COM., DEPT. OF TRANSP. v. Elko

FRIEDMAN, Judge,

dissenting.

I respectfully dissent.

The majority states the issue as “whether the common pleas court erred as a matter of law in sustaining Licensee’s appeal on the grounds that he was confused regarding his right to counsel” (majority op. at 26, 624 A.2d at 719) and determines that because the Licensee was told that his “ ‘constitutional rights as a defendant in a criminal case do not apply to the taking of a chemical test[,]’ by implication, the information that the chemical test was civil rather than criminal in nature was communicated.... ” (Majority op. at 27, 624 A.2d at 720.) (Emphasis added.) I would not so easily find the implication of communication.

In Sorg, we set forth the essential elements of the initial warning, requiring:

[T]he licensee must be given, at least, the following information:

1. That the right to counsel is constitutional and applies only to criminal proceedings.

2. That the request to submit to chemical testing is not a criminal proceeding, that it is a civil proceeding, but the licensee’s refusal to submit to the testing may be introduced in evidence in a subsequent criminal proceeding.

3. That the licensee does not have a right to contact an attorney or anyone else before taking the test nor does he have the right to remain silent as to the testing procedures; that is, licensee must affirmatively agree to submit to the chemical testing.

Sorg, 147 Pa.Commonwealth Ct. 82, 91, 606 A.2d 1270, 1275 (1992).

While I agree that a verbatim reading of the Sorg warning is not mandatory, I also believe that all essential elements of the warning must be communicated so that a defendant can make an informed refusal. Department of Transportation, Bureau of Driver Licensing v. Sorg, 147 Pa.Commonwealth Ct. 82, 606 A.2d 1270, petition for allowance of appeal denied, 531 Pa. 656, 613 A.2d 561 (1992); see also Department of Transportation v. Hoover, 147 Pa.Commonwealth Ct. 70, 606 A.2d 1264 (1992).

However, the majority implies that some Sorg elements may be dispensable, stating:

When we compare the warnings and explanation given in this case with the warnings and explanation in Sorg, the only missing elements are the omission by Officer Dixon of the words “civil proceeding” and of a statement that Licensee’s refusal to submit to chemical testing may be introduced in evidence in a subsequent criminal proceeding.

(Majority op. at 27, 624 A.2d at 720.)

In my view, these “only missing elements” are essential elements which must be included.¹

Nor do I agree with the majority’s conclusion that the essential elements required by Sorg, although not expressly stated, were, or even could be, communicated to Elko “by implication.” Rather, I conclude from Sorg that the defendant must be told directly, rather than by implication, that the right to contact an attorney or anyone else is a constitutional right which applies only to criminal, and not to civil, proceedings and that chemical testing is civil rather than criminal in nature. It is clear to me that a reasonable person who could understand the Sorg warning could be easily confused by the warning given in this case, which lacked these two of Sorg’s essential elements.

Inferring the presence of Sorg elements, as proposed by the majority here, will not further the purposes of the implied consent law, but “will merely breed more confusion and foster additional litigation.” Ted F. Kaczorowski v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 155 Pa.Commonwealth Ct. 36, 624 A.2d 723, 727 (1993).

[An] inherent unfairness exists where, after an arrestee overtly asserts his right to counsel, the arresting officer merely offers the bald statement that such a right does not now apply. This type of “explanation” serves only to increase rather than to dispel confusion. In order to be meaningful, the explanation must also explain the reason: that the right to counsel applies only to criminal proceedings and that a chemical test request is civil and not criminal in nature.

Id. (dissenting slip op. at 4).

Therefore, I would affirm the decision of the trial court, not because the defendant was confused as a result of having been given his Miranda rights,² but on the grounds that the police officer failed to fully inform Elko why there is no right to contact an attorney or anyone else when chemical testing is requested.

McGINLEY, J., joins in this dissenting opinion.

1 . In addition, I am concerned about the danger of using a term like "only” to refer to elements designed to protect a person’s rights. An individual’s rights must be zealously guarded.

2 . I do not reach the question of whether the police officer was required to repeat the full warning after Elko indicated his confusion, because I do not believe that the initial warning contained the essential elements.