I. Hanna v. Bureau of Driver Licensing ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Isaac Hanna :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, : No. 1772 C.D. 2019
Appellant : Submitted: June 12, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE ANNE E. COVEY, Judge2
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: April 19, 2021
The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (PennDOT) appeals from the Cumberland County
(County) Common Pleas Court’s (trial court) November 19, 2019 order sustaining
Isaac Hanna’s (Licensee) appeal and rescinding his driver’s license suspension.
PennDOT presents one issue for this Court’s review: whether the trial court erred by
holding that Licensee did not refuse to take a chemical blood test. After review, this
Court reverses.
On December 22, 2018, Lower Allen Township Police Officer
Kimberly Floyd (Officer Floyd) arrested Licensee for Driving Under the Influence
(DUI)3 and transported him to Carlisle Regional Medical Center (Carlisle Hospital)
1
This matter was assigned to the panel prior to Judge Leavitt completing her term as
President Judge.
2
This case was reassigned to the opinion writer on March 16, 2021.
3
The parties stipulated that Officer Floyd had reasonable grounds to believe that Licensee
was operating a vehicle while under the influence of alcohol or a controlled substance.
for a chemical blood test. En route to Carlisle Hospital, Officer Floyd and Licensee
conversed in English. Upon arrival at Carlisle Hospital, Officer Floyd took Licensee
to the blood draw room and read him the Implied Consent Warnings (Form DL-26).4
Licensee asked Officer Floyd to read Form DL-26 again more slowly. See
Reproduced Record (R.R.) at 21a. Thereafter, Licensee said, for the first time, that
he did not understand English very well, and requested a translator.5 See id. Officer
Floyd called County Communications and requested Language Line to translate for
Licensee in Arabic. See id. Officer Floyd read Form DL-26 “to the translator in
pieces,” and the translator repeated it to Licensee in Arabic. Id. Licensee requested
the translator repeat the last portion of Form DL-26, which states:
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.
R.R. at 46a (emphasis added). Nevertheless, Licensee asked the translator what he
should do. See R.R. at 21a. At that point, Officer Floyd deemed Licensee’s conduct
a refusal to submit to chemical testing. See id.
On January 10, 2019, PennDOT issued Licensee an Official Notice of
Suspension of Driving Privilege (Notice) for one year, effective March 28, 2019.
Licensee appealed from the Notice to the trial court. On September 26, 2019, the
trial court held a hearing. On November 19, 2019, the trial court sustained
4
The Implied Consent Warnings are the warnings established in 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.
5
Licensee speaks Arabic. See R.R. at 21a. Officer Floyd testified that Licensee never
indicated before this moment that he did not understand any of her questions. See R.R. at 20a.
2
Licensee’s appeal and rescinded his driver’s license suspension. PennDOT appealed
to this Court.6,7
Initially, Section 1547(a) of the Vehicle Code provides:
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 or blood 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 in violation of [S]ection[s]
1543(b)(1.1) (relating to driving while operating privilege
is suspended or revoked), 3802 (relating to driving under
[the] influence of alcohol or [a] controlled substance) or
3808(a)(2) (relating to illegally operating a motor vehicle
not equipped with ignition interlock) [of the Vehicle
Code].
75 Pa.C.S. § 1547(a) (emphasis added). The Pennsylvania Supreme Court has
declared:
Driving in Pennsylvania is a civil privilege conferred on
state residents who meet the necessary qualifications.
Under the terms of the Implied Consent Law, one of the
necessary qualifications to continuing to hold that
privilege is that a motorist must submit to chemical
sobriety testing when requested to do so, in accordance
with the prerequisites of the Implied Consent Law, by an
authorized law enforcement officer. The obligation to
submit to testing is related specifically to the motorist’s
continued enjoyment of the privilege of maintaining his
operator’s license.
6
“Our review is to determine whether the factual findings of the trial court are supported
by [substantial] evidence and whether the trial court committed an error of law or abused its
discretion.” Renfroe v. Dep’t of Transp., Bureau of Driver Licensing, 179 A.3d 644, 648 n.3 (Pa.
Cmwlth. 2018).
7
Licensee did not file a brief with this Court.
3
Dep’t of Transp., Bureau of Driver Licensing v. Scott, 684 A.2d 539, 544 (Pa. 1996)
(citation omitted) (emphasis added).
PennDOT argues that since, by his conduct, Licensee refused to submit
to the requested chemical test, the trial court erred by ruling to the contrary.
This Court has held:
“The question of whether a licensee refuses to submit to a
chemical test is a legal one, based on the facts found by
the trial court.” Nardone v. Dep’t of Transp., Bureau of
Driver Licensing, . . . 130 A.3d 738, 748 (Pa. 2015); see
also Park v. Dep’t of Transp., Bureau of Driver Licensing,
178 A.3d 274, 281 (Pa. Cmwlth. 2018). The question of
refusal by a licensee to consent to chemical testing
“turn[s] on a consideration of whether the [licensee’s]
overall conduct demonstrates an unwillingness to
assent to an officer’s request for chemical testing.”
Nardone, 130 A.3d at 749.
Factor v. Dep’t of Transp., Bureau of Driver Licensing, 199 A.3d 492, 496-97 (Pa.
Cmwlth. 2018) (emphasis added).
Pennsylvania courts have long and consistently held that
anything less than an unqualified, unequivocal assent
to submit to chemical testing constitutes a refusal to
consent thereto. See Dep’t of Transp., Bureau of Driver
Licensing v. Renwick, . . . 669 A.2d 934, 939 (Pa. 1996);
see also McKenna v. Dep’t of Transp., Bureau of Driver
Licensing, 72 A.3d 294 (Pa. Cmwlth. 2013) (licensee’s
questioning police regarding consequences of refusal and
refusing to sign consent form constituted refusal to
consent to chemical testing); Hudson v. Dep’t of Transp.,
Bureau of Driver Licensing, 830 A.2d 594 (Pa. Cmwlth.
2003) (repeated interruption and aggressive behavior
while being read warnings constituted a refusal to consent
to chemical testing). Further, an explicit refusal is not
required to find a licensee refused to consent to
chemical testing; “a licensee’s conduct may constitute a
refusal.” Park, 178 A.3d at 281; see also Walkden v. Dep’t
of Transp., Bureau of Driver Licensing, 103 A.3d 432, 440
(Pa. Cmwlth. 2014) (a general unwillingness to submit to
4
testing demonstrated by a licensee’s overall conduct
demonstrated a refusal to consent to chemical testing).
Factor, 199 A.3d at 497 (emphasis added).
Here, Officer Floyd explained why she contacted the translator:
I was trying to give him the benefit of the doubt, just trying
to help him out. He requested it so. [sic] I do understand
that after the first time, if he does not submit to the blood
test then that is a refusal. I was just being courteous to
him.
R.R. at 24a. Officer Floyd was correct. This Court has held: “All that is required is
that the officer read the warnings to the licensee and that the licensee be given a
meaningful opportunity to comply with the Implied Consent Law.”8 Park, 178 A.3d
at 281.
In the instant case, Officer Floyd read the warnings to Licensee three
separate times. At no point did Licensee “assent to submit to chemical testing.”
Factor, 199 A.3d at 497. Rather, he asked that the warnings be repeated. Further,
it was not until after the second time Officer Floyd read him the warnings that
Licensee asserted that he did not understand English well. After having the warnings
translated, Licensee asked the translator what he should do. Clearly, Licensee
“demonstrate[d] through his overall conduct a general unwillingness to submit to
testing.” Walkden, 103 A.3d at 440. Because Officer Floyd testified that Licensee
did not make an unqualified, unequivocal assent to chemical testing, PennDOT
proved Licensee refused chemical testing. Factor; see also Lanthier v. Dep’t of
Transp., Bureau of Driver Licensing, 22 A.3d 346 (Pa. Cmwlth. 2011) (where the
licensee contended at trial that she did not make a knowing and conscious refusal
because she could not hear the trooper read her the warnings, this Court concluded
that the trooper’s testimony that he spoke with the licensee merely minutes before
8
Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1)(i).
5
requesting she submit to chemical testing, that he requested the licensee submit to
chemical testing three times (twice in the ambulance and once at the hospital), and
that he interpreted licensee’s failure to respond as a refusal, was sufficient for
PennDOT to prove the licensee refused chemical testing).9
The Dissent relies upon Solomon v. Department of Transportation,
Bureau of Driver Licensing, 966 A.2d 640 (Pa. Cmwlth. 2009), for its conclusion
that PennDOT failed to prove an explicit refusal to take the test. In Solomon, when
the police officer asked the licensee if he would submit to a chemical test, the
licensee responded “go f*** yourself, and do what you’ve got to do.” Id. at 641.
The police officer deemed that to be a refusal.
The Solomon Court held:
Although [the licensee’s] expletives were inappropriate,
his response as a whole was certainly ambiguous and not
an explicit refusal.[10] [The licensee’s] response could
have been fairly taken to mean go ahead with the
chemical test. The officer should have made an attempt
at that point to confirm whether [the licensee] would
submit to testing. Instead, the officer escorted him out of
the room and immediately deemed [it] a refusal. This fact
further illustrates PennDOT’s failure to prove that
Solomon was offered “a meaningful opportunity to
comply.” See Petrocsko [v. Dep’t of Transp., Bureau of
Driver Licensing, 745 A.2d 714, 716 (Pa. Cmwlth. 2000)].
Accordingly, the trial court did not err in holding that
PennDOT failed to prove that [the licensee] refused
chemical testing.
Solomon, 966 A.2d at 643 (emphasis added).
9
In Lanthier, this Court concluded that the licensee had the burden to prove that she did
not make a knowing and conscious refusal. The Lanthier Court, however, noted that had PennDOT
been required to prove that licensee refused testing, it had sustained that burden as well.
10
“[A]n explicit refusal is not required to find a licensee refused to consent to chemical
testing[.]” Factor, 199 A.3d at 497.
6
Here, after Officer Floyd read the warnings to Licensee, not once, but
twice, Licensee then requested a translator. Officer Floyd testified that after the
translator repeated the warnings, “[Licensee] said to [the translator], what do I do?
. . . I asked her, I said what did he just tell you? And she said that he was asking her
what to do.” R.R. at 25a. The trial court determined: “This was the functional
equivalent of a motorist asking any third person in the room, perhaps a friend or
spouse, what they [sic] thought the motorist should do.” R.R. at 65a (Trial Court
Op. at 3). Clearly, considering Licensee’s overall conduct, as we must, after
communicating in English from the time of the initial stop, up to and including, until
after the warnings were read to Licensee a second time, Licensee’s response could
not “have been fairly taken to mean go ahead with the chemical test.” Solomon, 966
A.2d at 643. Thus, Solomon is inapposite and Officer Floyd was not required to
make an attempt at that point to confirm whether Licensee would submit to testing.
Notwithstanding, the Dissent states: “the trial court held that Licensee’s
conduct did not constitute a refusal. Stated another way, Licensee’s statement to the
translator was ‘certainly ambiguous and not an explicit refusal.’ Solomon, 966 A.2d
at 643.” Hanna v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth. No.
1772 C.D. 2019, filed April 19, 2021) (Leavitt, P.J., dissenting), slip op. at 4.
On the record, the trial court stated:
Where I am sitting at the moment is there was no request
to submit to the blood test. And if you arrange for an
interpreter and someone improvidently says to that person,
I need help, we still haven’t gotten to the point where
anybody was requested to do anything. I may be
completely wrong. So if you would like to file a brief, do
so within 7 days, and, Mr. Wagner, you may do the same.
R.R. at 35a (emphasis added). However, in its opinion, after having the benefit of
the transcript, the trial court opined: “It is true that, at the end of the translation
7
[Licensee] asked the translator what he should do. This was the functional
equivalent of a motorist asking any third person in the room, perhaps [a] friend or
spouse, what they [sic] thought the motorist should do.” R.R. at 65a (emphasis
added). Thus, the trial court did not find an ambiguity in Licensee’s statement.
Accordingly, Solomon does not control.
The Dissent maintains that because
[t]he trial court went on to compare Licensee’s request to
“asking any third person in the room” for advice, [R.R. at
65a], which the [trial] court concluded did not run afoul of
Form DL-26’s prohibition on asking the police officer for
the right to seek advice[, t]he trial court did not retreat
from its observation at the hearing that Licensee never
refused to submit to chemical testing.
Hanna, slip op. at 4 n.5.
Form DL-26, paragraph 4 states:
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.
R.R. at 46a (emphasis added). After being read Form DL-26 three times, and having
the above-quoted portion repeated a fourth time, Licensee asked the translator what
he should do. There is nothing ambiguous about that statement. Accordingly, there
is no doubt that Licensee’s statement was not “‘an unqualified, unequivocal assent’
to submit to testing[,]” and therefore, it “constitute[d] a refusal to do so.” McKenna,
72 A.3d at 298 (quoting Renwick, 669 A.2d at 938).
Once PennDOT proved that Licensee had refused chemical testing, “the
burden shift[ed] to [] [L]icensee to prove []he was physically incapable of
performing the test or that [his] refusal was not knowing and conscious.” Park, 178
8
A.3d at 280. Since Licensee did not appear at the hearing before the trial court, there
was no record evidence that his refusal was not knowing and conscious. As Licensee
did not meet his burden of proving his refusal was not knowing and conscious, the
trial court erred by sustaining Licensee’s appeal and rescinding Licensee’s license
suspension.
For all of the above reasons, the trial court’s order is reversed.
_________________________________
ANNE E. COVEY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Isaac Hanna :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, : No. 1772 C.D. 2019
Appellant :
ORDER
AND NOW, this 19th day of April, 2021, the Cumberland County
Common Pleas Court’s November 19, 2019 order is reversed.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Isaac Hanna :
:
v. : No. 1772 C.D. 2019
: Submitted: June 12, 2020
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT FILED: April 19, 2021
Respectfully, I dissent. The Cumberland County Court of Common
Pleas (trial court) held that Isaac Hanna’s (Licensee) request for help, as reported by
the translator, was not an explicit refusal to consent to chemical testing. Under
Pennsylvania law, Officer Kimberly Floyd was required to offer Licensee a
meaningful opportunity to consent. Given the ambiguity surrounding Licensee’s
statement to a translator, Officer Floyd should have attempted to confirm that
Licensee would submit to testing before ending the encounter. I would affirm the
trial court.
To suspend a licensee’s operating privilege under Section 1547 of the
Vehicle Code, 75 Pa. C.S. §1547,1 the Department of Transportation, Bureau of
Driver Licensing (PennDOT) must prove that the licensee:
1
Section 1547, commonly referred to as the Implied Consent Law, reads, in pertinent part, as
follows:
(1) was arrested for driving under the influence by a police
officer who had reasonable grounds to believe that the licensee
was operating or was in actual physical control of the movement
of the vehicle while under influence of alcohol; (2) was asked to
submit to a chemical test; (3) refused to do so; and (4) was
warned that a refusal might result in a license suspension.
Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d
1203, 1206 (Pa. 1999). This Court has explained that PennDOT bears “the burden
of showing that the licensee was offered a meaningful opportunity to comply with
[Section] 1547.” Petrocsko v. Department of Transportation, Bureau of Driver
Licensing, 745 A.2d 714, 716 (Pa. Cmwlth. 2000) (quotation omitted). Further,
PennDOT must establish that the licensee unequivocally refused to assent to
chemical testing. There is no room for ambiguity.
(a) General rule.--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 or blood 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 in violation of
section 1543(b)(1.1) (relating to driving while operating privilege is suspended or
revoked), 3802 (relating to driving under influence of alcohol or controlled
substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not
equipped with ignition interlock).
(b) Civil penalties for refusal.--
(1) If any person placed under arrest for a violation of section 3802
[(relating to driving under influence of alcohol or controlled
substance)] 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 as follows:
(i) Except as set forth in subparagraph (ii), for a
period of 12 months.
***
75 Pa. C.S. §1547.
MHL-2
Solomon v. Department of Transportation, Bureau of Driver Licensing,
966 A.2d 640 (Pa. Cmwlth. 2009), is instructive on these points. In that case, the
arresting officer asked the licensee to submit to chemical testing. The licensee
responded with expletives and told the officer to “do what you’ve got to do.” Id. at
641. The trial court held that PennDOT did not prove that the licensee had refused
chemical testing, and we affirmed. We reasoned as follows:
Although Solomon’s expletives were inappropriate, his response
as a whole was certainly ambiguous and not an explicit refusal.
Solomon’s response could have been fairly taken to mean go
ahead with the chemical test. The officer should have made an
attempt at that point to confirm whether Solomon would submit
to testing. Instead, the officer escorted him out of the room and
immediately deemed a refusal. This fact further illustrates
PennDOT’s failure to prove that Solomon was offered “a
meaningful opportunity to comply.” Accordingly, the trial court
did not err in holding that PennDOT failed to prove that Solomon
refused chemical testing.
Id. at 643 (emphasis added) (citation omitted).
Here, Officer Floyd used a translator to read the Form DL-26 to
Licensee. According to Officer Floyd, the translator stated that Licensee “asked her
for help” and “asked her what to do.”2 Notes of Testimony, 9/26/2019, at 8 (N.T.
__); Reproduced Record at 21a (R.R. __). Officer Floyd considered the translator’s
report of Licensee’s statement to violate paragraph 4 of PennDOT’s Form DL-26.3
2
Licensee objected to Officer Floyd’s testimony about what the translator said as hearsay, but the
trial court overruled the objection.
3
Paragraph 4 states:
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.
MHL-3
Officer Floyd, who does not speak Arabic, had no personal knowledge of Licensee’s
actual words to the translator or their context. Licensee’s request for help could have
been related to anything: a request for a different translation or dialect.
At no point did Officer Floyd testify that the translator stated that
Licensee requested to speak to an attorney or to anyone else.4 The second sentence
of paragraph 4 of Form DL-26 warns that where the licensee makes a request to
speak to another person, he “will have refused the test.” R.R. 46a. However, the
majority relies on the first sentence of paragraph 4, and that sentence does not convey
a warning. It states a legal fact. Because Licensee did not ask the translator if he
could speak to another person, the trial court held that Licensee’s conduct did not
constitute a refusal. Stated another way, Licensee’s statement to the translator was
“certainly ambiguous and not an explicit refusal.” Solomon, 966 A.2d at 643.
On these facts, I agree with the trial court that Licensee’s request for
help was not an explicit refusal. It was ambiguous, as the trial court observed:
Where I am sitting at the moment is there was no [refusal] to
submit to the blood test. And if you arrange for an interpreter
and someone improvidently says to that person, I need help, we
still haven’t gotten to the point where anybody [refused] to do
anything.
N.T. 26; R.R. 39a.5
R.R. 46a.
4
Specifically, the trial court explained that Licensee’s request for help did not violate paragraph 4
of Form DL-26 because “[Licensee] did not request to speak to an attorney. Nor did he make a
request to the officer to speak to anyone else after being provided the warnings. Finally, there is
no evidence that he remained silent. In short, none of the enumerated triggers for a refusal
occurred.” Trial Court Op. at 2; R.R. 64a.
5
The majority suggests that after the trial court had the benefit of the transcript, it found no
ambiguity in Licensee’s conduct. I disagree. The majority correctly points out that, in its opinion,
the trial court acknowledged that Licensee “asked the translator what he should do.” Trial Court
MHL-4
Solomon teaches that where an officer is unsure of a licensee’s intent to
consent to chemical testing, the officer should confirm whether the motorist will
submit to chemical testing. Solomon, 966 A.2d at 643. Guaranteeing the motorist a
meaningful opportunity to comply requires nothing less.6 In light of the ambiguity
surrounding Licensee’s statement to the translator, I agree with the trial court that
Officer Floyd should have asked Licensee, either directly or through the translator,
to submit to testing. At that point, anything less than Licensee’s unequivocal assent,
even silence, would have been a refusal.
The trial court reviewed Licensee’s overall conduct, as described by
Officer Floyd. Based on the trial court’s findings, I conclude that this case is
governed by Solomon and that PennDOT did not prove that Licensee explicitly
refused to comply with Officer Floyd’s request for chemical testing. Thus, I would
affirm.
_____________________________________
MARY HANNAH LEAVITT, President Judge
Op. at 3; R.R. 65a. However, the context of this statement is important. The trial court went on
to compare Licensee’s request to “asking any third person in the room” for advice, id., which the
court concluded did not run afoul of Form DL-26’s prohibition on asking the police officer for the
right to seek advice. The trial court did not retreat from its observation at the hearing that Licensee
never refused to submit to chemical testing.
6
The majority reads Solomon too narrowly. It does not stand for the proposition that, to overcome
a deemed refusal, a licensee must demonstrate that the words he uttered at the scene could have
been interpreted as an assent to testing. The point of Solomon is that the officer must ensure that
there is no ambiguity in the licensee’s conduct before deeming it a refusal. This is part and parcel
of ensuring the licensee was afforded a meaningful opportunity to comply with the request for
chemical testing.
MHL-5