IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA William Woo Chung, : Appellant : : v. : No C.D : Submitted: March 1, 2013 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: April 18, 2013 Appellant William Woo Chung (Chung) appeals from an order of the Court of Common Pleas of Montgomery County (trial court). The trial court denied Chung s statutory appeal of the one-year suspension of his operating privileges by the Pennsylvania Department of Transportation (DOT). DOT suspended Chung s license based upon his refusal to submit to chemical testing in accordance with Section 1547(b)(1)(i) of the Pennsylvania Motor Vehicle Code (Vehicle Code), 75 Pa. C.S. 1547(b)(1)(i), which is commonly known as the Implied Consent Law (Law). We affirm. The facts upon which both Chung and DOT appear to agree, as supplemented by the trial court s factual findings, provide the following

2 background. On December 14, 2011, at about 11:30 p.m., Montgomery Township Police Officer Adam Deussing observed the driver of a car making a right turn without using a turn signal. Officer Deussing followed the vehicle and observed the driver making another right turn without using his turn signal. When the driver made a third right turn into the parking lot of a bank without using his signal, Officer Deussing activated his emergency lights and effected a traffic stop. Believing it possible that Chung was driving under the influence of alcohol, Officer Deussing conducted a field sobriety test. Based upon Chung s performance of the test, Officer Deussing arrested Chung for driving under the influence of alcohol. Officer Deussing took Chung to Lansdale Hospital for a blood-alcohol test. Officer Deussing read Form DL-26 (otherwise known as the implied consent warnings) to Chung. After Officer Deussing read the warnings to Chung, Chung asked to look at the form. Officer Deussing asked Chung to submit to blood-alcohol testing, and Chung refused. Based upon Chung s refusal to submit to testing, DOT suspended Chung s operating privileges, and Chung appealed to the trial court. The trial court conducted a hearing on the appeal, during which DOT offered into evidence certified documents, including DOT s notice of suspension of Chung s driving privileges. DOT also offered the testimony of Officer Deussing. Chung offered his own testimony. Officer Deussing testified that Chung failed all aspects of the field sobriety test. Officer Deussing also testified that he attempted to administer a portable breath test, and that, after numerous unsuccessful attempts, he obtained a result of.099. Officer Deussing testified that during the ride to the hospital, 2

3 Chung, without prompting from Officer Deussing, stated that he, Chung, was drunk. With regard to the events at the hospital, Officer Deussing testified that he took Chung to a room that is designated for the purpose of chemical testing for persons suspected of driving under the influence of alcohol. Officer Deussing testified that he read the entire implied consent warnings to Chung. Officer Deussing testified that after he read the warnings, Chung either requested to look at the warnings or motioned to Officer Deussing an interest in looking at the warnings. Officer Deussing testified that he handed the form to Chung and that Chung looked at the form for about thirty (30) seconds. Officer Deussing testified that Chung then inquired about the proceedings again. Officer Deussing replied to Chung s question by indicating that he was asking for blood; and if not, your license will be suspended. (Notes of Testimony (N.T.) at 12.) Officer Deussing testified that he then said Will you consent to blood? and Chung responded no. (Id.) On cross-examination, counsel for Chung inquired regarding the conditions in the room where Officer Deussing read the implied consent warnings to Chung. Officer Deussing replied that he could not recall whether there was any noise in the room or whether his radio was on during his reading of the implied consent warnings. Officer Deussing added that the room was secluded and not near the main terminal, but he indicated that the door to the room was probably open. (N.T. at 16.) Chung also testified regarding personal facts as well as the events at the hospital. Chung testified that he came to the United States from Korea in 1985, and that English is his second language. He speaks in Korean when he is home 3

4 with his wife, and he is more comfortable speaking Korean than English. Chung testified that he wasn t sure whether that [was] the warning, and that he was not able to understand when Officer Deussing read the implied consent warnings to him. (N.T. at 22.) In response to the question of whether he could hear Officer Deussing clearly, Chung responded, No, because this was first time I was arrested, and then I had my handcuffs on, and I was so nervous... [a]nd I could not hear anything. (Id.) With regard to the written implied consent warning that he requested to look at, Chung testified that he was unable to read because he did not have his reading glasses and he cannot read English well. Finally, Chung also testified that Officer Deussing pointed to the line on the implied consent form where he should sign. Chung testified that he did not sign the form because he understood the warnings, but rather because [a]t the time, I was a bit upset, and then I did not know what was going on. But since a policeman asked me to sign... I signed it. (N.T. at 24.) The trial court issued an order on July 30, 2012, denying Chung s appeal and reinstating the suspension of his operating privileges. Chung filed a notice of appeal, and the trial court issued an opinion explaining the decision in accordance with Pa. R.A.P. 1925(a). The trial court stated that Chung had raised the question of whether he understood the consequences of refusing to submit to testing based upon the fact that English is not his first language. The trial court reasoned that Chung was able to understand and reply to all of the questions and demands Officer Deussing posed on the night of Chung s arrest. Further, the trial court relied upon appellate decisions indicating that police officers do not bear a burden to ensure that licensees understand the implied consent warnings, and that the police also do not have the burden to provide interpreters to persons who do not 4

5 understand English. More importantly, however, the trial court rendered a specific finding that he did not view Chung s testimony as credible. The trial court concluded that DOT satisfied its burden to show that Chung had a meaningful opportunity to submit to chemical testing, and that Chung s refusal was knowing and conscious. In his appeal to this Court, 1 Chung raises the following issues: (1) whether the trial court erred as a matter of law or abused its discretion in determining that Chung was offered a meaningful opportunity to comply with the implied consent law; and (2) whether the trial court failed to consider circumstances surrounding Chung s refusal, such that the trial court erred as a matter of law or abused its discretion in concluding that Chung knowingly and consciously refused to submit to chemical testing. Section 1547(b)(2) of the Vehicle Code, 75 Pa. C.S. 1547(b)(2), provides: (2) It shall be the duty of the police officer to inform the person that: (i) The person s operating privilege will be suspended upon refusal to submit to chemical testing; and (ii) If the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will 1 This Court s standard of review of an order of a trial court denying a licensee s appeal of a suspension of his operating privileges is limited to considering whether the trial court s findings are supported by competent evidence, whether the trial court erred as a matter of law and whether the trial court s determinations demonstrate a manifest abuse of discretion. Finnegan v. Dep t of Transp., Bureau of Driver Licensing, 844 A.2d 645, 647 n.3 (Pa. Cmwlth. 2004). 5

6 be subject to the penalties provided in section 3804(c) (relating to penalties). In a statutory appeal of a license suspension, we have held that DOT bears the burden to prove the following: (1) the licensee was arrested for driving under the influence of alcohol; (2) the licensee was asked to submit to chemical testing; (3) the licensee refused to submit to testing; and (4) the licensee was warned that his refusal to submit to testing would result in a suspension of his license and that he would be subject to enhanced penalties if he is convicted later of violating Section 3802(a)(1) of the Vehicle Code. 2 Martinovic v. Dep t of Transp., Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005). Part of DOT s burden necessitates a demonstration that the licensee was offered a meaningful opportunity to comply with the implied consent requirement to submit to chemical testing. Broadbelt v. Dep t of Transp., Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa. Cmwlth. 2006). If DOT satisfies this burden, the licensee, in order to avoid suspension, bears the burden to prove that he was (1) incapable of taking the chemical test or (2) that his refusal to take the test was not knowing or conscious. Martinovic, 881 A.2d at 34. Chung first argues that the trial court failed to engage in any analysis of the question of whether Officer Deussing offered Chung a meaningful opportunity to comply with the request to submit to testing. Chung asserts that Officer Deussing testified that he could not recall whether a radio was on during the period in which he read the implied consent warnings to Chung. Chung 2 Section 3802(a)(2) of the Vehicle Code, 75 Pa. C.S. 3802(a)(2), provides, in part, that [a]n individual may not drive... a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration... is at least 0.08% but less than 0.10% within two hours after the individual has driven... the vehicle. 6

7 apparently mentions this based upon his own testimony that he had trouble hearing Officer Deussing. Chung argues that the evidence suggests that Officer Deussing should have provided more time and greater explanation to Chung regarding the implied consent warnings based on certain factors, including: (1) Officer Deussing s concession that Chung had a heavy foreign accent; (2) Officer Deussing s failure to ask Chung if he could read English; and (3) the apparent brief amount of time between arrival in the room and Chung s refusal to submit to testing. Chung suggests that the evidence of a possible communication problem should have resulted in greater efforts on the part of Officer Deussing to ensure that Chung understood the warnings. We disagree with Chung s assessment of the trial court s opinion. In discussing the question of whether Chung s refusal was knowing and conscious, the trial court specifically reflected upon other evidence that established that Chung was offered a meaningful opportunity to comply. See Broadbelt. Specifically, the trial court pointed to evidence indicating that Chung had developed a sufficient grasp of English over the course of his thirty (30) years in the United States and that his grasp of English was sufficient throughout the events of the evening to enable him to respond to Officer Deussing s requests to perform field sobriety tests and to provide personal information. Although Chung is correct in pointing out that the trial court mentioned these factors in the context of a licensee s burden to demonstrate that a refusal was not knowing or conscious, these factual determinations also support the trial court s determination that Officer Deussing provided a meaningful opportunity for Chung to comply. Thus, we conclude that the trial court did not err in concluding that DOT satisfied its burden 7

8 to prove that Chung had a meaningful opportunity to comply with the request to submit to testing. Chung next argues that the trial court failed to consider the circumstances surrounding his refusal, which, Chung contends, demonstrate that his refusal was not knowing or conscious. As Chung points out, a licensee s inability to speak and/or understand English does not mean that he cannot act knowingly and consciously. Martinovic, 881 A.2d at 36. As we further stated in Martinovic, [w]hen motorists are unconscious from drinking, thereby allegedly preventing them from consciously refusing the test, we still hold that those motorists consciously refused the test absent some other verifiable impediment. Id. (emphasis added). Chung relies upon this highlighted language from Martinovic in claiming that he demonstrated that such an impediment precluded his knowing and conscious refusal to submit to testing. The alleged impediments Chung claims prevented him from making a knowing refusal are: (1) noise that he claims prevented him from hearing Officer Deussing read the implied consent warning; and (2) his inability to read the warning when he requested to look at the warning, because he did not have his reading glasses. With regard to Chung s claim regarding the alleged noise in the room, we note that the trial court specifically determined that it did not find Chung s testimony credible. The trial court has the power to resolve questions of credibility of witnesses. Gammer v. Dep t of Transp., Bureau of Driver Licensing, 995 A.2d 380, 383 (Pa. Cmwlth. 2010). Moreover, a trial court in rendering factual findings may accept or reject the testimony of any witness in whole or in part, subject only to review by this court for an abuse of discretion. DiCola v. Dep t of Transp., Bureau of Driver Licensing, 694 A.2d 398, 400 (Pa. Cmwlth. 1997). The trial 8

9 court, in its summary final paragraph, and without reference to a particular aspect of Chung s testimony, made a determination that Chung s testimony was not credible (apparently based upon his conclusion that Chung was able to understand Officer Deussing s directions prior to the reading of the implied consent warning). Based upon this finding and the accepted testimony of Officer Deussing, the trial court reasonably concluded that Chung had not satisfied his burden to prove that noise was an impediment to a knowing and conscious refusal. 3 The same reasoning applies to Chung s claim that he was impeded from reading the warning because he did not have his reading glasses. We conclude, therefore, that the trial court did not err in finding that Chung knowingly and consciously refused to submit to chemical testing. Accordingly, we affirm the trial court s order. P. KEVIN BROBSON, Judge 3 We also note that in Landsberger v. Department of Transportation, Bureau of Driver Licensing, 717 A.2d 1121 (Pa. Cmwlth. 1998), we held that a driver could not rely on a hearing problem as affirmative defense to a license suspension for failure to submit to chemical testing where the driver did not inform the police officer of a problem hearing and the problem was not obvious to officer. Here, Chung did not inform Officer Deussing that excessive noise prevented him from hearing the warning. 9

10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA William Woo Chung, : Appellant : : v. : No C.D : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing : O R D E R AND NOW, this 18 th day of April, 2013, the order of the Court of Common Pleas of Montgomery County is AFFIRMED. P. KEVIN BROBSON, Judge