COM., DEPT. OF TRANSP. v. Peck

BARBIERI, Senior Judge.

The Department of Transportation (DOT) appeals here an order of the Court of Common Pleas of Montgomery County sustaining the appeal of Christopher Peck (Peck) whose operating privileges were suspended because he refused to take a breathalyzer test¹. We reverse.²

The arresting officer, called by DOT, testified that on November 14, 1987, at 1:13 A.M. he observed Peck’s vehicle driven from the center line of the highway onto the shoulder and, while driving in the southbound lane of the highway he proceeded into the northbound lane twice. The officer pursued Peck’s vehicle, observing a continuation of this dangerous and reckless driving, which he termed to be erratic driving. The officer testified as to when he had brought Peck’s vehicle to a stop as follows:

I went up to the car to speak to the operator and when I got to the car he handed me his driver’s license. I told him he was being arrested for driving under the influence of alcohol and/or drugs.

He stated to me, “I am under the influence of alcohol.”

R.R. 10a-11a.

The officer testified further that he had read to Peck the Miranda warnings twice whereupon Peck asked to speak to his lawyer, but when given the use of a telephone, declined to make the call. He also refused to answer questions on an “alcohol influence form”. When informed of the Intoximiter 300 Test he was told that if he refused this test “he would lose his license or would be suspended.” R.R. 11a.

Peck testified that he was 22 years of age; that his occupation was “general contractor,” which he had been doing for two years; and that he completed high school in the “Class of ’85”. He recalled the experience described by the officer and recalled telling the officer that “I am under the influence of alcohol.” He testified that he did not understand the form that he was asked to read and that as to the breathalyzer test “he was very foggy, confused.” R.R. 16a.

On Peck’s behalf, Robert Fisher, a psychologist with a Doctorate in Psychology, R.R. 17a, was called and testified that he had performed an evaluation of Peck thirteen months after the arrest, R.R. 27a, reaching a diagnosis and giving other testimony as follows:

A. Okay. Mr. Peck would be diagnosed as having a mixed learning disability, a generalized anxiety reaction and a dependent personality.

Q. Now, have you had an opportunity to discuss in particularity with Mr. Peck his actions on the night following his arrest?

A. Yes, I did.

Q. In light of your diagnosis do you have an explanation for the Court as to why he reacted in the way he did?

A. I think in stressful situations Chris’ thinking breaks down and he becomes very dependent and not able to use his intellectual skills.

I also think that in terms of his reading and learning disability the skills that he has are not effectively used when he is under a great deal of pressure.

R.R. 18a.

Dr. Fisher concluded that, as a result of the evaluation in his office, Peck scored at an 11 year old level. R.R. 21a.

The trial judge concluded that because Peck had a learning disability it prevented him from making a conscious and knowing refusal to submit to the test.

We note that Peck apparently did not share the trial judge’s view that he, the driver, had some intellectual deficiency. He does not question his intellectual competence to judge his own state of intoxication and to admit that he was driving under the influence of alcohol. No one suggests that this admission was not a knowing and conscious one. See Matthews v. Commonwealth of Pennsylvania, 115 Pa.Commonwealth Ct. 403, 540 A.2d 349 (1988).

Having thus admitted the legal requirements to support the suspension, the burden shifted to Peck to show through competent medical evidence that his condition prevented him from making a knowing and conscious refusal, Department of Transportation, Bureau of Driver Licensing v. Derhammer, 118 Pa.Commonwealth Ct. 364, 544 A.2d 1132 (1988), and, while this is a question of fact, Department of Transportation, Bureau of Driver Licensing v. Rogers, 110 Pa.Commonwealth Ct. 453, 532 A.2d 935 (1987), our examination of the record leads us to conclude that the trial court’s finding that Peck was incapable of making a knowing and conscious refusal is not supported by competent evidence. While the trial judge asserts support for his view, relying upon testimony of Peck’s psychologist and lay testimony of Peck and the arresting policeman, there is no competent or unequivocal opinion evidence to support the conclusion reached. The trial judge stated:

This Court also holds that because of the defendant’s learning disability, which manifests itself in difficulty integrating and processing information, the defendant met his burden of proving that he did not make a knowing and conscious refusal to submit to the breathalyzer test. The defendant’s contention was supported by competent medical testimony, (in addition this is his own testimony and that of Officer Creighton), which this Court found to be both credible and convincing. Dr. Fisher examined the defendant and diagnosed him as learning disabled with an especially difficult time processing information in stressful situations.

R.R. 38a.

There is no opinion by Dr. Fisher that this “learning disability” actually prevented Peck’s refusal in this case from being knowing and conscious. To the contrary, Dr. Fisher admitted that the alcoholic influence was a contributing factor. He stated:

Q. Dr. Fisher, when one is under the influence of alcohol isn’t it axiomatic that their cognitive abilities are somewhat impaired?

A. Yes. '

Q. And isn’t it possible then that the reason why Mr. Peck didn’t understand what was happening to him was because by his own admission he was under the influence of alcohol?

A. That is a possibility, a contributing factor.

R.R. 22a (emphasis added).

He also testified:

A. It could have been [that] the alcohol could have played an affect [sic].

There is no statement that Peck’s lack of cognitive abilities played any greater role in his refusal of the test than did his intoxication.³

Furthermore, the arresting officer does not support the trial judge’s view. He testified:

Q. In your affidavit of probable cause you state that Peck appeared confused. Did he appear confused to you at the police station?

A. Yes, sir, but no more than any other person under the influence.

R.R. 13a (emphasis added).

Aside from the question of whether there is the competent medical opinion of sufficient certainty to prove an unconscious and unknowing refusal that we have required in the past, Derhammer, we have here a driver who is licensed and thereby presumed to be sufficiently knowledgeable to fulfill the certifications that go with such licensing.⁴ We believe that this presumption places a further burden on the driver who claims intellectual immaturity as a defense to admitted driving while intoxicated. His lack of intellectual maturity should not provide a license to disregard the driving rules.

If driving under the influence of alcohol can be excused on the basis of lack of some degree of intellectual functioning under stress, such a ruling will surely provide a broad avenue to legalize drunken driving by a vast percentage of intoxicated persons, thus worsening one of our society’s major problems.

Since our examination of the record in this case reveals no sufficient competent medical opinion to support the trial judge’s opinion that Peck was incapable of making a knowing and conscious refusal, Derhammer, we will reverse.⁵

ORDER

NOW, April 12, 1990, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is hereby reversed and the suspension imposed by the Department of Transportation is reinstated.

1 . See Section 1547(b) of the Vehicle Code (Code), 75 Pa.C.S. § 1547(b).

2 . This case was reassigned to the opinion writer on January 19, 1990.

3 . We note that diminished mental capacity due in part to alcohol consumption is not a valid defense to a license suspension. Department of Transportation, Bureau of Traffic Safety v. Andrews, 95 Pa. Commonwealth Ct. 338, 505 A.2d 412 (1986).

4 . See Section 1508 of the Vehicle Code, 75 Pa.C.S. § 1508.

5 . We can discern no basis for concluding that the Legislature would have the intention to create a new legal defense — a defense based on educational considerations: such considerations are for the licensing authorities and could hardly provide a defense or excuse a refusal under Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b).