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Boseman v. Commonwealth

Commonwealth Court of Pennsylvania

March 17, 2017

Rachael D. Boseman, Appellant
v.
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

          OPINION

          ROBERT SIMPSON, Judge

         Rachael D. Boseman (Licensee) appeals from an order of the Court of Common Pleas of Delaware County (trial court)[1] 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.

         I. Background

         A. Trial Court's April 2016 Decision

         In its 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.

         Arresting 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.

         Arresting 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 alcohol.

         At that 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.

         Arresting 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 refusal.

         Arresting 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.

         Licensee 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.

         Media 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.

         Licensee 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. Id.

         Licensee 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.

         In 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 omitted).

         Ultimately, 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. Id.

         B. Rule 1925 Opinion in Support of Order

         In a May 2016 opinion in support of its order denying Licensee's license suspension appeal, the trial court made the following determinations.

         1. Reasonable Grounds to Request Chemical Testing

         The 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. Cmwlth. 2014).

         Reasonable 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.

         Here, 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.

         When 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.

         2. Consequences of Refusal

         The 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.

         Notably, 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. Scott.

         In 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 ...


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