M.D. Donnelly v. PennDOT, Bureau of Driver Licensing ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Melanie Dawn Donnelly, :
Appellant :
:
v. : No. 1290 C.D. 2021
: Submitted: April 1, 2022
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: May 13, 2022
Melanie Dawn Donnelly (Licensee) appeals from the August 20, 2021 order
of the Court of Common Pleas of Adams County (trial court), which dismissed her
appeal from the one-year suspension of her operating privilege that the Department
of Transportation, Bureau of Driver Licensing (Department) imposed following her
arrest for driving under the influence of alcohol (DUI) and refusal to submit to a
blood test under 75 Pa.C.S. § 1547(b)(1)(i) of the Vehicle Code. Licensee challenges
the trial court’s finding that she refused to submit to blood testing. Upon review, we
affirm.
I. Background and Procedural History
On January 28, 2021, police officer Shannon Hilliard (Officer Hilliard) of the
Gettysburg Borough Police Department initiated a traffic stop of Licensee’s vehicle
because of its expired registration. Original Record (O.R.), Item No. 17, Notes of
Testimony (N.T.), 8/20/21, at 4-5. During the traffic stop, Officer Hilliard observed
that Licensee had bloodshot, glassy eyes, and that the odor of alcohol was emanating
from her breath. Id. at 5. Officer Hilliard directed Licensee out of her vehicle to
perform field sobriety testing. Id. at 5-6. Licensee’s poor performance on the tests
caused Officer Hilliard to believe Licensee was intoxicated. Id. at 6. Officer Hilliard
then asked Licensee for preliminary breath testing, but she did not provide an
adequate breath sample to complete the test. Id. at 5-6. Ultimately, Officer Hilliard
arrested Licensee for DUI and transported her to a hospital for blood testing. Id. For
reasons that the parties dispute, Licensee did not submit to a voluntary blood test.
Officer Hilliard obtained a search warrant for a blood sample. Id. at 8-10, 14-15.
On February 11, 2021, the Department mailed Licensee a notice stating that
it was suspending her operating privilege for a period of one year due to her refusal
to submit to the blood test. Licensee appealed the suspension to the trial court and
filed a motion for supersedeas pending the outcome of the appeal. The trial court
granted supersedeas and conducted a hearing on August 20, 2021, at which Licensee
appeared with counsel. The Department presented the testimony of Officer Hilliard.
Licensee testified on her own behalf.
Officer Hilliard testified that he read Licensee a DL-26B form at the hospital,
which advised her that her operating privilege would be suspended if she refused to
submit to a blood test. Id. at 5-8. Officer Hilliard testified that Licensee denied “on
scene” that she had been drinking but stated at the hospital that she “was unsure how
much alcohol was in her drink and afraid to submit to testing.” Id. He explained
that he treated Licensee’s statement as a refusal to test. Id. at 14-15. Officer Hilliard
did not recall Licensee making any further statements after asserting that she was
2
afraid to submit to testing. Id. at 14. Licensee did not attempt to consent to the blood
test after learning that Officer Hilliard deemed her statement a refusal and would be
seeking a search warrant. Id. at 15-16. Officer Hilliard added that he initialed the
section of the DL-26B form indicating Licensee had declined to sign the form after
refusing a test. Id. at 9-10, 16.
Licensee challenged Officer Hilliard’s testimony, claiming that he never read
her the DL-26B form. Id. at 19. Significantly, she testified on direct examination
that she did not recall making the statement Officer Hilliard described, in which she
indicated that she was unsure how much alcohol was in her drink, and that she was
afraid to submit to testing. Id. at 20. Licensee testified that she stated, “I don’t like
having my blood drawn. Is there anything else I can do?” Id. Licensee’s testimony
changed during examination by the trial court, in that she conceded stating to Officer
Hilliard that she was “afraid to have [her] blood drawn because [she] d[id]n’t know
how much alcohol was in [her] drink.” Id. at 25. When the trial court asked Licensee
why her testimony had changed, Licensee maintained that she did not recall “having
any kind of conversation aside from the fact that [she] told him [she does]n’t like
having [her] blood drawn.” Id.
At the conclusion of the hearing, the trial court announced it would dismiss
Licensee’s appeal and reinstate the suspension of her operating privilege. Id. at 28.
In a subsequent opinion, the trial court found Officer Hilliard read Licensee the DL-
26B form and gave her a meaningful opportunity to submit to blood testing, but that
her statements and actions constituted a refusal to test. O.R., Item No. 18, Trial Ct.
Op., 11/17/21, at 5. The trial court found Licensee did not provide an unqualified,
unequivocal assent to testing. Id. In making these findings, the trial court explained
that it deemed Licensee’s testimony incredible, citing her claim that Officer Hilliard
3
did not read her the DL-26B form, which it rejected as illogical, and her inconsistent
statements regarding why she was hesitant to submit to a blood test. Id. at 6. The
trial court entered an order memorializing this decision on August 20, 2021.
Licensee appealed,1 and the trial court directed her to file a concise statement of
errors complained of on appeal. Licensee complied, challenging the trial court’s
finding that she refused a blood test.
II. Discussion
We review the order on appeal to assess whether substantial evidence supports
the trial court’s findings, and whether the trial court committed an abuse of discretion
or error of law. Pritchett v. Dep’t of Transp., Bureau of Driver Licensing, 267 A.3d
618, 621 n.3 (Pa. Cmwlth. 2021) (quoting Renfroe v. Dep’t of Transp., Bureau of
Driver Licensing, 179 A.3d 644, 648 n.3 (Pa. Cmwlth. 2018) (en banc)). It is within
the trial court’s province to resolve questions of credibility and evidentiary weight.
Renfroe, 179 A.3d at 651 (citing Hasson v. Dep’t of Transp., Bureau of Driver
Licensing, 866 A.2d 1181, 1186 (Pa. Cmwlth. 2005)). If sufficient evidence exists
to support the trial court’s findings, we may not disturb them. Id. (quoting Mooney
v. Dep’t of Transp., Bureau of Driver Licensing, 654 A.2d 47, 50 (Pa. Cmwlth.
1994)).
1
Licensee initially appealed to our Superior Court. The Department filed an application
to transfer the case to this Court, which the Superior Court granted. See Commonwealth v. Duffey,
639 A.2d 1174, 1177 (Pa. 1994) (the Commonwealth Court’s exclusive jurisdiction pursuant to 42
Pa.C.S. § 762(a)(3) includes secondary review of appeals from operating privilege suspensions);
42 Pa.C.S. § 5103(a) (if an appeal is filed in a court of the Commonwealth that lacks jurisdiction,
the court shall not quash the appeal “but shall transfer the record thereof to the proper tribunal of
this Commonwealth, where the appeal . . . shall be treated as if originally filed in the transferee
tribunal on the date when the appeal . . . was first filed” in the court without jurisdiction).
4
The Vehicle Code provides that the Department shall suspend the operating
privilege of any licensee who is arrested for DUI pursuant to 75 Pa.C.S. § 3802 and
refuses to submit to chemical testing.2 75 Pa.C.S. § 1547(b)(1). The arresting police
officer must alert the licensee, in relevant part, that refusal to submit to testing will
result in suspension. 75 Pa.C.S. § 1547(b)(2)(i). To support its suspension decision
at an appeal hearing, the Department must prove that (1) the arresting police officer
had reasonable grounds to believe the licensee was driving under the influence, (2)
the officer asked the licensee to submit to testing, (3) the officer warned the licensee
that refusal would result in suspension, and (4) the licensee refused. Olt v. Dep’t of
Transp., Bureau of Driver Licensing, 218 A.3d 1, 5-6 (Pa. Cmwlth. 2019) (quoting
Zwibel v. Dep’t of Transp., Bureau of Driver Licensing, 832 A.2d 599, 604 (Pa.
Cmwlth. 2003)). If the Department meets this initial hurdle, the burden shifts to the
licensee to prove that he or she was incapable of making a knowing and conscious
refusal or physically incapable of testing. Factor v. Dep’t of Transp., Bureau of
Driver Licensing, 199 A.3d 492, 496 (Pa. Cmwlth. 2019) (quoting Giannopoulos v.
Dep’t of Transp., Bureau of Driver Licensing, 82 A.3d 1092, 1094 (Pa. Cmwlth.
2013)).
Whether a licensee refused chemical testing is a question of law that depends
on the trial court’s factual findings. Broadbelt v. Dep’t of Transp., Bureau of Driver
Licensing, 903 A.2d 636, 640 n.4 (Pa. Cmwlth. 2006) (citing Dep’t of Transp. v.
Renwick, 669 A.2d 934 (Pa. 1996)). In response to a police officer’s request for a
chemical test, “‘anything less than an unqualified, unequivocal assent . . . constitutes
a refusal . . . .’” Nardone v. Dep’t of Transp., Bureau of Driver Licensing, 130 A.3d
738, 748 (Pa. 2015) (quoting Todd v. Dep’t of Transp., Bureau of Driver Licensing,
2
The Department suspended Licensee’s operating privilege for 12 months pursuant to 75
Pa.C.S. § 1547(b)(1)(i).
5
723 A.2d 655, 658 (Pa. 1999)). This does not mean that a licensee must consent to
testing “without making a single inquiry or request . . . .” Id. Rather, the trial court
must consider if the licensee’s “overall conduct demonstrates an unwillingness to
assent to an officer’s request for chemical testing.” Id. at 749 (collecting cases). The
police officer must provide the licensee with a reasonable opportunity to submit to
testing before a trial court may conclude the licensee refused. Id. at 749-50 (quoting
Todd, 723 A.2d at 659). The officer need not, however, spend time “‘either cajoling
the licensee or . . . waiting to see if the licensee will ultimately change his mind.’”
Walkden v. Dep’t of Transp., Bureau of Driver Licensing, 103 A.3d 432, 440 (Pa.
Cmwlth. 2014) (quoting Broadbelt, 903 A.2d at 641 n.7).
Licensee divides her claim into two interrelated arguments. Licensee presents
her statements to Officer Hilliard as she described them during the hearing on August
20, 2021, and as Officer Hilliard described them. She contends that, in either case,
she did not refuse to submit to blood testing. Discussing her own version of events,
Licensee argues she did not refuse a blood test but merely asked Officer Hilliard a
“rhetorical question” about whether she could take another type of test. Licensee’s
Br. at 13-14, 20. Turning to Officer Hilliard’s version of events, Licensee contends
she made “a mere expression of concern,” stating she was worried and did not know
how much alcohol she consumed. Id. at 14, 19-20. Licensee complains that Officer
Hilliard did not offer her the opportunity to read the DL-26B form herself, and that
his “quick-trigger categorization” of her statements deprived her of an opportunity
to consent to testing. Id. at 13, 20.3 Licensee cites to several cases in support of her
3
Licensee maintains in her brief that Officer Hilliard filled out the DL-26B form to reflect
that she refused a blood test, and that he “placed his initials where a motorist’s normally would be
to indicate the alleged refusal . . . .” Licensee’s Br. at 19. We have reviewed the copy of the DL-
26B form in the original record, which refutes this characterization. Officer Hilliard’s initials
(Footnote continued on next page…)
6
claim, which she contends are similar to this matter and require that we reverse the
trial court’s decision, including Department of Transportation, Bureau of Traffic
Safety v. Tillitt, 411 A.2d 276 (Pa. Cmwlth. 1980); Department of Transportation,
Bureau of Traffic Safety v. Doherty, 490 A.2d 481 (Pa. Cmwlth. 1985); Department
of Transportation, Bureau of Traffic Safety v. Ferrara, 493 A.2d 154 (Pa. Cmwlth.
1985); and Bomba v. Department of Transportation, Bureau of Driver Licensing, 28
A.3d 946 (Pa. Cmwlth. 2011).
Our review of the record confirms that substantial evidence supports the trial
court’s findings, and we see no basis to conclude that the trial court committed an
abuse of discretion or error of law. As summarized above, Officer Hilliard testified
that he read the DL-26B form to Licensee at the hospital, and that she responded by
indicating she “was unsure how much alcohol was in her drink and afraid to submit
to testing.” O.R., Item No. 17, N.T., 8/20/21, at 5-8. Because we defer to the trial
court’s credibility determinations, we limit our analysis to the statement that the trial
court found Licensee made to Officer Hilliard, and we do not consider Licensee’s
alternative version of events. Renfroe, 179 A.3d at 651. Licensee’s response plainly
indicated an unwillingness to comply with a blood test, rather than an unqualified,
unequivocal assent. See Nardone, 130 A.3d at 748-49. Once Licensee made this
statement, it was not Officer Hilliard’s duty to try and change her mind or assuage
her concerns. Walkden, 103 A.3d at 440.
Critically, substantial evidence confirms that Licensee received a reasonable
opportunity to consent to blood testing, and our review reveals no reason to believe
appear in the section of the DL-26B form indicating that he read the form to Licensee and gave
her the opportunity to submit to a blood test, in the section indicating that Licensee refused to sign
the form after Officer Hilliard advised her of its contents, and in the “Officer Signature” section.
7
Licensee had inadequate time to ponder her options or reach a decision. Contrary to
Licensee’s position, Officer Hilliard testified that he did not recall Licensee making
any additional statements after indicating that she was afraid to submit to a blood
test. O.R., Item No. 17, N.T., 8/20/21, at 14. Moreover, Licensee did not attempt to
consent to testing once she learned Officer Hilliard deemed her response a refusal
and would be seeking a search warrant. Id. at 15-16. Officer Hilliard explained that
he initialed the section of the DL-26B form indicating that Licensee declined to sign
the form after refusing the test. Id. at 9-10, 16.
The cases Licensee cites in her brief do not compel a different conclusion. In
Ferrara, a licensee asked if she could call someone, presumably an attorney, after a
police officer requested that she submit to blood or breath testing. 493 A.2d at 155-
57. The officer agreed that the licensee could make the phone call. Id. at 155-56.
Later, the licensee asked to take a breathalyzer test, and the officer refused, saying
it was “‘too late.’” Id. at 156. This Court held that the licensee’s request to make a
phone call was not an unqualified refusal, and “that a request for consultation must
be responded to negatively before a refusal can be established.” Id. at 157 (emphasis
in original). Similarly, in Doherty, this Court addressed a situation where a police
officer requested that the licensee submit to a breathalyzer test. 490 A.2d at 481.
When the licensee asked whether he could call his attorney, the officer recorded the
response as a refusal. Id. This Court reasoned that the licensee did not refuse to test,
as he merely asked if he could call his attorney and did not condition his consent to
testing on an affirmative response. Id. at 482. It is important to note that this Court
decided Ferrara and Doherty prior to our Supreme Court’s decision in Department
of Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 878 (Pa.
1989), which provided that, when a licensee asks to consult with an attorney prior to
8
taking a breathalyzer test, the police officer must explain to the licensee that he or
she has no right to do so. Consistent with current law, the DL-26B form in this case
stated that a request to speak with an attorney prior to deciding whether to submit to
a blood test would indicate a refusal. See Garner v. Dep’t of Transp., Bureau of
Driver Licensing, 879 A.2d 327, 331 (Pa. Cmwlth. 2005).
Tillitt involved a licensee who refused to submit to a breathalyzer test before
a police officer warned him of the consequences of refusal. 411 A.2d at 277. After
the officer warned the licensee, the licensee equivocated briefly and then agreed to
test. Id. This Court explained that it could not conclude that the licensee’s response
was “[s]ubstantially short of an unqualified, unequivocal assent” once he received
the required warning. Id. Next, the licensee in Bomba agreed to a breathalyzer test
and attempted to give a breath sample, but the sample was insufficient. 28 A.3d at
948. The licensee asked to take the test again, but the police officer declined and
marked the licensee’s initial failure as a refusal. Id. This Court concluded that the
licensee’s failure to complete the test was not a refusal, emphasizing that she did not
“deliberately tr[y] to delay or undermine the testing process” but “made a good faith,
but unsuccessful, attempt to provide a breath sample and immediately requested to
attempt the test a second time.” Id. at 951.
In sum, these cases involved licensees who either (1) asked the police officer
if they could call an attorney, having not been advised this was impermissible, or (2)
consented to testing. Neither situation was present here. Pursuant to the trial court’s
factual findings and credibility determinations, Licensee did not ask Officer Hilliard
any questions and did not consent to testing. Because the cases Licensee cites in her
brief are readily distinguishable, they do not require that we disturb the trial court’s
order.
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III. Conclusion
For all the foregoing reasons, we conclude that Licensee refused to submit to
a blood test, and we affirm the trial court’s order dismissing her appeal and
reinstating the suspension of her operating privilege.
______________________________
STACY WALLACE, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Melanie Dawn Donnelly, :
Appellant :
:
v. : No. 1290 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 13th day of May 2022, the August 20, 2021 order of
the Court of Common Pleas of Adams County is hereby AFFIRMED.
______________________________
STACY WALLACE, Judge