IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anthony Quintal, : Appellant : : v. : : Commonwealth of Pennsylvania, : Department of Transportation, : No C.D Bureau of Driver Licensing : Submitted: February 7, 2014 BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COVEY FILED: April 30, 2014 Anthony Quintal (Licensee) appeals from the Mercer County Common Pleas Court s July 24, 2013 order denying his appeal from the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing s (DOT) suspension of his operating privileges for refusing to submit to chemical testing under Section 1547(b) of the Vehicle Code, 75 Pa.C.S. 1547(b). The sole issue for this Court s review is whether the trial court erred by finding that Licensee refused to submit to a blood test. We affirm. On April 6, 2013, at 12:52 a.m., Hermitage Police Department Corporal Louis Squatrito (Corporal Squatrito) responded to a single vehicle accident on the Shenango Valley Freeway in Hermitage, Pennsylvania. When Corporal Squatrito arrived, Licensee, the driver, was standing outside the vehicle. Corporal Squatrito observed that Licensee had bloodshot and glassy eyes, and an odor of alcohol on his breath. Licensee admitted to Corporal Squatrito that he had been drinking before

2 driving that evening. Licensee was asked to perform three roadside sobriety tests, which he failed. Corporal Squatrito arrested Licensee for driving under the influence of alcohol (DUI) under Section 3802(a) of the Vehicle Code, 75 Pa.C.S. 3802(a). 1 While Licensee was seated in the back seat of the police car, Corporal Squatrito read Licensee the chemical test refusal warning verbatim from the implied consent form (DL-26). Corporal Squatrito asked Licensee if he would submit to a blood test. Licensee agreed, and Corporal Squatrito transported him to a local hospital for the test. However, Corporal Squatrito deemed Licensee s conduct at the hospital a refusal to submit to the blood test. By April 24, 2013 letter, DOT notified Licensee that his license had been suspended for one year for refusing chemical testing on April 6, Licensee appealed to the trial court. The trial court held a hearing on July 5, 2013, and on July 24, 2013 denied Licensee s appeal. Licensee appealed to this Court. 2 1 Section 3802(a) of the Vehicle Code states: General impairment.-- (1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. (2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. 75 Pa.C.S. 3802(a). 2 Our scope of review of a decision in a license suspension case is limited to determining whether the trial court s findings of facts are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion in reaching its decision. Orloff v. Dep t of Transp., Bureau of Driver Licensing, 912 A.2d 918, 922 n.7 (Pa. Cmwlth. 2006). 2

3 Licensee argues that the trial court erred by finding that Licensee refused to submit to a blood test because after Licensee consented to the test, Corporal Squatrito conditioned it on him signing the NIK Kit 3 consent form. We disagree. Section 1547(a) of the Vehicle Code, commonly referred to as the Implied Consent Law provides in relevant part: Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle: (1) in violation of [S]ection [of the Vehicle Code] (relating to driving under influence of alcohol or controlled substance) Pa.C.S. 1547(a). Section 1547(b)(1) of the Vehicle Code states in pertinent part: If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person... for a period of 12 months. 75 Pa.C.S. 1547(b)(1). In order to maintain a license suspension under Section 1547 of the Vehicle Code, DOT has the burden of proving that: (1) the licensee was arrested for drunken driving by a police officer who had reasonable grounds to believe that the motorist was operating a motor vehicle while under the influence of alcohol; (2) the licensee was requested to submit to a chemical test; (3) the licensee refused to submit; and (4) the licensee was warned that refusal would result in a license suspension. 3 The NIK Kit is the kit that the lab technician uses to draw blood. The drawn samples are sent to the Erie Crime Lab for processing. The consent card is sent with the NIK Kit to the Lab. 3

4 Broadbelt v. Dep t of Transp., Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa. Cmwlth. 2006). Only the third requirement - refusal to submit to a chemical test is contested by Licensee in this appeal. This Court has held that [t]he question of whether a licensee has refused chemical testing is one of law, based upon the facts found by [the trial court]. Tullo v. Dep t of Transp., Bureau of Driver Licensing, 837 A.2d 605, 607 n.2 (Pa. Cmwlth. 2003). In addressing this issue, we have consistently held that anything substantially less than an unqualified, unequivocal assent to submit to testing constitutes a refusal to do so. McKenna v. Dep t of Transp., Bureau of Driver Licensing, 72 A.3d 294, 298 (Pa. Cmwlth. 2013). In Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996), the Pennsylvania Supreme Court suggested that the courts look at a licensee s overall conduct when determining whether a licensee refused to take a chemical test. See also Petrocsko v. Dep t of Transp. Bureau of Driver Licensing, 745 A.2d 714 (Pa. Cmwlth. 2000). It is also well-settled that silence can constitute a refusal. Grogg v. Dep t of Transp., Bureau of Driver Licensing, 79 A.3d 715, 719 (Pa. Cmwlth. 2013). It is undisputed that after Corporal Squatrito and Licensee arrived at the hospital, Corporal Squatrito asked Licensee to sign the DL-26 acknowledging that Corporal Squatrito had advised him of his rights. Licensee asked to read the form. After Licensee read the form, he asked Corporal Squatrito whether he had ever been challenged on the DL-26, and whether refusing to sign would constitute a refusal to submit to the blood test. Corporal Squatrito answered that a refusal to sign the form would not constitute a refusal. Before Licensee s blood was drawn, Corporal Squatrito presented him with a NIK Kit consent form. Licensee asked Corporal Squatrito whether refusing to sign the NIK Kit consent form would constitute a refusal to take the test. Corporal Squatrito advised Licensee three times that if he did not sign the NIK Kit consent, the lab technician would not draw his blood, and that 4

5 would be considered a refusal. 4 Licensee also asked Corporal Squatrito how long he had to decide whether to submit to the test. After Corporal Squatrito told him that his blood must be drawn within two hours, unless certain circumstances prevented it, Licensee asked to see Corporal Squatrito s legal authority for that requirement. Corporal Squatrito told Licensee he did not have the Crimes Code with him. Licensee requested Corporal Squatrito to take him to the police station so he could view the Crimes Code. Licensee also questioned why he had to sign one form and not the other. The lab technician who had been waiting during this discussion, said she had to leave, and she left. Corporal Squatrito testified that once they reached the hospital, Licensee was respectful, but then became argumentative. Corporal Squatrito claimed that when Licensee balked at signing the NIK Kit consent form, he advised Licensee that his failure to sign the NIK Kit consent form would be considered a refusal of the test. He related that he asked Licensee if he was going to take the test. He reported that Licensee remained silent and did not respond. Corporal Squatrito told Licensee that if he remained silent that would be construed as a refusal. Corporal Squatrito deemed Licensee s silence a refusal to submit to the blood test, and released Licensee to his girlfriend. Corporal Squatrito estimated that he and Licensee were at the hospital for a total of 30 to 40 minutes. Licensee, on the other hand, expressed that his exchange with Corporal Squatrito at the hospital was a respectful, healthy, back and forth interaction. He explained that he was simply trying to understand why he did not have to sign the DL-26, but he did have to sign the NIK Kit consent form. Licensee testified that he was concerned that the NIK Kit consent form was vague and did not see a need to 4 Corporal Squatrito admitted that this was his understanding at that time, but it was an incorrect statement of the law. He acknowledged at the hearing that Licensee s failure to sign the NIK Kit consent form would not have constituted a test refusal. See Reproduced Record at 24-25, 27,

6 sign it. He stated that he was hoping that the Vehicle Code would have clarified whether he had to sign the NIK Kit consent card since Corporal Squatrito could not answer that for him. He averred that he asked how long he had to submit to the blood test in order to know if he had time for Corporal Squatrito to show him the legal provision. Licensee described that, after the lab technician threw up her arms and left, he shook Corporal Squatrito s hand and said: I m not trying to be... a burden on you, I m just seeking answers. It just doesn t make sense to sign one form and not the other, so I hope there s no hard feelings. Reproduced Record (R.R.) at 40. He stated that Corporal Squatrito shook back, said [n]o hard feelings and, without mentioning that he was deemed to have refused the blood test, released him to his girlfriend s care. R.R. at 41. Licensee did not recall Corporal Squatrito telling him that his silence would constitute a refusal. Licensee averred that they were at the hospital for 15 to 20 minutes. Determinations as to the credibility of witnesses and the weight assigned to the evidence are solely within the province of the factfinder. Conflicts in the evidence are for the trial court to resolve and are improper questions for appellate review. Hasson v. Dep t of Transp., Bureau of Driver Licensing, 866 A.2d 1181, 1186 (Pa. Cmwlth. 2005) (citation omitted). Here, the trial court made the following findings relative to Licensee s refusal: 12. Corporal Squatrito advised Licensee if he refused to sign the [NIK Kit] consent, it would be considered a refusal to submit for blood draw. Corporal Squatrito told this to Licensee three separate times Corporal Squatrito asked Licensee if he would submit to a blood draw and Licensee was silent. Corporal Squatrito told Licensee that if he remained silent that would be construed as a refusal. The Licensee remained silent. Corporal Squatrito determined that Licensee had refused. 6

7 Trial Ct. Op. at 3-5. Licensee argued, and the trial court agreed, that Renwick was controlling, wherein the Pennsylvania Supreme Court held that [r]equiring a licensee to sign a form, of whatever nature, in order to consent to chemical testing, is beyond the parameters of [Section] 1547 [of the Vehicle Code,] which does not require a licensee to complete any pre-test procedure. 7 Thus, the trial court ruled that Licensee s refusal in this case to sign the NIK Kit consent form was not the equivalent of a test refusal. Renwick, 543 Pa. at , 669 A.2d at 939. However, the trial court, as the Renwick Court did, went on to examine whether, under the circumstances, Licensee s conduct represented an unqualified, unequivocal assent. The trial court acknowledged that Licensee indeed agreed to submit to a blood test, but that his behavior thereafter was so inconsistent with his previous verbal assent that such conduct [led] the [trial c]ourt to conclude the Licensee did not give an unqualified, unequivocal assent. Trial Ct. Op. at 9. The trial court specifically noted that after Licensee assented to the blood test, he became argumentative, he asked to read the DL-26, he inquired as to whether Corporal Squatrito had ever been challenged on the DL-26, he questioned how long he had to submit to the test, he challenged and wanted written proof of the two-hour time limit requesting that he be driven to the police station to review the Crimes Code and, finally, he remained silent even after being warned that his silence would be construed as a refusal to submit to the blood test. Licensee relies on Petrocsko, to support his argument that: [W]here a precondition to chemical testing (e.g. signing a hospital consent form) is linked with the performance of a chemical test, and the licensee is not informed that he can satisfy the requirements of [Section] 1547, and avoid suspension by assenting to testing alone, the question of whether a licensee has refused testing must be resolved in favor of the licensee.

8 Licensee Br. at 12. In Petrocsko, the licensee consented to a blood test, but at the hospital refused to sign a hospital consent form. The arresting officer again asked the licensee if he was going to take the test. When the licensee said no, the officer read the implied consent warning. The licensee became agitated and started walking around, so the officer recorded a refusal. The Petrocsko Court held that the licensee s refusal was inseparably related to his refusal to sign the hospital s consent form, and agreed with the trial court that DOT should only prevail in such cases if it can demonstrate a basis for the refusal other than the motorist s insistence on not signing the waiver. 5 Petrocsko, 745 A.2d at 718. This ruling is in accordance with this Court s holding in Stack v. Department of Transportation, Bureau of Driver Licensing, 647 A.2d 958 (Pa. Cmwlth. 1994) that a refusal does not occur when a motorist agrees to submit to testing but refuses to sign a hospital waiver form. Id., at 961. In the instant case, however, the trial court specified the basis for Licensee s refusal separate and apart from the waiver. The trial court held: Licensee, after promptly consenting to the blood test, became argumentative and, in essence, began challenging Corporal Squatrito. It was obvious that Licensee was either looking for some excuse or loophole to avoid taking the blood draw[,] or was trying to stall. Licensee went so far as to request [that] Corporal Squatrito take Licensee back to the Hermitage Police Station so that Licensee could review the Crimes Code. Finally, when Corporal Squatrito asked Licensee if he would submit to a blood draw. Licensee remained silent, even after Corporal Squatrito advised Licensee that his 5 The Petrocsko Court noted that although it would be helpful in determining if the refusals are separate if the police informed a licensee who refuses to sign a waiver that he is not required to do so and then ask whether the licensee still consents to undergo the chemical test without signing the waiver or other nonstatutory requirement, Stack remains good law insofar as there is no requirement for the police to do so. Id., 745 A.2d at

9 silence would be construed as a refusal. The combination of Licensee s ongoing conduct and his silence distinguishes this case from Petrocsko. Trial Ct. Op. at In Petrocsko, the licensee did not by word or action do anything indicative of a change of mind until he was asked to sign the unnecessary form releasing the hospital from liability. Id., at 716. Here, Licensee made at least 7 active attempts to question the parameters of the test and stall the test, 5 of which were unrelated to the hospital consent form. This evidence supports the trial court s conclusion that Licensee s refusal to sign the hospital consent and his refusal to take the test were independent of one another. 6 submit to the test, Licensee remained silent. Ultimately, when asked if he would Under the circumstances before us, Licensee was given a meaningful opportunity to comply with Section 1547 of the Vehicle Code. This Court has held that police are not legally required to explain to licensees in situations such as this that they are not obligated to sign a hospital waiver of liability form. Petrocsko, 745 A.2d at 717 (citing Stack). Moreover, [p]olice officers are not required to spend time either cajoling an arrestee or waiting for [a licensee] to change his mind. Dep t of Transp., Bureau of Traffic Safety v. Ferrara, 493 A.2d 154, (Pa. Cmwlth. 1985). Finally, 6 Before Licensee was presented with the hospital consent form, he asked: (1) to read the DL-26, (2) whether Corporal Squatrito had ever been challenged on the DL-26, and (3) whether refusing to sign would constitute a refusal to submit to the blood test. After being presented with the hospital consent form, Licensee inquired: (4) whether refusing to sign that form would constitute a refusal, (5) how long he had to decide, (6) to see the legal authority as to test timing, and (7) why he had to sign one form and not the other. His request to know how long he had to decide whether to undergo testing, and see the legal authority had nothing to do with the actual hospital consent form and therefore were separate and independent. We do not hold that any one of Licensee s questions is impermissible. However, in the context of this case, they cumulatively demonstrate that Licensee was questioning the parameters of the test and stalling. 9

10 it is not the province of this Court to make new or different findings of fact. Rather, we may only review the trial court s findings to determine if they are supported by substantial, competent evidence. As long as sufficient evidence exists that is adequate to support the facts found by the trial court as fact-finder, we are precluded from overturning those findings. Additionally, we must view the evidence in a light most favorable to the party that prevailed before the trial court. Reinhart v. Dep t of Transp., Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008) (citations omitted). Because the evidence substantiated the trial court s conclusion that Licensee s conduct constituted a refusal, the trial court did not err by finding that Licensee refused to submit to a blood test. Thus, the trial court s order is affirmed. ANNE E. COVEY, Judge Judge Brobson dissents. 10

11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anthony Quintal, : Appellant : : v. : : Commonwealth of Pennsylvania, : Department of Transportation, : No C.D Bureau of Driver Licensing : O R D E R AND NOW, this 30 th day of April, 2014, the Mercer County Common Pleas Court s July 24, 2013 order is affirmed. ANNE E. COVEY, Judge