J.K. Rickards v. Bureau of Driver Licensing ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jennifer Kathleen Rickards :
:
v. : No. 1225 C.D. 2019
: Submitted: February 21, 2020
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: May 26, 2020
The Commonwealth of Pennsylvania, Department of Transportation, Bureau
of Driver Licensing (DOT) appeals from the August 16, 2019 Order of the Court of
Common Pleas of Bucks County (common pleas)1 setting aside a one-year
suspension of Jennifer Kathleen Rickards’s (Licensee) operating privilege imposed
1
Common pleas’ Order and accompanying Opinion in this matter are dated August 12,
2019. The Order and Opinion were docketed on August 15, 2019, and appear to have been
transmitted to the parties on August 16, 2019. (Reproduced Record at 1a.) Pursuant to
Pennsylvania Rule of Appellate Procedure 108(b), Pa.R.A.P. 108(b), the date of entry of an order
“in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the
clerk makes the notation in the docket that notice of entry of the order has been given as required
by” Pennsylvania Rule of Civil Procedure 236(b), Pa.R.C.P. No. 236(b). Since the Order in this
case was transmitted to the parties on August 16, 2019, the Order was entered as of that date.
Regardless of the Order’s date, DOT’s appeal was timely filed.
by DOT pursuant to 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.2 On appeal,
DOT contends that common pleas erred as a matter of law by holding that Licensee
did not refuse a request for a blood test and, therefore, DOT’s suspension of
Licensee’s operating privilege should have been upheld because it met its burden to
sustain the suspension. Upon review, we are constrained by our precedent to
conclude Licensee did refuse a chemical test of her blood. Accordingly, we reverse.
I. Factual Background and Procedure
On October 18, 2018, Licensee was arrested for driving under the influence
(DUI), at which time Officer Drakeley of the Upper Southampton Township Police
Department read Licensee the warnings outlined in DOT’s DL-26B Form. The
warnings outlined in the DL-26B Form, commonly referred to as the O’Connell3
warnings or the Implied Consent Warnings, read, in pertinent part, as follows:
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[,
75 Pa.C.S. § 3802].
2
The Implied Consent Law provides, in relevant part, that:
(1) If any person placed under arrest for violation of [S]ection 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 so, the testing
shall not be conducted but upon notice by the police officer, [DOT] 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).
3
Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 555 A.2d 873 (Pa. 1989).
2
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 [DUI], your operating
privilege will be suspended for up to 18 months. If your operating
privilege is suspended for refusing chemical testing, you will have to
pay a restoration fee of up to $2,000 in order to have your operating
privilege restored.
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 (R.R.) at 92a.) After being read the Implied Consent Warnings,
Officer Drakeley asked Licensee whether she would consent to a chemical test of
her blood. It is undisputed that Licensee responded by asking whether she could
read the form herself. Officer Drakeley allowed Licensee to read the form for a short
period of time and then asked Licensee multiple times whether she would consent
to a chemical test of her blood. It is also undisputed that Licensee was silent in
response to Officer Drakeley’s multiple inquiries as to whether Licensee would
consent to a chemical test. Officer Drakeley treated Licensee’s silence as a refusal
to consent and transported her to the police department for processing. Thereafter,
by letter with a mailing date of November 1, 2018, DOT suspended Licensee’s
operating privilege for a period of one year effective December 6, 2018, pursuant to
the Implied Consent Law, for Licensee’s refusal to submit to a chemical test on
October 18, 2018. (Id. at 8a-11a.)
Licensee appealed the suspension to common pleas, which held a hearing on
May 23, 2019. At the hearing, Officer Drakeley, his backup, Officer Bankert, and
3
Licensee testified. Officer Drakeley testified as follows. On October 18, 2018, at
approximately 3:00 a.m., Officer Drakeley observed a vehicle that he thought was
speeding. After following the vehicle for some time, Officer Drakeley initiated a
traffic stop and made contact with Licensee. Upon making contact with Licensee,
Officer Drakeley “detected an odor of an alcoholic beverage emanating from the
vehicle.” (Hearing Transcript (Hr’g Tr.) at 9.) After obtaining Licensee’s license,
registration, and an expired insurance card, Officer Drakeley went back to his patrol
car to run Licensee’s information. When he returned to Licensee’s vehicle, he again
“detected a strong odor of alcoholic beverage emanating from the vehicle.” (Id. at
10.) Officer Drakeley testified that he asked Licensee if she had been drinking, to
which she responded by stating that she had two drinks the previous evening,
October 17, 2018, at 6:00 p.m.
Officer Drakeley further testified that he had Licensee exit her vehicle to
perform field sobriety tests. First, Officer Drakeley requested Licensee perform a
walk-and-turn test. Officer Drakeley testified that Licensee told him that she had
issues with her left ankle and right knee but that she would attempt the test. Licensee
had difficulty with the test, having attempted the test before being asked, and
“eventually was unable to complete the test due to her ankle and knee issues.” (Id.
at 11.) Officer Drakeley then asked Licensee to perform a one-leg stand, which
Licensee stated she could not perform due to the issues with her left ankle and right
knee. At this point, Officer Drakeley testified, Officer Bankert conducted a
horizontal gaze nystagmus test (HGN). After the HGN, Officer Drakeley performed
a preliminary breath test, to which Licensee voluntarily submitted. Officer Drakeley
testified that Licensee “was providing [] insufficient samples” for the test, “at which
4
point Officer Bankert took over, and [] was able to get a sufficient sample from the
[Licensee], which indicated a positive reading of .146 percent.”4 (Id. at 13.)
Following the breath test, Officer Drakeley arrested Licensee, placed her in
the back of his patrol car, and read the DL-26B Form to her. Officer Drakeley
testified that he
read the entire form verbatim to [Licensee] and asked her twice if she
would submit to a chemical test of blood. [Licensee] began to ask
questions about the test - - or, excuse me, about the form and asked
several times to read it herself.
I informed her that I did not need to allow her to read it, but I gave her
approximately 30 seconds to look it over. During that time, she read
the portion out loud about not having the right to speak with an attorney
at this time. After about 30 seconds, I asked her again, twice more, if
she would submit to the test. She continued to ask more questions. And
then a third time, I told her I needed a yes-or-no answer right now at
that moment. [Licensee] remained silent, and I interpreted that as a
refusal.
(Id. at 13-14.) Officer Drakeley stated that when Licensee was reading the DL-26B
Form, it was dark but there were illuminated streetlights. Later in his testimony,
Officer Drakeley clarified that when he handed Licensee the DL-26B Form, she
“was silent for the first 20 or so seconds and then began to read” the fourth and final
paragraph of the Implied Consent Warnings “out loud over the last 30” seconds. (Id.
at 28.) He stated that when he asked Licensee the final time if she would consent to
the chemical test, he felt comfortable that she had finished reading the DL-26B Form
because she had been reading the final paragraph aloud. (Id. at 31.) After
interpreting Licensee’s silence as a refusal, Officer Drakeley transported Licensee
4
Pursuant to Section 3802(a)(2) of the Vehicle Code, a licensee “may not drive . . . a
vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the
[licensee]’s blood or breath is at least 0.08% . . . .” 75 Pa.C.S. § 3802(a)(2).
5
to the police department. At the police department, Licensee and Officer Drakeley
signed the DL-26B Form. Officer Drakeley testified that he could not recall if
Licensee stated, at the police department, that she would consent to the test but that
if she had stated such at the police department he would not have conducted the
chemical test because once a licensee refuses at the time of arrest, it is departmental
policy to not conduct the test if a licensee later consents at the police department.
Following Officer Drakeley’s testimony, Officer Bankert testified as follows.
After Officer Drakeley initiated the stop of Licensee, Officer Bankert responded to
the scene to assist. Upon arrival, he conducted the HGN. Based upon the indicators
from the HGN, Officer Bankert was “confident that [Licensee’s] blood alcohol
concentration would be in excess of .08 percent.” (Id. at 39.) He then testified that
Officer Drakeley attempted to perform a preliminary breath test but Licensee
provided insufficient samples. Officer Bankert then administered the breath test.
Licensee provided sufficient samples for the breath test conducted by Officer
Bankert, which indicated “.146 percent blood alcohol concentration.” (Id. at 40.)
Officer Bankert, like Officer Drakeley, testified that it was departmental policy to
not allow a licensee to submit to a chemical test at the police department after the
licensee refused the test at the time of the arrest. As to the actual blood test, Officer
Bankert stated that the chemical tests were actually conducted by the local
emergency medical services unit, neighboring departments, or, if need be, a local
hospital.
Licensee then testified as follows. After being pulled over by Officer
Drakeley, she attempted to perform field sobriety tests but was unable to complete
the walk-and-turn test due to “surgical problems.” (Id. at 43.) Following the field
sobriety tests, Licensee was arrested and placed in the back of a patrol car where
6
Officer Drakeley read the DL-26B Form. In response, Licensee “asked to read the
form.” (Id. at 44.) Licensee testified that she “kn[e]w what” Officer Drakeley said
when he read the DL-26B Form, but that she “would like to read the” form for
herself. (Id.) At that point, Officer Drakeley allowed Licensee to read the form “for
a very short amount of time” but interrupted her reading two or three times to ask
“do you consent?” (Id.) Licensee stated that “[o]nce [she] got to the fourth
paragraph, [she] [] start[ed] to read out loud so that [she] could hear [her]self think
and the paper was taken from [her]. [] [O]fficer [Drakeley] said, sounds like a refusal
to me and slammed the door.” (Id.) She stated that she never verbally consented to
the test but that she also never verbally refused the test. (Id. at 46, 48.) Licensee
testified that once she was processed at the police station, before signing the DL-
26B Form, she asked “well, what if I take it now? What if I go?” To which Officer
Drakeley responded by stating “no, it was a one-shot deal, so you have to sign the
paper.” (Id. at 45.)
After the hearing, common pleas issued its August 16, 2019 Order setting
aside DOT’s suspension of Licensee’s operating privilege. In its accompanying
Opinion, common pleas held that DOT did not meet its burden to sustain the
suspension of Licensee’s operating privilege. Specifically, common pleas held that
DOT did not meet its burden of demonstrating Licensee refused a chemical test of
her blood. Relevant to this issue, common pleas found that after Licensee’s arrest
for DUI, Officer Drakeley
placed [Licensee] in [his] patrol car and read the DL-26 [F]orm to her
verbatim once. [Officer] Drakeley asked her if she would submit to the
blood test, to which [Licensee] responded by asking questions related
to the testing requirement, and specifically asking whether she could be
permitted to read the DL-26B [Form] herself. [Officer] Drakeley
handed her the form and asserted that while he was not required to let
her read it[,] he would permit her to do so.
7
At this time, [Licensee] was in the back of the patrol car with no
illumination except nearby streetlights. [Licensee] was also
handcuffed. [Licensee] read silently for approximately twenty seconds.
After that twenty seconds, [Licensee] began to read aloud the four
paragraphs on the DL-26B [Form] warning of the consequences of
refusal. Partway through doing so, and within ten seconds of her
starting to read aloud, [Officer] Drakeley twice interrupted to demand
whether she consented to the test. Because [Licensee] continued
reading the form instead of responding, and based on her having asked
questions the nature of which he does not recall, [Officer] Drakeley
decided that [Licensee] had refused testing.
(Common pleas’ Opinion (Op.) at 2 (citations omitted).) Based upon the above
findings, common pleas concluded that Licensee
cannot be said to have chosen to decline chemical testing by failing to
respond to a police officer’s inquiry about a form that she was still
reading, less than a minute after it had been handed to her. Such a swift
declaration of refusal is particularly unreasonable in light of the totality
of [Licensee]’s conduct, which included freely submitting to multiple
different balance-related field sobriety tests, a field sobriety eye test[,]
and chemical breath testing.
(Id. at 3.) DOT then filed a Notice of Appeal on September 5, 2019. Thereafter,
common pleas ordered DOT to file a concise statement of errors complained of on
appeal. After DOT filed the foregoing, common pleas issued an opinion pursuant to
Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(a),
in support of its August 16, 2019 Order. In its 1925(a) Opinion, common pleas wrote
that Licensee’s
overall conduct did not amount to an unwillingness to consent [to the
chemical test of her blood]. To the contrary, [Licensee] freely
submitted to multiple different balance-related field sobriety tests, a
field sobriety eye test[,] and chemical breath testing. []DOT bases its
claim that [Licensee] refused testing on her failure to affirmatively
respond to [Officer] Drakeley’s request that she submit to chemical
8
analysis of her blood, asked while she was in the middle of reading the
form, having been handed it less than a minute earlier. At the very least,
[Licensee]’s conduct demonstrated her focus on reading the form at
night under artificial lighting to be able to respond [t]o [Officer]
Drakeley’s distracting interruptions. [Licensee] was clearly
considering consent by her careful review of the DL-26B warnings and
her inquiries about the testing requirements at the time the officer made
the determination she was refusing to consent.
(1925(a) Op. at 5.) Further, common pleas wrote that Licensee “cannot be said to
have chosen to decline chemical testing” because Licensee was not given a
meaningful opportunity to comply with Officer Drakeley’s request that she submit
to a chemical test of her blood. (Id.) Accordingly, common pleas ended its 1925(a)
Opinion by stating that it properly set aside DOT’s suspension of Licensee’s
operating privilege.
II. Discussion
As set forth above, on appeal,5 DOT argues common pleas erred as a matter
of law by holding that Licensee did not refuse a chemical test of her blood.
Preliminarily, before we turn to the parties’ arguments, we note that in order to
sustain the operating privilege suspension against Licensee, DOT bears the burden
of demonstrating that Licensee:
(1) was arrested for DUI by a police officer with reasonable grounds to
believe . . . [Licensee] was operating a vehicle while under the influence
of alcohol or a controlled substance; (2) was requested to submit to
chemical testing; (3) refused to submit to chemical testing; and (4) was
5
“Our standard of review is whether [common pleas’] findings are supported by
[substantial] competent evidence and whether [common pleas] committed an error of law or an
abuse of discretion.” Drudy v. Dep’t of Transp., Bureau of Driver Licensing, 795 A.2d 508, 510
n.5 (Pa. Cmwlth. 2002). For questions of law, our scope of review is plenary. Whitaker v. Wetzel,
170 A.3d 568, 572 n.3 (Pa. Cmwlth. 2017).
9
warned by [an] officer that her license will be suspended if she refused
to submit to chemical testing.
Park v. Dep’t of Transp., Bureau of Driver Licensing, 178 A.3d 274, 280 (Pa.
Cmwlth. 2018). “In proving whether [] [L]icensee refused to submit to chemical
testing, DOT has the burden of showing that [] [L]icensee was offered a meaningful
opportunity to comply with” Officer Drakeley’s request that Licensee submit to a
chemical test of her blood. Broadbelt v. Dep’t of Transp., Bureau of Driver
Licensing, 903 A.2d 636, 640 (Pa. Cmwlth. 2006). Once DOT demonstrates the
foregoing, the burden then shifts to “[L]icensee to prove she was physically
incapable of performing the test or that her refusal was not knowing and conscious.”
Park, 178 A.3d at 280.
Further, we also note that in reviewing common pleas’ August 16, 2019 Order
and Opinion, we are guided by the well-established principle that “it is not the
province of this Court to make new or different findings of fact.” Reinhart v. Dep’t
of Transp., Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008). Our
role in operating privilege suspension cases is limited to reviewing common pleas’
findings of fact “to determine if they are supported by substantial, competent
evidence.” Id. If common pleas’ factual findings are supported by substantial
evidence, “we are precluded from overturning those findings.” Id. “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Helwig v. Dep’t of Transp., Bureau of Driver Licensing, 99
A.3d 153, 159 (Pa. Cmwlth. 2014). We must view the evidence in this matter in a
light most favorable to Licensee, “the party that prevailed before” common pleas.
Bradish v. Dep’t of Transp., Bureau of Driver Licensing, 41 A.3d 944, 945 n.3 (Pa.
Cmwlth. 2012). Additionally, “[d]eterminations as to the credibility of witnesses
and the weight assigned to the evidence are solely within the province of the trial
10
court as fact-finder.” Reinhart, 954 A.2d at 765. With these principles in mind, we
turn to the parties’ arguments.
Before this Court, DOT argues it satisfied its burden to sustain the suspension
of Licensee’s operating privilege. DOT contends common pleas’ “findings of fact
are supported by competent evidence” but that common pleas “erred as a matter of
law in holding that [Licensee] did not refuse Officer Drakeley’s request for a blood
test.” (DOT’s Brief (Br.) at 22.) DOT argues that based upon the facts found by
common pleas, Licensee refused a chemical test of her blood on October 18, 2018.
As support, DOT emphasizes that common pleas found that after Officer Drakeley
read the Implied Consent Warnings to Licensee and requested that she submit to a
chemical test, Licensee “responded by asking questions related to the testing
requirement, and specifically asking whether she could be permitted to read the DL-
26B [Form] herself.” (Id. at 26 (citing common pleas’ Op at 2).) Based upon our
precedent, DOT avers that as a matter of law, Licensee refused Officer Drakeley’s
request for a chemical test by asking questions following his reading of the Implied
Consent Warnings. As to common pleas’ finding that Licensee was not afforded a
meaningful opportunity to submit to the requested blood test, DOT asserts that “as
[Licensee] already had refused Officer Drakeley’s request for a blood test,
[Licensee] was not denied a meaningful opportunity to consent to chemical testing
when Officer Drakeley did not permit [Licensee] to read the warnings for as long a
period of time as she desired.” (DOT’s Br. at 20.)6
6
DOT also argues in its brief, citing McKenna v. Department of Transportation, Bureau
of Driver Licensing, 72 A.3d 294 (Pa. Cmwlth. 2013), that if Licensee had agreed to submit to a
chemical test of her blood at the police department, this does not “vitiate her refusal at the scene
of her DUI arrest” because once a licensee refuses testing, that licensee’s refusal cannot later be
vitiated by agreeing. (DOT’s Br. at 30.) However, common pleas made no specific factual
findings with respect to whether Licensee agreed to submit to a chemical test of her blood at the
police department. As such, this issue is not before this Court.
11
Licensee agrees that common pleas’ “findings of fact were supported by the
record” but, unlike DOT, contends common pleas did not err as a matter of law by
concluding DOT failed to establish Licensee refused a chemical test of her blood
because Licensee was not given a meaningful opportunity to consent. (Licensee’s
Br. at 7.) Based upon the facts found by common pleas, Licensee concludes that her
overall conduct demonstrates that she was cooperative and did not intend to refuse
the chemical test. Licensee admits to asking questions after Officer Drakeley read
the DL-26B Form to her but asserts that “contrary to [] [DOT]’s draconian
interpretation . . . merely asking a question of a police officer does not constitute a
refusal as a matter of law.” (Id. at 11.) As to whether Licensee was provided a
meaningful opportunity to consent to the chemical test, Licensee argues that she was
not provided a meaningful opportunity because Officer Drakeley took the DL-26B
Form from her while she was reading it.7
Based upon the facts found by common pleas, which are supported by the
record, it is clear that Licensee was arrested for DUI, was then read the Implied
Consent Warnings by Officer Drakeley, and was subsequently asked to submit to a
chemical test of her blood. As such, the only question that remains in determining
7
Licensee also appears to argue, citing Officer Bankert’s testimony regarding the fact that
the Upper Southampton Township Police Department did not itself perform the chemical tests for
licensees arrested for DUI, that she was not provided a meaningful opportunity to consent to the
chemical test because it was unclear whether “the appropriate arrangements would have been
made” by the police department so that “chemical testing could actually have occurred.”
(Licensee’s Br. at 14.) It is unclear to this Court why Licensee would be deprived of a meaningful
opportunity to consent by an inability of the Upper Southampton Township Police Department’s
ability to conduct the chemical test. The crux of this issue is whether Licensee was given a
meaningful opportunity to contemplate and consent to a chemical test of her blood. Whether or
not the police department had the ability to conduct the chemical test is not relevant to the question
of whether Licensee had the meaningful opportunity to consent.
12
whether to sustain the suspension of Licensee’s operating privilege is whether
Licensee “refused to submit to chemical testing.” Park, 178 A.3d at 280.
“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). “The trial court initially
finds the facts surrounding the performance of the test. The issue of whether there
was a refusal is a question of law and reviewable by this Court.” Mueller v. Dep’t
of Transp., Bureau of Driver Licensing, 657 A.2d 90, 92 (Pa. Cmwlth. 1995). This
question turns on 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. “A ‘refusal’ is ‘anything substantially less than an unqualified,
unequivocal assent to [submit to] a [chemical] test . . . . A refusal need not be
expressed in words, but can be implied from a motorist’s actions.’” Lanthier v. Dep’t
of Transp., Bureau of Driver Licensing, 22 A.3d 346, 348 (Pa. Cmwlth. 2011)
(quoting Dep’t of Transp., Bureau of Traffic Safety v. Mumma, 468 A.2d 891, 892
(Pa. Cmwlth. 1983)).
Here, common pleas concluded Licensee was not given a meaningful
opportunity to comply with Officer Drakeley’s request that she submit to a chemical
test of her blood and, therefore, common pleas determined Licensee cannot be said
to have refused the chemical test. However, this is not consistent with our precedent.
Viewing the evidence in a light most favorable to Licensee, as we must, we agree
with DOT that Licensee was provided a meaningful opportunity to submit to the
chemical test. In reaching this decision, we conclude this case is similar to
Broadbelt.
13
In Broadbelt, the licensee was arrested for DUI, at which time he was read the
Implied Consent Warnings twice by a police officer. In response, the licensee
requested to read the Implied Consent Warnings for himself, which the police officer
allowed the licensee to do. After giving the DL-26 Form to the licensee, the police
officer “asked [the] [l]icensee three times to submit to a chemical test, but each time
[the] [l]icensee neither answered nor indicated that he did not understand the DL-26
Form.” Broadbelt, 903 A.2d at 638. The police officer treated the licensee’s silence
as a refusal to submit to the chemical test. The foregoing exchange, between when
the police officer read the Implied Consent Warnings and when the police officer
deemed the licensee’s silence a refusal, lasted 12 minutes. Thereafter, DOT
suspended the licensee’s operating privilege, which the trial court sustained. On
appeal to this court, the licensee argued that he was not given a meaningful
opportunity to comply with the request to submit to a chemical test. Specifically,
the licensee argued he was not given a meaningful opportunity to comply “due to
the short amount of time he was given to consider” the Implied Consent Warnings
and due to a distraction while he was considering whether to consent. Id. at 640.
We disagreed, holding that the licensee was given a meaningful opportunity to
comply with the request. We reasoned that the “[l]icensee had approximately twelve
minutes to consider the [Implied Consent W]arnings” and the licensee “never
indicated that he did not understand the warnings, that he needed more time to review
the warnings or that” he was being distracted while considering the warnings. Id. at
641.
In the present matter, Licensee, after her arrest for DUI, was read the DL-26B
Form and asked whether she would submit to a chemical test of her blood. Licensee
“responded by asking questions related to the testing requirement, and specifically
14
asking whether she could be permitted to read the DL-26B [Form] herself.”
(Common pleas’ Op. at 2.) Officer Drakeley allowed Licensee to read the DL-26B
Form for a short period of time before asking her at least twice whether she would
consent to a chemical test of her blood. (Id.) Like the licensee in Broadbelt,
Licensee remained silent in response to these requests. (Common pleas’ Op. at 2.)
While Licensee’s consideration of the written Implied Consent Warnings was
considerably shorter than the licensee in Broadbelt, this does not mean Licensee did
not have a meaningful opportunity to consent. Licensee, like the licensee in
Broadbelt, was given multiple opportunities to consent to the chemical test. After
being read the DL-26B Form, Licensee was asked twice whether she would consent
to the chemical test. After being allowed to read the DL-26B Form for herself,
Licensee was then asked at least twice more whether she would consent to the
chemical test.
Common pleas determined that Licensee “cannot be said to have chosen to
decline chemical testing by failing to respond to a police officer’s inquiry about a
form that she was still reading, less than a minute after it had been handed to her.”
(Common pleas Op. at 3.) However, as in Broadbelt, “Licensee never indicated” to
Officer Drakeley that she “needed more time to review the” DL-26B Form or that
she was distracted while reading it. 903 A.2d at 641. If Licensee wanted to request
more time to read and consider the Implied Consent Warnings, she could have
informed Officer Drakeley of that instead of remaining silent or indicated that she
was distracted while reading the DL-26B Form due to Officer Drakeley’s inquiries
regarding whether she would consent to the chemical test.
Furthermore, Officer Drakeley was not required to allow Licensee to read the
DL-26B Form in the first place, which he informed her when handing Licensee the
15
form. It is well-settled that all that is required by an officer under the Implied
Consent Law is that the officer read the Implied Consent Warnings to a licensee.
Park, 178 A.3d at 281. Stated differently, “[o]nce a police officer provides the
[I]mplied [C]onsent [W]arnings to a motorist, the officer has done all that is legally
required to ensure the [licensee] is fully advised of the consequences of [the
licensee’s] failure to submit to chemical testing.” Id. “In particular, officers do not
have an obligation to make sure that licensees understand the [Implied Consent
W]arnings or the consequences of a refusal,” such as by allowing licensees the
opportunity to read the DL-26B Form for themselves. Id. We squarely addressed
this issue in Blythe v. Department of Transportation, Bureau of Driver Licensing
(Pa. Cmwlth., No. 834 C.D. 2016, filed June 1, 2017).8 In Blythe, the licensee argued
to this Court that “meaningful opportunity,” in operating privilege suspension cases,
“includes an opportunity to read the [DL-26] [F]orm in its entirety and have time to
consider the warnings.” Slip op. at 4. We concluded that there is no requirement
in the Implied Consent Law that a “licensee be provided an opportunity to read the
form,” reasoning that “[t]he duty to inform the licensee of the consequences of
refusal rests solely on the officer.” Id. at 6. As such, Licensee cannot be said to
have been deprived of a meaningful opportunity to comply with Officer Drakeley’s
request that she consent to a blood test based upon the rationale that she was not
afforded as much time as she would have liked to read the DL-26B Form because
Officer Drakeley, under the Implied Consent Law, was not obligated to allow
Licensee to read the form in the first place. Id.
8
Pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
126(b), and Section 414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a),
unreported panel decisions of this Court may be cited for their persuasive value.
16
Licensee was fully apprised of the Implied Consent Warnings, testifying that
she “kn[e]w what” Officer Drakeley said when he read the DL-26B Form. (Hr’g Tr.
at 44.) Additionally, when handed the DL-26B Form, Licensee read silently for
approximately 20 seconds and then began reading the fourth and final paragraph
aloud, evidencing that Licensee had finished reading the Implied Consent Warnings
when her silence was deemed a refusal. (Common pleas’ Op. at 2.) Therefore,
Licensee cannot be said to have not been informed of her rights before being asked
if she would consent to a chemical test of her blood. In light of these facts we
conclude Licensee was given a meaningful opportunity to comply with the request
to submit to a chemical test because Licensee was asked, at least four times, whether
she would consent to a chemical test of her blood and had the opportunity to consent
each time.
Having determined that Licensee was provided with a meaningful opportunity
to comply with Officer Drakeley’s request that she submit to a chemical test of her
blood, we now turn to the question of whether Licensee refused the chemical test.
DOT contends Licensee refused to submit to the chemical test by asking questions
after Officer Drakeley read the DL-26B Form aloud. We agree. We have
consistently held that “[r]epeated questioning may [] be deemed a refusal by
conduct.” Park, 178 A.3d at 281. Here, common pleas found that when Officer
Drakeley read Licensee the DL-26B Form, Licensee “responded by asking
questions related to the testing requirement, and specifically asking whether she
could be permitted to read the DL-26B [Form] herself.” (Common pleas’ Op. at 2
(emphasis added).) Based upon this factual finding, by which we are bound,
Licensee, as a matter of law, refused Officer Drakeley’s request that she submit to a
chemical test of her blood by asking questions rather than providing her consent to
17
the test. Lanthier, 22 A.3d at 348. We acknowledge that Officer Drakeley did not
treat Licensee’s questions as a refusal. However, whether an action constitutes a
refusal is a question of law. Mueller, 657 A.2d at 92. Therefore, we are not bound
by Officer Drakeley’s determination at the time of the arrest.
Further, even assuming, arguendo, that Licensee’s questions in response to
being read the Implied Consent Warnings did not constitute a refusal, her silence,
after being asked at least twice more whether she would consent to the chemical test,
independently constitutes a refusal. Notwithstanding the fact that Licensee had been
read the Implied Consent Warnings by Officer Drakeley, Licensee was permitted to
read the Implied Consent Warnings herself, which she read for approximately 20
seconds before reading the final paragraph aloud. The fact that Licensee was reading
the final paragraph aloud evidences her having finished reading the warnings to
herself. Having been fully apprised of her rights both by Officer Drakeley and by
reading the Implied Consent Warnings herself, Licensee, like the licensee in
Broadbelt, chose to remain silent when asked whether she would consent to the
chemical test. Licensee did not inform Officer Drakeley that she was not finished
reading the DL-26B Form or that she was distracted while reading it. We have
consistently held that silence can constitute a refusal. Grogg v. Dep’t of Transp.,
Bureau of Driver Licensing, 79 A.3d 715, 719 (Pa. Cmwlth. 2013). Therefore,
Licensee refused Officer Drakeley’s subsequent requests that she consent to a
chemical test by remaining silent.
Notwithstanding the above, the fact that Officer Drakeley later asked Licensee
if she would consent to a chemical test of her blood does not waive Licensee’s first
refusal. As stated above, after being handed the DL-26B Form to read, albeit for a
short period of time, Officer Drakeley asked Licensee, at least twice, whether she
18
would consent to a chemical test of her blood. Officer Drakeley’s subsequent
inquiries as to whether Licensee would take the test “were at most gratuitous”
because Licensee had already refused the test by asking questions in response to
being asked twice whether she would consent to a chemical test. Olbrish v. Dep’t
of Transp., Bureau of Driver Licensing, 619 A.2d 397, 399 (Pa. Cmwlth. 1992).
Licensee chose not to avail herself of Officer Drakeley’s subsequent inquiries by
remaining silent when he asked her whether she would consent to a chemical test of
her blood. As such, “no waiver of the first refusal occurred, because Licensee did
not successfully complete any testing.” Jackson v. Dep’t of Transp., Bureau of
Driver Licensing, 191 A.3d 931, 937 (Pa. Cmwlth. 2018).9
Accordingly, we conclude that common pleas erred in holding that DOT did
not meet its burden of demonstrating that Licensee refused a chemical test of her
blood on October 18, 2018.
III. Conclusion
For the foregoing reasons, we are constrained to conclude that common pleas
erred in concluding that Licensee was not given a meaningful opportunity to comply
with a request for a chemical test of her blood. Licensee was given multiple
opportunities to consent to a chemical test but chose not to do so. We also conclude
that Licensee refused the chemical test by not giving her unequivocal assent when
asked multiple times whether she would consent to the test. As such, we hold DOT
met its burden to sustain the suspension of Licensee’s operating privilege.
Accordingly, we reverse common pleas’ August 16, 2019 Order setting aside the
9
Even if Licensee did later consent to the chemical test of her blood at the police
department, this was after her refusal, and “the law is well-settled that once a licensee has refused,
the refusal cannot be vitiated by a later assent.” McKenna, 72 A.3d at 297 n.4.
19
suspension of Licensee’s operating privilege and reinstate DOT’s suspension of
Licensee’s operating privilege.
_____________________________________
RENÉE COHN JUBELIRER, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jennifer Kathleen Rickards :
:
v. : No. 1225 C.D. 2019
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
ORDER
NOW, May 26, 2020, the August 16, 2019 Order of the Court of Common
Pleas of Bucks County is hereby REVERSED. Accordingly, the suspension of
Jennifer Kathleen Rickards’s operating privilege by the Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing is hereby
REINSTATED.
_____________________________________
RENÉE COHN JUBELIRER, Judge