SUV. Seeing the
driver's open window, Arresting Officer used his
loudspeaker to advise the driver to pull to the shoulder of
the road. The SUV, however, continued north on Route 1 for
about a minute before making a left turn onto Collins Drive,
where it stopped.
Officer exited his vehicle and made contact with Licensee,
the SUV's driver. Licensee, however, would not look at
the officer, acted aggressively and used profanities when
speaking to him. Licensee did provide the officer with her
driver's license, registration and insurance information.
When Licensee did look at the officer, he noticed her eyes
were bloodshot and glassy. In addition, her face was red and
she slurred her speech. Arresting Officer also noticed an
odor of alcoholic beverages inside the SUV.
Officer also testified that Licensee was rude and
uncooperative during the stop. Licensee exited the vehicle
and attempted to perform three field sobriety tests, all of
which she failed. Licensee also underwent a preliminary
portable breath test (PBT), which indicated the presence of
point, Arresting Officer placed Licensee under arrest for
suspicion of DUI. The officer then seated Licensee in the
back of his patrol car and gave her an overview of the
warnings concerning refusal of chemical testing in 75 Pa.
C.S. §1547(b)(1), commonly referred to as the Implied
Consent Law. Licensee, however, responded that she would not
submit to a blood test without talking to a lawyer.
Officer then read Licensee the DL-26 form verbatim. After the
officer read Licensee the DL-26 warnings, she agreed to take
a blood test. However, while driving to the hospital,
Licensee changed her mind and told the officer to go
"f" himself and said "I'm not giving
blood, something along those lines." Tr. Ct.
Hr'g, 3/8/16, Notes of Testimony (N.T.), at 11; R.R. at
16a (emphasis added). Arresting Officer interpreted that as a
Officer then took Licensee to the Media Borough Police
Department headquarters for processing. Upon arriving,
Arresting Officer was greeted by Media Police Officers Gavin
and Leicht. Their department required them to create their
own incident report.
refused to answer their questions and proceeded to tell the
officers her life story and that she had a
"multi-million dollar deal that so happened to happen
that coming Monday …." N.T. at 12; R.R. at 17a.
Licensee also asked the officers several questions regarding
the implied consent warnings, which the officers tried to
answer. The officers then handed Licensee the DL-26 form,
which she read twice and signed. However, Arresting Officer
testified that he did not have any intentions of offering
Licensee another opportunity to submit to testing and that
based upon the totality of the circumstances he deemed
Licensee's conduct a refusal. To that end, Arresting
Officer testified that at no time after Licensee refused to
take the blood test while they were in route to the hospital
did she state that she would take the test. See N.T.
at 16-17; 30-32; R.R. at 21a-22a; R.R. at 35a-37a.
Police Officer Eric J. Gavin (Officer Gavin) also testified.
He recalled that upon arrival at the Media Police station,
Licensee was very angry, talked non-stop, and used a lot of
expletives and obscene language. See N.T. at 48-49;
R.R.at 53a-54a. When talking to Licensee, Officer Gavin
noticed a heavy odor of alcohol on her breath. Officer Gavin
further testified Arresting Officer handed Licensee a DL-26
form, which she signed. Officer Gavin never heard Licensee
agree to take a blood test.
Licensee testified on her own behalf. She recalled the field
sobriety tests, and that Arresting Officer asked her to
submit to a blood test, but that he did not give her any
warnings or read a form to her. Licensee further testified
that Arresting Officer told her they were going to the
hospital, and that she agreed to go there. However, Arresting
Officer did not tell her why they were going to the hospital.
See N.T. at 63-64; R.R. at 68a-69a.
further testified she was confused and upset at the time and
asked Arresting Officer if she had a right to an attorney.
Arresting Officer then stated: "So you're
refusing?" and Licensee replied "refusing what?
… I don't understand." See N.T. at
65-67; R.R. at 70a-72a. Arresting Officer then asked her if
she did not want to go the hospital and she said no.
further stated that Arresting Officer first gave her the
DL-26 form at the Media Police Station and told her to read
it. Licensee read and signed the DL-26 form. Licensee then
texted an attorney friend and sought guidance. See
N.T. at 79-80; R.R. at 84a-85a. Licensee then asked the
officers to take her to the hospital. However, the officers
responded: "No, it was too late." See N.T.
at 68-69; R.R. at 73a-74a.
disposing of Licensee's appeal, the trial court noted
that once a police officer provides the implied consent
warnings to a motorist, the officer has done all that is
legally required to ensure the motorist is fully advised of
the consequences of failure to submit to chemical testing.
All that is required is that the officer read the warnings to
the licensee, and that the licensee be given a meaningful
opportunity to comply with the Implied Consent Law. The
question of whether a licensee refuses to submit to a
chemical test is a legal one subject to plenary review on
appeal. Anything substantially less than an unqualified,
unequivocal assent to submit to chemical testing constitutes
a refusal. Further, a licensee's refusal need not be
expressed in words; a licensee's conduct may constitute a
refusal. Also, questions of witness credibility are for the
trial court. Tr. Ct., Slip Op., 4/20/16, at 9 (citations
the trial court rejected Licensee's argument that
Arresting Officer did not have reasonable grounds to believe
Licensee was driving while under the influence of alcohol.
Id. at 10. The trial court further found that
Arresting Officer gave Licensee the implied consent warnings
and that Licensee refused to submit to chemical testing.
Rule 1925 Opinion in Support of Order
May 2016 opinion in support of its order denying
Licensee's license suspension appeal, the trial court
made the following determinations.
Reasonable Grounds to Request Chemical Testing
trial court first determined that Arresting Officer had
reasonable grounds to conclude Licensee was operating a motor
vehicle while under the influence of alcohol. To sustain a
suspension of a licensee's operating privilege under the
Implied Consent Law, DOT must establish the licensee: (1) was
arrested for DUI by a police officer with reasonable grounds
to believe the licensee was operating a vehicle while under
the influence of alcohol or a controlled substance; (2) was
requested to submit to chemical testing; (3) refused to
submit to chemical testing; and, (4) was warned by the
officer that her license will be suspended if she refused to
submit to chemical testing. Walkden v. Dep't of
Transp., Bureau of Driver Licensing, 103 A.3d 431 (Pa.
grounds exist when a person in the positon of a police
officer, viewing the facts and circumstances as they appeared
at the time, could have concluded that the licensee was
operating the vehicle under the influence of alcohol.
Id. To find the officer had reasonable grounds to
conclude the licensee was operating the vehicle under the
influence, the court must consider the totality of the
circumstances, including such factors as: the location of the
vehicle; whether the engine was running; the odor of alcohol;
and, the behavior of the licensee (such as staggering,
swaying, lack of cooperation). Id.
as discussed above, Arresting Officer observed Licensee
driving at 75 mph in a 55 mph zone. When he followed
Licensee, Arresting Officer observed her veer to the right of
the road and abruptly stop. Licensee then refused Arresting
Officer's loudspeaker request to pull over. Rather,
Licensee continued north for about a minute before stopping.
Arresting Officer made contact with Licensee, she behaved
aggressively and used profanities. Her eyes were bloodshot
and glassy, and her face was red. Arresting Officer also
noticed an odor of alcohol. Licensee failed the three
sobriety tests, and her PBT was positive for alcohol. Given
the totality of these circumstances, the trial court
determined Arresting Officer had reasonable grounds to
conclude Licensee was operating her vehicle under the
influence of alcohol. Walkden.
Consequences of Refusal
trial court also determined Arresting Officer properly
advised Licensee of the Implied Consent Law. Once a police
officer provides the implied consent warnings to a motorist,
the officer has done all that is legally required to ensure
the motorist is fully advised of the consequences of failure
to submit to chemical testing. Dep't of Transp.,
Bureau of Driver Licensing v. Scott, 684 A.2d 539 (Pa.
1996). All that is required is that the officer read the
warnings to the licensee, and that the licensee be given a
meaningful opportunity to comply with the Implied Consent
Law. Sitoski v. Dep't of Transp., Bureau of Driver
Licensing, 11 A.3d 12 (Pa. Cmwlth. 2010). Anything
substantially less than an unqualified, unequivocal assent to
submit to chemical testing constitutes a refusal.
Id. Further, a licensee's refusal need not be
expressed in words; a licensee's conduct, such as
remaining silent, may constitute a refusal. Id.
questions of witness credibility are for the trial court.
Bomba v. Dep't of Transp. Bureau of Driver
Licensing, 28 A.3d 946 (Pa. Cmwlth. 2011). Here, the
trial court credited Arresting Officer's testimony that
he informed Licensee of the consequences of refusing chemical
testing. Upon arrest, Arresting Officer seated Licensee in
the rear of his patrol vehicle and explained the implied
consent warnings. Based upon her need to consult a lawyer,
Licensee refused Arresting Officer's request for chemical
testing. Arresting Officer then read the DL-26 form to
Licensee verbatim. Licensee then agreed to take the test, but
changed her mind and again refused the testing before they
reached the hospital. A reading of the DL-26 form
sufficiently apprises the driver, either hearing or reading
it, that if she refuses to submit to the chemical test, her
operating privileges will be suspended. Quigley v.
Dep't of Transp., Bureau of Driver Licensing, 965
A.2d 349 (Pa. Cmwlth. 2009). The fact that a particular
motorist hearing the warning may question its interpretation
is not a sufficient basis upon which to argue that the
refusal was not knowing and conscious. Id. To that
end, our Supreme Court recognizes that a licensee's
subjective beliefs do not provide a sufficient justification
for refusing to comply with the Implied Consent Law.
short, an officer's sole duty is to inform the motorist
of the implied consent warnings. Martinovic v. Dep't
of Transp., Bureau of Driver Licensing, 881 A.2d 30 (Pa.
Cmwlth. 2005). An officer has no duty to make sure the
licensee understands the warnings ...