IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cara Ann Lombardo, : Appellant : : v. : No C.D : Submitted: May 8, 2015 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: June 8, 2015 Cara Ann Lombardo (Licensee) appeals the order of the Northampton County Court of Common Pleas (trial court) denying her appeal from a one-year suspension of her operating privilege for refusing to submit to chemical testing after her arrest for driving under the influence (DUI) in violation of Section 3802 of the Vehicle Code, 75 Pa. C.S For the reasons that follow, we affirm. 1 Section 1547(b) of the Vehicle Code, 75 Pa. C.S. 1547(b), provides, in relevant part: (b) Suspension for refusal.- (1) 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, (Footnote continued on next page )

2 On December 18, 2011, Licensee was arrested by an officer with the Moore Township Police Department on suspicion of DUI and was transported to the Easton Area DUI Center for the collection of a blood sample which would be used to determine her blood alcohol content (BAC). After she was given the Implied Consent Warnings, Licensee was requested to submit to the blood test. However, Licensee refused to provide a blood sample stating that she would not submit to the test because she had a phobia of needles. As a result, Licensee received notice from the Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) that her operating privilege was suspended for a period of one year pursuant to Section 1547(b)(1)(i) of the Vehicle Code for refusal to submit to testing. Licensee appealed the license suspension to the trial court. 2 In the trial court, Licensee did not contest that PennDOT had sustained its burden of demonstrating that Licensee s operating privilege should be suspended under Section 1547 of the Vehicle Code by showing that she: (1) was arrested for DUI by a police officer who had reasonable grounds to believe that she (continued ) the department shall suspend the operating privilege of the person as follows: (i) Except as set forth in subparagraph (ii), for a period of 12 months. 2 Licensee filed her appeal with the Schuylkill County Court of Common Pleas, but the matter was transferred to the trial court. 2

3 was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol in violation of Section 3802; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension and would result in enhanced penalties if she was later convicted of violating Section See Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005). Rather, Licensee argued that she did not make a knowing and conscious decision to refuse the chemical testing because she was physically incapable of submitting to the chemical testing of her blood due to her fear of needles. See id. (holding that once PennDOT s burden is met, a licensee may avoid the mandatory license suspension by proving that: (1) she was physically incapable of completing the requested testing; and (2) her refusal was not knowing and voluntary.) In support, Licensee presented the deposition testimony of Jude F. Sidari, M.D. (Dr. Sidari), who was qualified as an expert in internal medicine. Dr. Sidari testified that he has practiced internal medicine for over 20 years and is board eligible in internal medicine. He stated that he began treating Licensee in December 2010 for chronic Attention Deficit Disorder (ADD). He testified that he asked Licensee to submit to bloodwork as part of her assessment and that she refused stating that She has a deep phobia of getting stuck with a needle. (Reproduced Record at 13a). He stated that he was ultimately able to draw Licensee s blood after she was given anti-anxiety medication. 3

4 Dr. Sidari conceded that he is not a psychiatrist and that Licensee would not suffer any physical consequences if she were to submit to a blood test, but opined that Licensee could not override her needle phobia with her conscious mind. In addition, he stated that at the time of her arrest, Licensee was taking Adderall and patients on the medication are advised not to consume alcohol because, when combined, they impair the patient s judgment. Nonetheless, Dr. Sidari acknowledged that Licensee would have understood the specific warnings pertaining to a request for chemical testing and that she would lose her license by not submitting to chemical testing. The trial court denied Licensee s appeal, explaining that it rejected Licensee s expert testimony that she was consciously unable to submit to the requested blood test based on Dr. Sidari s deposition testimony and video of Licensee s refusal taken at the Easton Area DUI Center. Regarding Dr. Sidari s testimony, the trial court noted that Licensee was able to undergo a blood test shortly before her DUI arrest with the aid of a small dose of anti-anxiety medication. As a result, the court stated, We therefore reject the notion that [Licensee] s fear at the prospect of a blood draw was sufficiently greater than that of an ordinary citizen to justify her refusal to submit to chemical testing. (Trial Court 9/24/14 Order at 5). Regarding the DUI Center video, the trial court explained that [Licensee] did not justify her refusal to submit to the blood draw solely on her needle phobia, and that [s]he also stated several times that the Moore Twp. Police Department had subjected her to sexual harassment, and that she had done nothing wrong. (Id. at 5-6). The trial court concluded that her alleged mistreatment was not relevant to her physical or psychological capacity to 4

5 submit to chemical testing, and that she ha[d] not established that she was physically unable to take the test or incapable of making a knowing and conscious refusal. (Id. at 6). On appeal, 3 Licensee argues that her operating privileges should be reinstated because competent medical evidence showed that her needle phobia rendered her physically unable to submit to the requested blood test and she notified police of her condition. She also asserts that even though the trial court did not credit the medical evidence, 4 none was necessary in this case because her needle phobia 5 was obvious based on her actions as depicted in the video from the DUI Center so she proved her physical incapability to submit to the blood test even in the absence of credited medical evidence. 3 This Court s scope of review is limited to determining whether necessary findings of the trial court are supported by substantial evidence and whether the trial court committed an error of law or abused its discretion. Martinovic, 881 A.2d at 34 n.6. 4 As the fact finder, the trial court makes the necessary credibility determinations and may accept or reject the testimony of any witness in whole or in part; its determinations in this regard are not subject to our review. Finney v. Department of Transportation, Bureau of Driver Licensing, 721 A.2d 420, 423 (Pa. Cmwlth. 1998). 5 A phobia is [a]ny objectively unfounded morbid dread or fear. Stedman's Medical Dictionary 1187 (25th ed. 1990). Contrary to Licensee s assertion, her purported impairment was not an obvious physical condition that was readily apparent and did not require competent medical evidence in support. See Wright v. Department of Transportation, Bureau of Driver Licensing, 788 A.2d 443, (Pa. Cmwlth. 2001), appeal denied, 796 A.2d 989 (Pa. 2002) ( Unlike the skin grafts of the driver in Fleming[ v. Department of Transportation, Bureau of Driver Licensing, 547 A.2d 488 (Pa. Cmwlth. 1988)], Wright s alleged extreme reaction was not obvious: he did not display an arm illustrating the claimed problem. DOT notes that, despite his assertions of extreme reactions while hospitalized and afterward, Wright offered no evidence in the form of medical testimony or medical records to support his claims. ). 5

6 However, as this Court has explained: In addressing [the licensee] s fear of invasive procedures such as a blood test, we note that [t]his Court has consistently held that the fear of needles is not justification for refusal to take a required blood test. Department of Transportation, Bureau of Driver Licensing v. Mease, [610 A.2d 76, 78 (Pa. Cmwlth. 1991)]. Like [the licensee in this case], the licensee in Mease had an extreme fear of needles thereby rendering him unable to receive an injection, even for a diagnostic medical procedure. There, this Court, quoting Leberfinger v. Department of Transportation, Bureau of Traffic Safety, [587 A.2d 46, 47 (Pa. Cmwlth. 1991)], stated, the additional factor of medical evidence establishing a substantial fear of needles is not of such legal significance that it negates the implied consent of a licensee to submit to the blood test for driving under the influence. Therefore, [the licensee] failed to satisfy his burden of proving by competent medical evidence that he was physically unable to take the blood test or not capable of making a knowing and conscious refusal. Mease, 610 A.2d at 79. Jacobs v. Department of Transportation, Bureau of Driver Licensing, 695 A.2d 956, 958 (Pa. Cmwlth.), appeal denied, 700 A.2d 443 (Pa. 1997). In sum, it is settled that any aversion or fear of needles, even if supported by medical evidence, does not constitute an excuse or justification for refusing a blood test. Mease, 610 A.2d at 79; Leberfinger, 587 A.2d at 47. We will not accede to Licensee s request to distinguish or reconsider our prior case law. 6

7 Moreover, in this case, the trial court specifically rejected as not credible Licensee s medical evidence that purportedly established that she was physically incapable of submitting to the chemical testing of her blood. Further, Dr. Sidari conceded that Licensee would not suffer any physical consequences if she were to submit to a blood test. Additionally, Dr. Sidari testified that Licensee would have understood the specific warnings pertaining to a request for chemical testing, that she would lose her license as a result of refusing to submit to chemical testing, and that she would be subject to further criminal penalties if prosecuted for DUI. As a result, the trial court did not err in determining that Licensee failed to sustain her burden of proving that she was physically incapable of completing the requested testing or that her refusal was not knowing and voluntary. Accordingly, the trial court s order is affirmed. DAN PELLEGRINI, President Judge 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cara Ann Lombardo, : Appellant : : v. : No C.D : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing : O R D E R AND NOW, this 8 th day of June, 2015, the order of the Northampton County Court of Common Pleas in the above-captioned matter is affirmed. DAN PELLEGRINI, President Judge