Cameron v. Commonwealth

PELLEGRINI, Judge. The Pennsylvania Supreme Court in Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), recently held that because of the confusion arising out of situations in which an arrestee receives contemporaneous recitals of Miranda warnings and the implied consent law, Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547, an arrestee who requests to speak with or to call an attorney or anyone else, in response to a police request to take a breathalyzer test, must be instructed not only that his license will be suspended for one year if the arrestee refuses to take the test, but also that the rights reflected in Miranda warnings respecting criminal procedure, particularly, the right to assistance of counsel, are inapplicable to a breathalyzer test because the test constitutes civil process. The Supreme Court stated: [W]here an arrestee requests to speak to or call an attorney, or anyone else, when requested to take a breathalyzer test, we insist that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the [513] right to consult with an attorney or anyone prior to taking the test. Id., 521 Pa. at 252, 555 A.2d 878. In this appeal, James Cameron (Cameron) contends that the Bucks County Court of Common Pleas, in a de novo proceeding, erroneously applied the O’Connell test when it dismissed his appeal of a twelve month license suspension imposed by the Department of Transportation. The suspension was imposed pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547. Cameron was convicted of driving under the influence of alcohol, 75 Pa.C.S. § 3731, and does not challenge that conviction. The question of whether Cameron received the required O’Connell instruction involves an assessment of whether what was said by the Northampton Township Police to Cameron, during the course of alternating Miranda and implied consent warnings, was sufficient. At approximately 1:40 a.m. on March 16, 1989, Cameron was arrested for driving while intoxicated in violation of 75 Pa.C.S. § 3731. Thus began a series of recitals of Miranda warnings and the implied consent law. The arresting Northampton Township police officer administered Miranda warnings to Cameron and took him into custody. Cameron was asked by another officer to submit to a breathalyzer test while in the rear seat of the patrol car and was advised of the implied consent rule and its implications, both for an automatic license suspension should he refuse to take the test and as well for his conviction for driving under the influence of alcohol should he refuse to take the test. Following Cameron’s arrival at the Township police station, the arresting officer once again administered Miranda warnings, and at approximately 1:55 a.m., a certified breathalyzer officer advised Cameron of the implied consent rule, reading it verbatim from a Xerox copy. Cameron refused to take the test. Again at 2:00 a.m., the arresting officer administered Miranda warnings, and at approximately 2:05 a.m., the breathalyzer officer once again read to Cameron [514] the copy of the implied consent rule. Cameron indicated that he understood the rule and reiterated his refusal to take the test. At approximately 3:30 a.m., Cameron contacted his attorney by phone and was advised to take the test. Thereafter, Cameron indicated his willingness to take the test; however, the breathalyzer officer informed him that, because of the lapse of nearly an hour and a half since Cameron’s twice refusing to take the test at the station, Cameron’s prior refusals precluded him from taking the test. Following the first recitation of the implied consent statute at around 1:55 a.m., Cameron inquired about securing an attorney. The breathalyzer officer replied that “[a lawyer] was not necessary to take the test.” R. 15a. See also R. 33a. The trial court concluded that this exchange between Cameron and the breathalyzer officer constituted a refusal by Cameron to take the test. Cameron, having received Miranda warnings from the arresting officer following that exchange, was again asked to submit to the breathalyzer test approximately ten minutes later at 2:05 a.m. Cameron was again advised by the breathalyzer officer that “a lawyer was not to be present to take the test, that this had to be his own decision to take this test or not.” R. 16a. The trial court found that a second refusal occurred at this time, because Cameron made a knowing and conscious decision to refuse to take the test. We find that none of the statements of record made by the Township Police constitute a qualifying instruction as contemplated by O’Connell. Absent from all of these statements is a clear communication that the right to counsel referred to in Miranda warnings is inapplicable to a breathalyzer test. Telling an arrestee that a lawyer need not be present or that consulting with an attorney or anyone else is not necessary before taking the test are insufficient instructions. Telling an arrestee that he must make this decision on his own is also insufficient. None of these statements informs an arrestee adequately of the extent of the right to counsel, nor does anyone of them [515] clarify for an arrestee that the right is inapplicable to chemical testing for intoxication. Clearly indicating that the right to counsel does not extend to a breathalyzer test achieves the O’Connell court’s intent to insure that arrestees who exhibit confusion over their Miranda rights are not being misled into making uninformed and unknowing decisions to take the test. Id., 521 Pa. at 253, 555 A.2d at 878. That the police officers involved in Cameron’s arrest failed to give clear O’Connell instructions is understandable, since the incident in issue took place prior to the Supreme Court’s O’Connell decision. Formerly, a request for an attorney in response to an officer’s request that an arrestee take a breathalyzer test could be taken as a refusal. See Com., Dept. of Transp. v. Ferrara, 89 Pa.Cmwlth. 549, 493 A.2d 154 (1985) (citing King v. Department of Transportation, Bureau of Traffic Safety, 81 Pa.Commonwealth Ct. 177, 472 A.2d 1196 (1984)). However, just as we expressed concern in Ferrara over the potential for unfair manipulation of arrestees who experience legitimate confusion as to their rights, the O’Connell court, when dictating that police bear the onus of affording arrestees a qualifying instruction, also expressed concern that situations like the matter under review are fraught with pitfalls for the arrestee who is unaware of the distinction between criminal and civil procedures. O’Connell, 521 Pa. at 252, 555 A.2d at 877. The O’Connell court has indicated that the law has an obligation to demystify this situation. Accordingly, an arrestee is owed in the very least a clear explanation of his rights and, particularly, an instruction that the right to counsel does not apply to a breathalyzer test. The Supreme Court’s holding in O’Connell was based upon a concern that without this instruction, individuals would be penalized for exercising the very rights which they believed that police officers were informing them that they had. Because we have found that the instruction given to Cameron was legally insufficient to provide the insurance [516] sought by the Supreme Court in 0 ’Connell, we reverse the order of .the Bucks County Court of Common Pleas. ORDER AND NOW, this 22nd day of October, 1990, the order of the Court of Common Pleas of Bucks County in the above captioned matter docketed at No. 89-3371-12-6 is hereby reversed.