M. Weston v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Maurice Weston, :
Appellant :
: No. 698 C.D. 2020
v. :
: Submitted: February 5, 2021
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: May 5, 2021
Maurice Weston (Licensee) appeals, pro se, from the January 21, 2020
order of the Court of Common Pleas of Bucks County (trial court) denying his appeal
from a one-year suspension of his operating privilege imposed by the Commonwealth
of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT),
under 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.1
1
Section 1547(b)(1)(i) reads, in pertinent part, as follows:
(1) If any person placed under arrest for a violation of section 3802 [(relating
to driving under the influence of alcohol or a 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(b)(1)(i).
Facts and Procedural History
On June 22, 2019, while patrolling an area of Interstate 95, Pennsylvania
State Police Trooper Richard Sentak observed a vehicle, which he later learned was
driven by Licensee, travelling erratically. (Original Record (O.R.) Item No. 7; Notes
of Testimony (N.T.), 1/21/2020, at 7.) More specifically, Trooper Sentak observed the
vehicle leave the lane of travel several times without properly signaling a lane change,
crossing over the white line that separated the left lane from the shoulder of the road,
and reaching speeds of 84 and 95 miles per hour in a 55-mile-per-hour zone. (N.T. at
7-8.)
Trooper Sentak initiated a traffic stop and, upon approaching the vehicle
and requesting Licensee’s license, detected a smell of alcohol coming from the vehicle.
(N.T. at 8.) Trooper Sentak also observed that Licensee’s eyes were glassy and
bloodshot. Id. Trooper Sentak requested that Licensee exit the vehicle and
administered the horizontal gaze nystagmus test to Licensee. Id. Licensee’s “eyes had
the lack of smooth pursuit, distinct and sustained nystagmus and onset prior to 45.”
(N.T. at 8-9.) Trooper Sentak began explaining two more field sobriety tests, the walk
and turn and the one-leg stand, but Licensee declined to perform those tests, citing his
back problems that might affect his balance. (N.T. at 9.) Trooper Sentak administered
a preliminary breath test to Licensee, which revealed the presence of alcohol above the
legal limit. Id. At this point, Licensee was placed under arrest for suspicion of driving
under the influence (DUI). Id.
After placing Licensee in the back of his patrol vehicle, Trooper Sentak
stood next to the back of the car and read Licensee verbatim the implied consent
2
warnings of the DL-26 form.2 (N.T. at 9.) Trooper Sentak then asked Licensee to
submit to a blood test, but Licensee refused. Id. Trooper Sentak signed the DL-26
form stating that he read the warnings to Licensee and offered Licensee an opportunity
to submit to chemical testing, but that Licensee refused the test. (N.T. at 9-10; see also
O.R. Item No. 11 at Exhibits.) Licensee also refused to sign the DL-26 form. (N.T. at
10; O.R. Item No. 11 at Exhibits.) Trooper Sentak subsequently reported Licensee’s
refusal to DOT.
By letter dated July 18, 2019, DOT notified Licensee that his operating
privilege was being suspended for one year as a result of this refusal. (O.R. Item No.
1.) Licensee filed a statutory appeal with the trial court. (O.R. Item No. 1.) The trial
court conducted a hearing on January 21, 2020. (O.R. Item No. 7.)
At trial, DOT offered into evidence the July 18, 2019 notice of suspension
(Exhibit C1), Bureau of Driver Licensing Certified Driving History for Licensee dated
July 30, 2019 (Exhibit C2), and the DL-26 form signed by Trooper Sentak, which noted
Licensee’s refusal to sign (Exhibit C3). (N.T. at 2-6.) Notably, the Bureau of Driver
Licensing Certified Driving History for Licensee, dated July 30, 2019 (Exhibit C2),
indicated that Licensee’s license was previously suspended for six months pursuant to
former section 1532(c) of the Vehicle Code,3 formerly 75 Pa.C.S. §1532(c), following
2
The DL-26 form contains the chemical testing warnings required by section 1547 of the
Vehicle Code, 75 Pa. C.S. §1547, pursuant to our Supreme Court’s decision in Department of
Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873 (Pa. 1989). These warnings
inform a motorist that he is under arrest; that he is being requested to submit to a chemical test; that
he will lose his operating privilege and potentially face stricter criminal penalties if the request is
refused; and that there is no right to remain silent or speak to an attorney.
3
Former Section 1532(c) of the Vehicle Code, formerly 75 Pa.C.S. §1532(c), authorized DOT
to “suspend the operating privilege of any person upon receiving a certified record of the person’s
conviction of any offense involving the possession, sale, delivery, offering for sale, holding for sale
or giving away of any controlled substance.” The Act of October 24, 2018, P.L. 659, No. 95 (Act
(Footnote continued on next page…)
3
a December 18, 2000 conviction for possession of a controlled substance pursuant to
Section 13(a)(16) of The Controlled Substance, Drug, Device and Cosmetic Act,4 35
P.S. §780-113(a)(16). Licensee had no objection to the introduction of these three
exhibits. (N.T. at 6.)
DOT thereafter presented the testimony of Trooper Sentak, who related
the above-described events. (N.T. at 6-10.) On cross-examination, Trooper Sentak
explained that although Licensee had completed the preliminary breath test, he
explained to Licensee that Licensee’s blood alcohol content would also be determined
by chemical testing. (N.T. at 11.) At the police barracks, Trooper Sentak showed
Licensee the form once more and asked him to sign it. (N.T. at 13.) He explained to
Licensee that the form served as an acknowledgment that Trooper Sentak read the
warnings to Licensee. (N.T. at 13.) Licensee asked if Trooper Sentak had explained
the consequences of refusing to sign the form, at which point Trooper Sentak stated:
Yes. On the side of the road when I originally read you the
form. I was standing directly next to you. I said, I’m going
to start right here where it says [“]It is my duty as a police
officer to inform you of the following[”] -- and I read
verbatim down -- as well as you’re more than welcome to
follow along.
(N.T. at 13.)
Licensee testified on his own behalf, conceding that he was drinking on
the night of the incident and that it was a mistake. (N.T. at 15.) However, Licensee
disputed that Trooper Sentak read him the warnings on the DL-26 form, or that Trooper
95), repealed this provision. Section 5 of Act 95 states: “This act shall take effect in 180 days [April
22, 2019.]” Id.
4
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 - 780-144.
4
Sentak informed him of the consequences of refusing a blood test. (N.T. at 15, 17.)
Instead, Licensee maintained that “at no point did I ever really technically refuse the
blood test.” (N.T. at 20.) Licensee further explained:
I’m a reasonable person, and I have a reasonable mind. And
if I was -- if this officer would have said to me that the
consequences for not taking this blood test is that your
license will be suspended for a year, there is no way I would
have denied this. There is no way.
....
I was drinking, and I was wrong, but to refuse to give a blood
test and have my license suspended is just not true. I would
not have done that. I never refused a blood test on [those]
grounds. I never said I was going to refuse a blood test. I
had a piece of paper sat in front of me, and he asked me about
a blood test. I said, [“]Why do I have to take a blood test?
Because I just took a BAC test, a breathalyzer test.[”]
....
But I just do not recall him telling me. I don’t even believe
he did.
(N.T. at 15, 17-18.)
Licensee testified that once Trooper Sentak transported Licensee to the
police barracks, Trooper Sentak showed him the DL-26 form before being
fingerprinted. (N.T. at 19.) Licensee explained to the trial court that Trooper Sentak
asked him to sign the form to acknowledge that he had refused the blood test, but he
declined, stating “Well, I’m not signing anything that I don’t know what I’m signing[.]”
Id. Licensee conceded that he did not read the form. Id. According to Licensee, once
Trooper Sentak fingerprinted him, he was released. Id. Licensee testified that when
he received the July 18, 2019 notice of suspension in the mail, he “could not believe
it” and did not understand why his license was suspended. Id.
5
By order dated January 21, 2020, the trial court denied and dismissed
Licensee’s appeal and directed that the one-year suspension of his operating privilege
be reinstated. (O.R. Item No. 6.) Licensee thereafter filed a notice of appeal. (O.R.
Item No. 8.)5 By order dated February 11, 2020, the trial court directed Licensee to
file a concise statement of errors complained of on appeal within 21 days of entry of
the order. (O.R. Item No. 9.) On February 27, 2020, Licensee filed his concise
statement, alleging that the trial court erred by admitting his certified driving history,
which he claimed was irrelevant and prejudicial, and by allowing Trooper Sentak to
testify. (O.R. Item No. 10.) Licensee disputed that he refused a blood test and asserted
that a reasonable person would not refuse a blood test if he knew his license would
automatically be suspended. Id.
The trial court thereafter issued an opinion in support of its January 21,
2020 order. (O.R. Item No. 11, Trial court op.) With respect to Licensee’s argument
concerning the admission of his certified driving history, the trial court noted that
Licensee did not object to the admission of that document at the hearing. (Trial court
op. at 7.) Because Licensee failed to object, the trial court determined that Licensee
waived his right to raise the argument on appeal. Id. The trial court noted that even if
this objection was not waived, Licensee failed to establish how the admission of the
certified driving history was prejudicial. Id. at 8. The trial court concluded that the
certified driving history was not “overly prejudicial” given that Licensee freely
admitted that he was drinking and driving on the night in question. Id.
With regard to Licensee’s argument that Trooper Sentak failed to read the
warnings on the DL-26 form, the trial court indicated that the credible testimony of
Trooper Sentak established that Licensee received the appropriate warnings. Id. at 8-
5
Licensee initially appealed to the Superior Court, which transferred the matter to this Court
by order dated March 23, 2020.
6
9. The trial court determined that Trooper Sentak read the four warnings on the DL-
26 form to Licensee and again asked Licensee to submit to the blood test when he was
transported to the police barracks. Id. at 8. The trial court noted that Licensee “even
stated in his testimony that he saw the DL-26 form but admittedly did not read it.” Id.
Discussion
On appeal,6 Licensee first argues that the trial court erred in admitting his
certified driving history, which included a notation that Licensee had been previously
arrested and convicted of possession of a controlled substance and lost his driver’s
license for six months as a result. More specifically, Licensee argues that his prior
conviction and license suspension had “nothing to do with the alleged violation of the
Implied Consent Law.” (Weston’s Br. at 13.) He also suggests, without elaboration,
that “the Certified Driving History played a major part in determining how the criminal
court proceeded for a first time DUI defendant.” Id. We agree with the trial court that
this issue has been waived.
At the hearing, DOT’s counsel moved to admit three exhibits including
the notice of suspension, the DL-26 form, and Licensee’s certified driving history.
Noting that Licensee was pro se, the trial court explained the concept of objecting to
the evidence and asked whether Licensee had any objections to DOT’s evidence. The
trial court asked DOT’s counsel to again list the proffered documents and added its
own explanation of each one. (N.T. at 2-6.) After the trial court’s explanation,
Licensee stated he had no objections to the documents. Id. at 6. Licensee did not
challenge or raise any issue regarding DOT’s exhibits before the trial court. Thus, this
6
Our scope of review is limited to determining whether the findings of fact are supported by
substantial evidence or whether the trial court committed an error of law or an abuse of discretion in
reaching its decision. Piasecki v. Department of Transportation, Bureau of Driver Licensing, 6 A.3d
1067, 1070 n.7 (Pa. Cmwlth. 2010).
7
issue is waived. Pa.R.E. 103(a) (providing that if evidence is admitted, a party
preserves a matter for appeal by timely objecting and stating the specific ground for
the objection); see also Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived
and cannot be raised for the first time on appeal.”).
Moreover, Licensee’s argument, even if not waived, is without merit.
First, Licensee does not explain how introduction of his certified driving history
prejudiced him. DOT had the burden to prove that
(1) Licensee was arrested for violating Section 3802 of the
Vehicle Code by a police officer who had “reasonable
grounds to believe” that Licensee was operating or was in
actual physical control of the movement of a vehicle while in
violation of Section 3802 (i.e., while driving under the
influence); (2) Licensee was asked to submit to a chemical
test; (3) Licensee refused to do so; and (4) Licensee was
specifically warned that a refusal would result in the
suspension of his operating privilege[] and would result in
enhanced penalties if he was later convicted of violating
Section 3802(a)(1).
Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d
30, 34 (Pa. Cmwlth. 2005). DOT established each of these elements. With respect to
Licensee’s suggestion that the trial court was negatively influenced by his prior arrest,
there is nothing to indicate that was the case. Failure to submit to chemical testing
results in a one-year suspension pursuant to section 1547(b)(1)(i) of the Vehicle Code,
which is the penalty the trial court imposed. We therefore reject Licensee’s bald
assertion that this evidence was irrelevant and prejudicial.
In his second issue, Licensee contends that, contrary to the trial court’s
conclusion, he did not refuse the blood test. He argues the trial court should have
applied an objective reasonable person standard when deciding whether Licensee
refused chemical testing under section 1547(b)(1)(i) of the Vehicle Code. (Licensee’s
8
Br. at 4, 14.) (“The court must decide in all probability will an educated reasonable
person refuse a blood test if he … knew of the consequence of an automatic suspension
of his driver’s license for one year and all the penalties that come with it. What would
a reasonable person do?”). He contends that if Trooper Sentak had read the warnings,
and informed him of the possibility of an automatic one-year license suspension, then
the trial court was obligated to conclude that “as an educated reasonable person, [he]
would have signed and gave blood that very night” because no reasonable person would
have refused testing knowing that his license would be suspended for a year.7 Id. at
14. We reject Licensee’s rationale. The implied consent standard does not contemplate
reasonableness because anything less than unequivocal assent constitutes a refusal
under the law. Department of Transportation, Bureau of Driver Licensing v. Renwick,
669 A.2d 934, 939 (Pa. 1996); McKenna v. Department of Transportation, Bureau of
Driver Licensing, 72 A.3d 294, 298 (Pa. Cmwlth. 2013); Lanthier v. Department of
Transportation, Bureau of Driver Licensing, 22 A.3d 346, 348 (Pa. Cmwlth. 2011).
Applying a reasonable person standard in this situation would be antithetical to the very
purpose of the Implied Consent Law, which requires cooperation with blood-alcohol
testing as a condition of the privilege of driving on state roads. See Missouri v.
7
Licensee also argues for the first time in his Statement of Questions Involved that he
complied with the Implied Consent Law because he submitted to a breathalyzer test. (Licensee’s Br.
at 11.) He argues that the Implied Consent Law requires that the driver either submit to a blood or
preliminary breath test, and since he complied with the preliminary breath test, he did not refuse.
First, this issue is waived for failure to raise it before the trial court, Pa.R.A.P. 302(a), and because
the argument is not developed with caselaw or argument. Stein v. Department of Transportation,
Bureau of Licensing, 857 A.2d 719 (Pa. Cmwlth. 2004), as amended (Sept. 10, 2004). Even if the
issue was not waived, it is without merit. It is well settled that agreeing to a preliminary breath test
does not satisfy the requirement to submit to chemical testing for which a refusal does result in a
suspension. Gregro v. Department of Transportation, Bureau of Driver Licensing, 987 A.2d 1264,
1268 (Pa. Cmwlth. 2010). See also Sitoski v. Department of Transportation, Bureau of Driver
Licensing, 11 A.3d 12, 20 (Pa. Cmwlth. 2010) (the completion of a preliminary breath test does not
satisfy the chemical testing requirements of Section 1547(a)(1) of the Vehicle Code).
9
McNeely, 569 U.S. 141, 161 (2013) (“All 50 states have adopted implied consent laws
that require motorists, as a condition of operating a motor vehicle within the State, to
consent to [blood alcohol concentration] testing if they are arrested or otherwise
detained on suspicion of a drunk-driving offense.”).
Licensee also challenges the trial court’s factual determination that
Trooper Sentak read the DL-26 form warnings to Licensee, and that Licensee
knowingly refused to submit to a blood test. Licensee asserts that he testified “under
oath” that Trooper Sentak did not read him the warnings on the DL-26 form or inform
him that his license could be suspended for a year if he refused the test. (Licensee’s
Br. at 7.) In making this challenge, Licensee is directly attacking the trial court’s
credibility determinations, arguing that the trial court erred by believing Trooper
Sentak’s testimony instead of his.
“Questions of credibility and conflicts in the evidence presented are for
the trial court to resolve, not our appellate courts.” Department of Transportation,
Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 875 (Pa. 1989). In O’Connell,
our Supreme Court explained:
As long as sufficient evidence exists in the record which is
adequate to support the finding found by the trial court, as
factfinder, we are precluded from overturning that finding
and must affirm, thereby paying the proper deference due to
the factfinder who heard the witnesses testify and was in the
sole position to observe the demeanor of the witnesses and
assess their credibility. This rule of law is well established in
our jurisprudence and is rooted in concepts of fairness,
common sense[,] and judicial economy.
Id. at 875.
Here, the trial court rejected Licensee’s testimony as not credible and
instead credited Trooper Sentak’s testimony and found that Trooper Sentak read
10
Licensee the DL-26 form warnings and gave him a proper explanation. Licensee’s
argument in this regard appears to be an attempt to persuade this Court to reweigh the
testimony and documentary evidence, which is something we cannot do. Sitoski v.
Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 17 (Pa.
Cmwlth. 2010) (“[The l]icensee essentially asks this Court to reweigh the evidence,
find his evidence credible, and conclude that [DOT] failed to establish its burden of
proof. However, this Court is not vested with the authority to do so.”). Therefore, the
evidence presented by DOT supports the trial court’s determination that Licensee was
properly warned of the consequences concerning a refusal to submit to a blood alcohol
test.
Conclusion
Because DOT met its burden, Licensee was responsible for proving that
he was not capable of making a knowing and conscious refusal to take the test.
Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636,
640 (Pa. Cmwlth. 2006). Licensee failed to present any such evidence. Accordingly,
we affirm the trial court’s order denying Licensee’s statutory appeal from the one-year
suspension of his operating privilege under section 1547(b)(1)(i) of the Vehicle Code.
________________________________
PATRICIA A. McCULLOUGH, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Maurice Weston, :
Appellant :
: No. 698 C.D. 2020
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 5th day of May, 2021, the order of the Court of
Common Pleas of Bucks County, dated January 21, 2020, is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge