In re Appeal of Attleberger

DOYLE, Judge. Raymond L. Attleberger appeals an order of the Court of Common Pleas of Venango County sustaining the one-year suspension of his operating privileges for refusing to submit to a chemical test pursuant to Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b).1 At approximately 2:00 a.m. on May 30, 1989, Lieutenant Richard O. Goldsmith of the City of Franklin Department of Public Safety observed two motorcycles pass him in the opposite direction, one of which was being operated without headlights or taillights. He followed the two motorcycles to investigate, and, when they eventually stopped at the Attleberger’s residence, Lt. Goldsmith approached Attleberger and observed that he appeared to be unsteady getting off his motorcycle. Lt. Goldsmith further noticed an odor of alcohol on Attleberger’s breath and that Attleberger’s speech was slurred. He requested that Attleberger perform field sobriety tests and, following their unsatisfactory performance, administered a preliminary breath test (PBT) with an Alco-Sensor 3, which registered a blood alcohol reading of .168 percent. Lt. Goldsmith then placed Attle [332] berger under arrest for driving under the influence of alcohol. Attleberger was transported to Franklin Regional Medical Center for a blood test, which he refused to take, after having been told that he would lose his driver’s license for one year. Attleberger testified at the de novo hearing before President Judge White that he refused the blood test even after being warned because he felt that he had already taken the PBT and did not need to take another test.2 Lt. Goldsmith testified that he read Attleberger the implied consent law several times but that Attleberger persisted in refusing to submit to the test.3 Nowhere in any of the [333] testimony was there any indication that Attleberger was advised at any time of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), nor did Attleberger at any time request to call or speak to anyone. Subsequent to this incident the Department of Transportation (Department) sent him notice that his license was suspended for one year for failure to submit to a chemical test. Attleberger appealed to the trial court which upheld the suspension on the basis that the PBT is not a chemical test for purposes of consenting to a chemical test under Section 1547 of the Vehicle Code, and that Attleberger’s refusal to take the blood test on the basis that he had already taken the PBT did not result in the “confusion” which the Supreme Court contemplated in Department of Transportation, Bureau of Traffic Safety, v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), and Commonwealth v. McFadden, 522 Pa. 100, 559 A.2d 924 (1989), so as to preclude a knowing and conscious refusal. The trial court thus dismissed Attleberger’s appeal. Attleberger has appealed to our Court. Attleberger argues on appeal that he was confused over his legal rights with regard to taking a chemical test after having taken the PBT and that he deserves protection from such confusion under the penumbra of O’Connell. In O’Connell, the licensee was arrested and was advised immediately of his Miranda rights, including his constitutional right to counsel. He was then asked to submit to a breathalyzer test and refused because he had not been permitted to contact his attorney. The trial court in O’Connell accepted the licensee’s testimony as credible. The Supreme Court determined that the licensee was unfairly confused when he was given his Miranda warnings and [334] immediately afterwards was asked to submit to a breathalyzer test. The court held that when this sequence of events occurs, law enforcement officials must inform a licensee that he/she is not entitled to consult with an attorney or anyone else before taking a breathalyzer test.4 We do not agree that O’Connell, should be extended to the present case. Section 1547(k) of the Vehicle Code, 75 Pa.C.S. § 1547(k) provides: Prearrest breath test authorized. — A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary breath test. Refusal to submit to the test shall not be considered for purposes of subsections (b) and (e). Furthermore, in Wall v. Commonwealth, 114 Pa.Commonwealth Ct. 397, 539 A.2d 7 (1988), we held: A preliminary breath test in the field, performed on an instrument which detects the presence of alcohol, is not one of the chemical tests of breath, blood or urine deemed to be consented to by Section 1547(a). Attleberger, of course, was wrong to have assumed that he did not have to submit to the blood-alcohol test subsequent to having taken the preliminary breath test. Any confusion he may have experienced was not due to any statements made by Lt. Goldsmith, nor to any confusion in [335] any manner related to his constitutional rights, but rather, as President Judge White explained, was of his own creation. O’Connell and McFadden do not add a safety net to someone falling into such self-induced and self-destructive confusion about what the law is or should be. The dissent misstates our holding when it mistakenly explains (dissent Op. p. 30) that “the majority ... would restrict O’Connell by holding that the arrestee can only be confused when Miranda has been given or when the arrestee requests to speak with an attorney or someone else.” To the contrary, it is only when a licensee is confused over his constitutional rights, (not any confusion) that an affirmative duty arises on the part of the police to advise a licensee that those constitutional rights do not apply under the implied consent law. Such confusion could be caused in several ways and may exist for different reasons, for example, (a) because of the close approximation of Miranda warnings to the police officer’s request to take an intoxilyzer test, or, (b) because of being “Mirandized-byT.V.” and requesting to speak to an attorney even though no Miranda warnings were given, or, (c) because of confusion for other reasons not yet judicially encountered which confusion could be overtly manifested in some other way. The O’Connell confusion, however, can not exist merely by a licensee’s standing mute (even though a citizen has the right to remain silent when charged with a criminal offense). More important, such confusion concerning constitutional rights does not exist when a trial court has found that the licensee was confused for some other reason, as in this case where the driver himself explained he did not believe he had to take another test because he had already “blowed in this thing” while taking field sobriety tests. To hold to the contrary in this case would eviscerate and overcome statutory language that commands that such a preliminary test “shall be in addition to any other requirements of this title.” 5 [336] Rather than eliminate confusion, the dissent would require the police in every case to explain that constitutional rights do not apply, even when no Miranda warnings were given, which we suggest would lead to or create the very confusion that is sought to be avoided. Further, and more significant, is the Supreme Court’s admonition in O’Connell, which the dissent quotes (dissent Op. p. 29): Since the course of conduct of the police creates the confusion in these cases, it is appropriate to place the duty on them to clarify the extent of the right of counsel____ (Emphasis added.) Nothing in the factual background of this case can be remotely related to the course of conduct of the police officers. The Licensee in this case simply believed he did not have to submit to the blood test because he had already taken a breathalyzer test; no explanation by the police regarding his constitutional right to call an attorney, and then the further advice that he did not have that right before taking the intoxilyzer test, would have removed the mist of that confusion nor cleared up the transparent “error” on the part of the Licensee.6 Affirmed. ORDER NOW, November 28, 1990, the order of the Court of Common Pleas of Venango County in the above-captioned matter is hereby affirmed. Footnotes [1] Section 1547(b) of the Vehicle Code provides for the suspension of a driver’s license for a period of one year upon a licensee’s refusal to submit to chemical testing to determine blood alcohol content. [2] Attleberger’s testimony on direct examination was as follows: Q Did he [Lt. Goldsmith] tell you that he wanted you to supply a sample of your blood at the hospital? A He told me that up in my driveway, and I told him that I wasn’t taking no blood tests. I have a heart condition and I didn’t want any needle stuck in me. I was tired from riding all day, and I already took the breath test, so why would I need to take another test. Q What do you mean by that? A Well, If I already took a breath test, why do I need to be bothered taking another test. Q What made you think you took a breath test? A I blowed in this thing, and he game me a reading which was inaccurate. I hadn’t hardly drank that day. Q You thought you took a test on your breath?. A If you blow into a thing with your breath, he told you a certain reading at the time, that’s a breath test. Wouldn’t anybody think so? Q Is that the reason you refused your blood test? A Ypq (N.T. pp. 15-16). On cross-examination his testimony was: Q Did you understand at that point when Lt. Goldsmith said to you if [you] did not submit to a test you would lose your license, did you understand what he was telling you? A That I knew that my stepson had only taken a breath test. Q I am not talking about your stepson. I am asking you what you understood Lt. Goldsmith telling you that evening. Did you understand the consequences when he told you if you refused that you would lose your license for a year, did you understand that warning? A I understood that he said that, but I knew I already took the breath test so I didn’t think it was true. (N.T. p. 18). [3] Lt. Goldsmith’s testimony on direct examination was as follows: Q Did you feel he understood the warning you had given to him? [333] A Yes. He turned around and he said, "You can shove this up your ass.” Q How many times did you warn Mr. Attleberger? A Probably three or four times in the laboratory at the hospital. Q Okay. At that point did you then take that to be a refusal? A Yes, I did. (N.T. p. 6). [4] In Department of Transportation, Bureau of Driver Licensing v. Fiester, 136 Pa.Commonwealth Ct. 342, 583 A.2d 31 (1990, contemporaneously with this opinion), we held that where Miranda warnings precede or are given in close approximation to the implied consent warnings and the chemical test request such a juxtaposition is per se confusing. [5] See 75 Pa.C.S. § 1547(k). [6] The dissent explains (dissent Op. p. 29) that the O’Connell decision of this Court placed the duty of explanation on the police to avoid the "manipulation of arrestees who may be under legitimate confusion concerning their rights." First, it was that decision which the Supreme Court reversed in Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), and more important, we do not believe we sanction "such manipulation" by the police in this case where the record is completely devoid of any such action on the part of the police in the first place.