Dana R. Jackson, Appellant
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
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 (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.
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.
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.
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.
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.
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
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
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.
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.
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
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 ...