A.K. Magill v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alesha K. Magill, : Appellant : : v. : No. 988 C.D. 2020 : Submitted: April 16, 2021 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: August 9, 2021

Alesha K. Magill (Licensee) appeals from the September 22, 2020 Order of the Court of Common Pleas of Cumberland County (trial court), which dismissed Licensee’s appeal and reinstated the one-year suspension of Licensee’s operating privilege imposed by the Department of Transportation (Department), Bureau of Driver Licensing (Bureau), under Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1)(i), commonly referred to as the Implied Consent Law.1 Per

1 Section 1547(b)(1)(i) states in relevant part:

(1) If any person placed under arrest for a violation of Section 3802 [of the Vehicle Code, 75 Pa.C.S. § 3802 (relating to driving under the influence of alcohol or controlled substance)] is requested to submit to chemical testing and refuses to do (Footnote continued on next page…)

Section 3802 of the Vehicle Code, 75 Pa.C.S. § 3802, the Bureau suspended Licensee’s operating privilege for refusal to submit to a chemical test in connection with her arrest for driving under the influence. Upon review, we affirm the trial court’s Order. The facts as found by the trial court in its opinion issued pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a), (Rule 1925(a) Opinion), are as follows. “At 4:25 a.m. on December 27, 2019, Officer Ethan Paulus of the Mechanicsburg Police Department was dispatched to a vehicular crash on East Main Street in Mechanicsburg involving a moving vehicle and a parked vehicle.” (Rule 1925(a) Opinion (Op.) at 1.) When Officer Paulus arrived on scene, Licensee acknowledged operating the moving vehicle that struck the parked vehicle. At the time, Licensee was leaning against the rear bumper of one of the vehicles. Officer Paulus instructed Licensee and the owner of the parked vehicle, who was also at the scene, to move to the sidewalk. When told to do so, Licensee “simply stared” at Officer Paulus in response. (Id. at 2.) When asked again, Licensee obliged, and Officer Paulus observed Licensee having trouble maintaining balance before nearly tripping over the curb. Officer Paulus observed the odor of alcohol on Licensee’s breath, Licensee’s bloodshot eyes, and how Licensee was swaying as Licensee stood on the sidewalk. When asked if and where Licensee was drinking, Licensee responded with “down the road” and, subsequently, “at a friend’s house.”

so, the testing shall not be conducted but upon notice by the police officer, the [D]epartment shall suspend the operating privilege of the person as follows:

(i) Except as set forth in subparagraph (ii), for a period of 12 months. 75 Pa.C.S. § 1547(b)(1)(i).

(Id.) Officer Paulus then conducted field sobriety tests, which Licensee performed poorly. In addition to losing balance several times, Licensee failed to follow directions and exhibited impatience with Officer Paulus during the tests. As a result of Licensee’s poor performance, Officer Paulus concluded that Licensee was too intoxicated to drive and asked Licensee several times to submit to a preliminary breath test, which Licensee refused. Officer Paulus placed Licensee in custody and asked Licensee to submit to a chemical blood test, which Licensee also refused. Officer Paulus read the DL-26B2 form warning to Licensee verbatim, and Licensee again refused. Officer Paulus then transported Licensee to the Cumberland County Prison for booking, where Officer Paulus asked Licensee to sign the DL-26B form. Licensee requested to look at the DL-26B form, and Officer Paulus handed it to Licensee. Licensee looked at it and asked what it was, and Officer Paulus explained that it was the same form Officer Paulus had read to

2 The DL-26B form that was read to and signed by Licensee provided, in relevant part:

It is my duty as a police officer to inform you of the following:

1. You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code.

2. I am requesting that you submit to a chemical test of blood.

3. If you refuse to submit to the blood test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, your operating privilege will be suspended for up to 18 months . . . .

4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to a blood test, you will have refused the test.

(Reproduced Record at 34a.)

Licensee, explained again what it was, and read it again. Officer Paulus then requested the DL-26B form back and stated it would not be read again because Officer Paulus concluded that Licensee already refused. On January 15, 2020, the Department mailed Licensee a notice, advising Licensee of the suspension of Licensee’s operating privilege following Licensee’s refusal to submit to chemical testing. Licensee then filed an appeal to the trial court, which held a de novo hearing. At the hearing, Licensee testified that Licensee worked that evening tending bar and was driving home but could not remember leaving work, driving, or striking a parked vehicle. Licensee vaguely recalled being placed in the police vehicle but did not remember being asked to submit to a chemical test. When asked about submitting to a blood test, Licensee stated “[I] kind of remember at the booking or police station . . . [being] handed that paper . . . and not really being able to read it[.]” (Rule 1925(a) Op. at 3.) Licensee could not read the DL-26B form due to not having glasses and because Licensee was “out of it.” (Id.) Licensee also testified to being on medication for bronchitis, which may have still been in Licensee’s system. Licensee also speculated that someone “put something” in Licensee’s “shifties,” which Licensee explained were two free drinks Licensee was permitted to have at the end of the shift and which Licensee drank prior to leaving work. (Id. at 3-4.) Licensee did not offer any medical evidence of either possibility.3

3 When a licensee alleges a medical condition thereby rendering the licensee incapable of performing tests:

[T]he licensee must present competent, unequivocal expert evidence as to the severity of his or her emotional state following the drunk driving arrest and how that severe emotional state precluded licensee from recalling something as (Footnote continued on next page…)

On appeal,4 Licensee argues the trial court erred by: (1) finding that Licensee refused to submit to chemical testing; (2) finding that Licensee was warned by the officer that Licensee’s license will be suspended if Licensee refused to submit to chemical testing; (3) finding that expert testimony was required to assess whether any perceived refusal, by Licensee, was knowing and conscious; (4) failing to find that any perceived refusal was not knowing and conscious; and (5) failing to find that Licensee’s overall conduct demonstrated a willingness to assent to chemical testing. Licensee argues that, although an officer is not required to give multiple opportunities to consent to chemical testing, if the officer “does provide a ‘second chance[,]’[] [Licensee] should be afforded an opportunity to comply.” (Licensee’s Brief (Br.) at 6.) Licensee contends that Officer Paulus read the DL-26B form to Licensee again upon arriving at the booking station and nothing in the record shows that Licensee refused after being read the DL-26B form a second time. (Id. at 8.) Licensee concedes that the statute does not “require an officer to give an individual multi[ple] opportunities to comply with the chemical test,” but states there is nothing in the statute that prohibits an officer from doing so. (Id. at 8-9 (citing 75 Pa.C.S. § 1547(b)).) Therefore, Licensee argues that “if an officer reads the DL-26[B] a second time, the officer has reopened the door and needs to give a ‘meaningful opportunity’ or a ‘reasonable and sufficient opportunity’ to comply.” (Id. at 9 (citing

significant as a medical condition which renders him or her incapable of performing the breathalyzer test.

Hatalski v. Dep’t of Transp., Bureau of Driver Licensing, 666 A.2d 386, 390 (Pa. Cmwlth. 1995). 4 This Court’s scope of review is “limited to determining whether [the trial court] committed an error of law, whether [the trial court] abused its discretion, or whether the findings of fact are supported by substantial evidence.” Garlick v. Dep’t of Transp., Bureau of Driver Licensing, 176 A.3d 1030, 1035 n.6 (Pa. Cmwlth. 2018).

Nardone v. Dep’t of Transp., Bureau of Driver Licensing, 130 A.3d 738, 749 (Pa. 2015)).) The Department responds that Officer Paulus read the Implied Consent warnings to Licensee while Licensee was seated in Officer Paulus’s patrol car, and in response to Officer Paulus’s request that Licensee consent to a blood test, Licensee told Officer Paulus no. (Department’s Br. at 10.) The Department contends that “[a]nything substantially less than an unqualified, unequivocal assent by [a] licensee to the officer’s request is a refusal of chemical testing.” (Id. at 9 (citing Dep’t of Transp. v. Renwick, 669 A.2d 934, 939 (Pa. 1996)).) Additionally, the Department cites the trial court’s finding that Licensee refused Officer Paulus’s request for a chemical test. (Id. at 11.) Furthermore, “neither Officer Paulus nor [Licensee] testified that the officer offered [Licensee] a second opportunity at the booking center to submit to a chemical test or that [Licensee] ever consented to submit to chemical testing[,]” (id. at 13), and, therefore, Licensee’s argument is without merit. Having reviewed the record, the arguments of the parties, and the relevant law, we conclude that the appellate issues have been ably resolved in the thorough and well-reasoned opinion of Judge Christylee L. Peck. Therefore, this Court affirms on the basis of the trial court’s Opinion in Magill v. Department of Transportation, Bureau of Driver Licensing (C.C.P. Cumberland, No. 2020-01467, filed December 2, 2020).

_____________________________________ RENÉE COHN JUBELIRER, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alesha K. Magill, : Appellant : : v. : No. 988 C.D. 2020 : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

ORDER

AND NOW, August 9, 2021, the Order of the Court of Common Pleas of Cumberland County dated September 22, 2020 is AFFIRMED on the basis of the opinion in Magill v. Department of Transportation, Bureau of Driver Licensing (C.C.P. Cumberland, No. 2020-01467, filed December 2, 2020).

_____________________________________ RENÉE COHN JUBELIRER, Judge