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Jackson v. Commonwealth, Department of Transportation

Commonwealth Court of Pennsylvania

July 24, 2018

Dana R. Jackson, Appellant
v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

          Submitted: June 6, 2018

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge

          OPINION

          ROBERT SIMPSON, JUDGE

         In this license suspension appeal involving a single suspension from the refusal of two separate requests for chemical testing, Dana R. Jackson (Licensee) appeals an order of the Court of Common Pleas of Cumberland County[1] (trial court) that denied his statutory appeal from the Department of Transportation, Bureau of Driver Licensing's (Department) suspension of his operating privilege. The Department suspended Licensee under 75 Pa. C.S. §1547(b)(1)(ii) based on his refusal to submit to chemical testing after being arrested for 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 his appeal because the arresting officer failed to read the enhanced criminal penalty provisions in 75 Pa. C.S. §1547(b)(2)(ii) prior to requesting that Licensee submit to a chemical breath test. Licensee argues his position is consistent with the U.S. Supreme Court's decision in Birchfield v. North Dakota, 579 U.S., 136 S.Ct. 2160 (2016). Licensee further argues the Department failed to establish that the arresting officer read the proper implied consent warnings for a chemical blood test at the scene of the arrest. Upon review, we affirm.

         I. Background

         On February 25, 2017, Upper Allen Township Police Officer Thomas J. Dombrowski (Arresting Officer), responding to a dispatch regarding a harassment complaint lodged against Licensee by his ex-girlfriend, noticed Licensee's vehicle parked by the complainant's residence. As Arresting Officer approached the residence, he observed Licensee walking away from the residence. Arresting Officer spoke to Licensee, who provided him with his photo identification. The officer noticed that Licensee's clothing appeared disheveled, and his eyes were bloodshot and glassy. When Licensee spoke, Arresting Officer smelled a strong odor of alcohol emanating from his breath.

         Arresting Officer then took Licensee to the complainant's residence. While waiting for the complainant to answer the door, the officer observed that Licensee slurred his speech. Licensee also showed other common signs of intoxication. After speaking to the complainant, Arresting Officer and Licensee walked to the patrol vehicle. The officer confirmed that Cumberland County had an active bench warrant for him. Arresting Officer placed Licensee under arrest based on the warrant. The officer also advised Licensee that he was under arrest for public drunkenness.

          Arresting Officer then returned to the residence and confirmed with the complainant that she observed Licensee driving his vehicle just minutes prior to the officer's arrival. The officer located Licensee's vehicle and touched its hood, which was still warm. Arresting Officer then checked the vehicle's registration, confirming it was Licensee's vehicle.

         Arresting Officer then returned to his vehicle and asked Licensee to submit to a blood test for DUI. Licensee did not consent to the blood test. Arresting Officer next read Licensee the implied consent warnings for chemical testing from a handheld card he keeps on his person.

         While Arresting Officer read the warnings, Licensee attempted to yell at the complainant. Licensee also requested to speak with his attorney. When he finished reading the warnings, Arresting Officer asked Licensee if he would consent to a blood test. Licensee either said no or asked to speak to his attorney. At that point, Arresting Officer advised Licensee that if he did not provide an answer, it would constitute a refusal. Licensee, however, failed to provide an answer.

         After reading Licensee the warnings, Arresting Officer asked Licensee if he understood them. Licensee replied no. Arresting Officer then paraphrased the warnings and continued to explain them. Licensee, however, continued to request an attorney.

          Arresting Officer then transported Licensee to the prison booking center. The officer noticed an Intoxilyzer machine, and he provided Licensee with an opportunity to consent to a chemical breath test. This time, Arresting Officer read the warnings directly from a DL-26A (breath test) Form to Licensee. Although Licensee listened to the warnings, he had some questions and continued to request an attorney. After a few minutes, Arresting Officer asked Licensee if he would consent to the breath test. Ultimately, Licensee said no; he also refused to sign the DL-26A Form. After Licensee's second refusal, the officer left him in the custody of the booking agents.

         In March 2017, the Department mailed Licensee a notice of suspension advising him that his driving privilege would be suspended for a period of 18 months for a violation of 75 Pa. C.S. §1547(b)(1)(ii) based on his refusal to submit to chemical testing. Licensee filed a timely statutory appeal of the notice of suspension.

         In July 2017, the trial court held a hearing on Licensee's appeal. The Department submitted Licensee's driving record, which included a certified record of an earlier 18-month suspension based on a January 2009 misdemeanor one DUI conviction (highest rate of alcohol - .16). See Tr. Ct. Hr'g, 7/5/17, Commonwealth Ex. 1, Document Nos. 1-5. The Department explained that if a licensee's record shows a prior DUI or refusal, a subsequent refusal warrants an 18-month suspension. Tr. Ct. Hr'g, Notes of Testimony (N.T.), 7/5/17, at 5. Licensee did not object to the admission of these documents. Id. at 6.

         The Department also called Arresting Officer as a witness. He testified regarding the circumstances of Licensee's arrest. The officer further testified regarding Licensee's refusal to submit to a blood test and his subsequent refusal to submit to a breath test. Following Licensee's cross-examination of Arresting Officer, the Department rested.

         Licensee chose not to testify or present any other evidence. However, Licensee's counsel made an oral argument regarding Arresting Officer's failure to warn Licensee that he could face enhanced penalties if he did not submit to a breath test. Specifically, Licensee's counsel argued:

I don't believe that this form complies with [75 Pa. C.S. §1547]. [Section] 1547 expressly states that an individual must be warned that [he] could face the enhanced criminal penalties provided in [75 Pa. C.S. §3804(c)] if they [sic] refuse to submit to testing. Post Birchfield the form was amended for blood tests. There was a DL-26B. This just appears to be DL-26A with part of it blanked out. So in the blood context, the form wasn't even read that ignored the enhanced penalties. That is not sufficient clearly for breath. I don't think there can be a dispute as to that on the breath test. And, again, this was a sole form submitted to [the Department] as a basis for the refusal.
* * * *
So, because the sole form is a breath test and it did not comply with [75 Pa. C.S. §1547], and Birchfield in no way changes the consequences, I believe that the license should be reinstated. And, again, even if it is a blood test, I don't believe the ...

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