Brown v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

FLAHERTY, Judge.

Mary Jill Brown (Licensee) appeals from an order of the Court of Common Pleas of Delaware County (trial court) which denied her statutory appeal of a suspension of her operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (Department). The suspension was imposed pursuant to Section 1547(b)(1) of the Vehicle Code (Code), 75 Pa.C.S. § 1547(b)(1).¹ We reverse.

On October 24, 1997, Marple Township police officer Francis J. Mercadante (Officer Mercadante) observed a vehicle start to make an illegal left turn at an interchange. For reasons unknown to the officer the vehicle ceased making the illegal turn and continued in the direction it had been traveling. At that time Officer Mer-cadante turned his vehicle around and followed the vehicle "he had observed. The vehicle continued to travel in the left lane and when it reached a second interchange it made a left turn from the left travel lane instead of making the turn from the left turn lane. In addition, the light governing the turn lane was a steady red. At that point Officer Mercadante stopped the vehicle.

Officer Mercadante found Licensee was the operator of the vehicle and that her four year old daughter was asleep in a child safety seat in the rear of the vehicle. Officer Mercadante detected a strong odor of alcohol on Licensee and noted that her speech was slurred and her eyes were bloodshot. The officer administered two field sobriety tests which Licensee failed, so he placed Licensee under arrest for driving under the influence. At the time of her arrest the officer verbally informed Licensee of the requirements of the Implied Consent Law. Licensee assented to going to the hospital to take a blood test. She then asked what would happen to her daughter and was advised by the officer that her daughter would be taken back to the police station until the she returned from the hospital. Licensee then refused to go to the hospital without her daughter. The officer did not at that point record a refusal.

Licensee and her daughter were transported to the police station where Licensee was read the Implied Consent warning and was again asked to submit to a blood test. She again said she would take the test, but only if her daughter was allowed to be with her. Officer Mercadante then recorded a refusal to submit to the blood test, which was reported to the Department.

By official notice dated November 11, 1997, the Department suspended Licensee’s driving privilege for one year for refusal to submit to chemical testing. Licensee appealed to the trial court. At the de novo hearing, Licensee and Officer Mercadante testified that Licensee had agreed to the blood test on two occasions, but only if her daughter could accompany her to the hospital. Licensee testified that she had to be certain that her daughter was properly cared for. The trial court expressed sympathy with Licensee, but concluded that she had refused the blood test and denied her appeal. Licensee then appealed to this Court.

Licensee raises one issue for our review, that is whether the trial court erred in finding that Licensee, after agreeing to submit to the blood test on two occasions, had refused testing simply because she did not want to leave her child with strangers while she was taken to the hospital for the blood test.² Whether the conduct as found by the trial court constitutes a refusal is a question of law. Mueller v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90 (Pa.Cmwlth.1995).

It is well settled that to sustain a license suspension under Section 1547 of the Code, the Department has the burden of establishing that the driver (1) was arrested for drunken driving by a police officer who had reasonable grounds to believe that the motorist was operating, or actually controlling or operating the movement of a motor vehicle, while under the influence of alcohol; (2) was requested to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal would result in a license suspension. Department of Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989). Licensee argues that the Department has not met its burden of proving that Licensee refused to submit to a blood test when requested to do so. We must agree with Licensee.

The law is clear that a refusal is defined as “anything substantially less than unqualified, unequivocal assent” to chemical testing. Winebarger v. Department of Transportation, Bureau of Driver Licensing, 655 A.2d 1093 (Pa.Cmwlth.1995). In addition, because § 1547 of the Code literally requires only that a motorist submit to chemical testing, and the sanction of license suspension applies only to a refusal of such testing, we have held that a suspension under § 1547 may not be supported by a licensee’s refusal to satisfy any condition not explicitly required by § 1547. Conrad v. Department of Transportation, 142 Pa.Cmwlth. 642, 598 A.2d 336 (Pa.Cmwlth.1991). (Licensee agreed to submit to blood testing on three occasions but refused to sign any documents before being tested. This Court concluded that making the signing of a consent form a prerequisite to testing was not permissible and the refusal of the licensee to sign the consent form was not a refusal to take the test.)³

In the instant case, Licensee agreed two times to submit to blood testing as requested by Officer Mercadante. But, the officer conditioned Licensee’s test on leaving her four year old child at the police station with strangers while she was taken to the hospital to have blood drawn.⁴ This condition is not explicitly required by § 1547. While the trial court found that the officer made a reasonable attempt to explain why the child could not go along to the hospital (trial court opinion p. 3), we find absolutely no support anywhere in the record for this finding and we cannot understand why the child could not have accompanied her mother to the hospital for testing.

As we stated in Conrad, “we are not unmindful that anything substantially less than an unequivocal assent to testing constitutes a refusal. However, we do not believe that this principle extends to a situation where the police ... fail to give a licensee a meaningful opportunity to satisfy the requirements of § 1547 by imper-missibly linking extraneous requirements to the test itself.” Id. at 343. In this case, after careful consideration, we must conclude that Licensee was not given a meaningful opportunity to satisfy the requirements of § 1547. When faced with having to leave her child alone with strangers, Licensee, as any good parent would do, chose to stay with her child regardless of the consequences. She did not refuse to take the blood test, in fact she agreed to submit to the test two times. Instead, Licensee only refused to leave her child. This requirement was not imposed by the Legislature in the Vehicle Code, but was unnecessarily imposed by the officer. It was not related to the test itself and there was no explanation given for not allowing the child to accompany the mother to the hospital. Therefore, Licensee’s refusal to leave her four year old child while she submitted to a blood test was not substantially less than the unqualified, unequivocal assent to testing and does not constitute a refusal. In this specific factual situation we conclude that Licensee’s refusal to leave her four year old daughter with strangers was reasonable.

Accordingly, we conclude that the trial court erred in denying Licensee’s appeal and suspending her driving privilege for one year and the order of the trial court is reversed.

ORDER

AND NOW, this 17 ⅛ day of September, 1999, the order of the Court of Common Pleas of Delaware County, at number 97-17706, dated April 8, 1998, is reversed.

1 . Under Section 1547(b)(1) of the Code, which is popularly referred to as the Implied Consent Law, the Department is required to suspend for one year the operating privilege of any person whom a police officer reports has refused to submit to chemical testing.

2 . Our review in a license suspension case is limited to determining whether the trial court's findings of fact are supported by substantial evidence, whether errors of law were committed, or whether the trial court’s decision demonstrates a manifest abuse of discretion. Gombar v. Department of Transportation, Bureau of Driver Licensing, 678 A.2d 843 (Pa.Cmwlth.1996).

3 . While Conrad may have been overruled by this Court in Smith v. Department of Transportation, Bureau of Driver Licensing, 655 A.2d 232 (Pa.Cmwlth.1995), the Pennsylvania Supreme Court relied on Conrad in Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996). Accordingly, Conrad is again good law. See Zerbe v. Department of Transportation, Bureau of Driver Licensing, 676 A.2d 294, n. 9 (Pa.Cmwlth.1996).

4 . We note that at the time of the officer's first request the child was still asleep and had Licensee agreed to leave the child, the child would most likely have awakened at the police station amongst strangers and without her mother being present.