A. Moody v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amischa Moody, :
Appellant :
:
v. : No. 855 C.D. 2020
: Submitted: August 13, 2021
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: March 22, 2022
Amischa Moody (Licensee) appeals an order of the Court of Common
Pleas of York County (trial court) that dismissed her appeal of a one-year suspension
of her operating privilege by the Department of Transportation, Bureau of Driver
Licensing (PennDOT), for a reported refusal to submit to chemical testing, in
violation of Section 1547(b) of the Vehicle Code, 75 Pa. C.S. §1547(b). Upon
hearing the evidence, the trial court sustained Licensee’s appeal, finding that she did
not refuse consent. After PennDOT filed a motion for reconsideration, the trial court
vacated its order and reinstated PennDOT’s suspension of Licensee’s operating
privilege. On appeal, Licensee asserts that the trial court erred because PennDOT
did not prove that she refused a blood test or, in the alternative, that she was given a
meaningful opportunity to give consent.
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
The facts were established in the hearing that was conducted by the trial
court on June 24, 2020. Both the arresting officer and Licensee testified.
Officer Kyle Forry of the Northern York County Regional Police
Department testified about his arrest of Licensee on November 17, 2019. He
explained that he received a dispatch at 3:03 a.m. about reckless driving and located
the reported vehicle parked in front of a residence with its lights on and the engine
running. Officer Forry woke Licensee, the sole occupant of the vehicle, and found
that she smelled of alcohol. He requested her to leave the vehicle and then conducted
standardized field sobriety tests. Concluding that she failed them, he transported
Licensee in handcuffs to Central Booking, where she was immediately taken to a
phlebotomist. Officer Forry read the Implied Consent Warning Form, i.e., the DL-
26 Form, and asked Licensee if she would consent to a blood test. After a few
seconds, Officer Forry repeated the question. She responded that she needed time
to think. Officer Forry testified that “I allowed her more time to think,” which he
described as several more seconds. Notes of Testimony, 6/24/2020, at 11-12 (N.T.
__); Reproduced Record at 24-25 (R.R. __). When Officer Forry again asked
Licensee to submit to a blood draw, she responded that she wished to read the form.
N.T. 12; R.R. 25. After giving Licensee time to read the form, Officer Forry asked
Licensee, for the fourth time, whether she would submit to the blood draw. She
responded, according to Officer Forry, that she would “take the fine” and “was not
going to give [him] blood.” N.T. 12; R.R. 25.
Officer Forry testified that he then signed the DL-26 Form in two
places. The first signature confirmed that he read the form to Licensee. The second
signature confirmed that Licensee refused to sign the DL-26 Form or to consent to
2
chemical testing. Officer Forry estimated that the entire exchange, from their arrival
at Central Booking to his signature on the DL-26 Form, took three to five minutes.
On cross-examination, Officer Forry acknowledged that Licensee did
not actually say that she would not give blood. Rather, he construed her statement
that she “would take the fine” as conveying that message. N.T. 12; R.R. 25. He also
agreed that Licensee had asked him questions about the DL-26 Form, but he could
not recall their content. He denied that Licensee offered to give blood at any point
in the process. N.T. 17; R.R. 30. However, after listening to a recording from
Licensee’s preliminary hearing, Officer Forry testified as follows:
I apologize. I did leave the room . . . or, I did attempt to walk
out, and she did, as I was walking out, attempt to say she would
take the test.
N.T. 22; R.R. 35.
Upon questioning by the trial court, Officer Forry testified that Licensee
requested more time to look at the DL-26 Form. He confirmed that as he started to
leave the room, Licensee stated that she would take the test. Finally, he confirmed
that the DL-26 Form had not been filled out when she gave her consent.
Licensee then testified. She agreed that the entire process at Central
Booking took approximately three to five minutes. She testified that she had
questions and was frustrated by Officer Forry’s brief responses, which did not
answer her questions. Instead, he just kept repeating his request for consent.
Licensee testified that she never refused to submit to a blood test. As for her
statement that she would pay the fine, Licensee explained that at Central Booking a
sheriff told her that there was a warrant for her arrest because of an unpaid ticket for
parking next to a fire hydrant. That same individual advised Licensee that she would
not be released until she paid this fine. This left her “confused . . . very confused.”
3
N.T. 27; R.R. 40. Licensee did not recall whether she was asked to sign the DL-26
Form, but she did remember that in response to her consent to the blood test, Officer
Forry stated that “he didn’t want to play [her] games.” N.T. 29; R.R. 42.
On cross-examination, Licensee stated that after each of Officer Forry’s
requests for consent, she asked questions but received no response. She insisted that
she did not refuse to take the blood test. The trial court then engaged in the following
exchange with Licensee:
Court: When did you say you would take the test?
[Licensee]: I mean, he said he was going to take that as a refusal,
and then I said I’ll give you blood. Then he said he wasn’t going
to play my games. I wasn’t playing games. I wasn’t being
facetious or anything.
N.T. 30; R.R. 43.
The trial court sustained Licensee’s appeal. Crediting Officer Forry’s
testimony, the trial court nevertheless found that Licensee did not refuse consent.
Rather, “[s]he said let me think about that.” N.T. 34; R.R. 47. The trial court
observed that Licensee’s response was “not unequivocal and she did in the final
analysis agree.” N.T. 35; R.R. 48.
Thereafter, PennDOT filed a motion for reconsideration. It argued that
anything less than an immediate assent constitutes a refusal under Section 1547 of
the Vehicle Code, 75 Pa. C.S. §1547. The trial court vacated its earlier order,
dismissed Licensee’s appeal, and reinstated her license suspension. Licensee then
appealed to this Court.
On appeal,2 Licensee raises two issues. First, she contends that the trial
court erred in reversing its decision to sustain Licensee’s appeal in light of its finding
2
“Our standard of review in a license suspension case is to determine whether the factual findings
of the trial court are supported by competent evidence and whether the trial court committed an
4
that she did not refuse consent. Second, in the alternative, she contends that the trial
court erred because Licensee was not provided a meaningful opportunity to consent
to chemical testing because she was not asked to sign the DL-26 Form.
We begin with a review of the law. Section 1547(b) of the Vehicle
Code states, in relevant part, as follows:
(b) Civil penalties for refusal. --
(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.
***
(2) It shall be the duty of the police officer to inform the
person that:
(i) the person’s operating privilege will be
suspended upon refusal to submit to chemical
testing and the person will be subject to a
restoration fee of up to $2,000; and
(ii) if the person refuses to submit to chemical
breath testing, upon conviction or plea for
violating section 3802(a)(1), the person will
be subject to the penalties provided in section
3904(c) (relating to penalties).
75 Pa. C.S. §1547(b). This Court has construed the requirements of Section 1547(b)
as follows:
error of law or an abuse of discretion.” Negovan v. Department of Transportation, Bureau of
Driver Licensing, 172 A.3d 733, 735 n.4 (Pa. Cmwlth. 2017).
5
A licensee need not explicitly refuse to submit to testing but may
demonstrate through his overall conduct a general unwillingness
to submit to testing. . . . Officers are not required to “spend effort
either cajoling the licensee or spend time waiting to see if the
licensee will ultimately change his mind.” Broadbelt v.
Department of Transportation, Bureau of Driver Licensing, 903
A.2d 636, 641, n.7 (Pa. Cmwlth. 2002) (punctuation omitted)
(quoting King v. Department of Transportation, Bureau of
Driver Licensing, 828 A.2d 1, 5 n.8 (Pa. Cmwlth. [2002]))[.] . . .
Whether a licensee’s conduct constitutes a refusal to submit to
chemical testing is a question of law fully reviewable by this
Court.
Walkden v. Department of Transportation, Bureau of Driver Licensing, 103 A.3d
432, 440 (Pa. Cmwlth. 2014) (holding that licensee’s demand that handcuffs be
removed as a condition of consenting to blood test, after two express refusals,
constituted a refusal to consent to blood test) (internal citations omitted).
In her first issue, Licensee contends that her “overall conduct” did not
demonstrate a “general unwillingness” to submit to a blood test. Id. Indeed,
Licensee expressly agreed to take the test and did so before Officer Forry signed the
DL-26 Form to record his finding that Licensee had refused consent. Further, she
was never asked to sign the DL-26 Form. Accordingly, PennDOT did not meet its
burden of proof, and the trial court erred in otherwise holding upon reconsideration.
Ironically, in its PA. R.A.P. 1925(a) opinion, the trial court agrees with
Licensee, explaining, inter alia, that Licensee “did not make a refusal. She was
asking questions that the officer was not answering in his haste to garner consent.”
Trial Court Op., 11/16/2020, at 7; R.R. 78. Further, Licensee
credibly testified that she was, at the same time that she was
being processed on the [driving under influence], being
presented with an unrelated warrant, which she stated she would
pay the fine on. It is clear to this Court that the statement about
6
paying a fine was not directed at her DUI blood draw
predicament.
Id. (emphasis added). The trial court concluded that asking questions of the officer
for a few minutes “does not strike this Court as a refusal.” Id. at 9; R.R. 80. The
trial court described PennDOT’s legal position on what constitutes a refusal to
consent as “tantamount to railroading.” Id. at 10; R.R. 81. The trial court concluded
its opinion with the observation that if PennDOT has correctly summarized “current
jurisprudence” in this area of law, then this Court should revisit that jurisprudence.
Id.
PennDOT argues that Officer Forry had no obligation to answer
Licensee’s questions or to ensure that she understood the DL-26 Form. A licensee’s
asserted “confusion” does not excuse the licensee from the obligation to give an
unequivocal assent. Further, a licensee’s change of mind will not vitiate a refusal.
Relying on McKenna v. Department of Transportation, Bureau of Driver Licensing,
72 A.3d 294 (Pa. Cmwlth. 2013), PennDOT argues that Licensee’s conduct
manifested a refusal to consent and, thus, her subsequent assent was of no moment.
The law is clear “(1) that the question of whether a licensee has refused
to submit to a chemical test is one of law based upon facts found by the trier of fact,
and (2) that anything less than an unqualified, unequivocal assent to a request to
submit to a chemical test constitutes a refusal.” McDonald v. Department of
Transportation, Bureau of Driver Licensing, 708 A.2d 154, 156 (Pa. Cmwlth. 1998).
In McDonald, we held that a licensee’s questions to the arresting officer about her
rights over a period of 10 to 15 minutes did not constitute a refusal, particularly given
the licensee’s confusion. Thereafter, in McKenna, we held that the licensee’s
repeated requests to speak to an attorney and for an explanation of the penalties over
a period of eight minutes in a hospital room, while the phlebotomist waited,
7
constituted a refusal. Notably, the licensee had been repeatedly advised that any
answer other than “yes” would constitute a refusal. The licensee acknowledged that
he did not consent to a blood test until after the officer escorted him from the hospital
to the patrol car outside the hospital. In McKenna, we relied upon Broadbelt v.
Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636 (Pa.
Cmwlth. 2016) (3 readings of the DL-26 Form followed by 12 minutes of silence
constituted a refusal).
McKenna may have refined McDonald, in that the licensee’s confusion
about the DL-26 Form does not relieve the licensee of the requirement to give
consent while still in the presence of the phlebotomist. However, McDonald remains
good law, and it held that putting questions to an officer over a 15-minute period
does not, in itself, constitute a refusal, particularly where the licensee began to sign
the DL-26 Form while continuing her questions about calling an attorney. It is also
the law that this Court does not make factual findings. Reinhart v. Department of
Transportation, Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008).
Rather, we determine whether a licensee has refused chemical testing “under the
facts found by the trial court [and] not under the testimony [PennDOT] prefers.” Id.
at 765-66 (quoting McDonald, 708 A.2d at 156).
Here, the trial court credited the testimony of both Officer Forry and
Licensee. The trial court specifically credited Licensee’s explanation of her “pay
the fine” statement to the officer. Stated otherwise, the trial court rejected the
officer’s inference that Licensee’s statement about the fine communicated a refusal.
We also are bound by the trial court’s finding that Licensee’s very next
communication to the officer was an unequivocal assent to the blood test. Based on
the factual findings of the trial court, PennDOT did not prove a lack of consent by
8
Licensee simply because she put several questions to the officer over the course of
a three- to five-minute colloquy.3
To be sure, the arresting officer need not spend time “cajoling the
defendant” to take the blood test or wait to see if she will change her mind and agree
to a blood test. Appeal of Miller, 470 A.2d 213, 214 (Pa. Cmwlth. 1984) (repeated
refusals to take a breathalyzer test not vitiated by a change of mind 20 minutes later).
Here, the trial court found Licensee never expressed a refusal, but she did express
consent. The questions posed by Licensee over a brief period of time did not
manifest a “general unwillingness” to consent, Walkden, 103 A.3d at 440, and our
jurisprudence does not sanction “railroading,” as feared by the trial court.
For the above stated reasons, we reverse the trial court’s order granting
reconsideration and dismissing Licensee’s appeal.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge Wallace did not participate in the decision in this case.
3
Based on this conclusion, we need not address Licensee’s second issue, i.e., that PennDOT did
not prove that Licensee was given the DL-26 Form to sign or a reasonable opportunity to consent.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amischa Moody, :
Appellant :
:
v. : No. 855 C.D. 2020
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 22nd day of March, 2022, the order of the Court of
Common Pleas of York County (trial court) entered July 10, 2020, in the above-
captioned matter is REVERSED, and the matter is REMANDED for reinstatement
of the trial court’s order entered June 24, 2020.
Jurisdiction relinquished.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amischa Moody, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 855 C.D. 2020
Bureau of Driver Licensing : Submitted: August 13, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE COVEY FILED: March 22, 2022
Respectfully, I disagree with the Majority’s conclusion: “The questions
posed by [Amischa Moody (]Licensee[)] over a brief period of time did not manifest a
“general unwillingness” to consent[.]” Moody v. Dep’t of Transp., Bureau of Driver
Licensing (Pa. Cmwlth. No. 855 C.D. 2020, filed Mar. 22, 2022), slip op. at 9. The
record evidence reveals that Licensee was asked whether she would submit to a blood
test four times, and four times she did not assent. Because the law is clear that anything
less than an unequivocal assent is a refusal, and a later assent does not vitiate a refusal,
I would affirm the York County Common Pleas Court’s (trial court) order.
On November 17, 2019, Northern York County Regional Police Officer
Kyle Forry (Officer Forry) received a dispatch at 3:03 a.m. about reckless driving. He
located the reported vehicle parked in front of a residence, occupied, with its lights on,
and the engine running. Officer Forry woke Licensee, the sole occupant of the vehicle,
and found that she smelled of alcohol and had bloodshot, glassy eyes. He requested
that Licensee exit the vehicle and he conducted standardized field sobriety tests.
Officer Forry concluded that Licensee failed the tests, and transported her to central
booking, where she was immediately taken to a phlebotomist.
Officer Forry read the Commonwealth of Pennsylvania, Department of
Transportation’s (DOT) Form DL-26 warnings (Form DL-26)1 to Licensee, and asked
Licensee if she would consent to a blood test. After a few seconds of no response,
Officer Forry repeated the question. Licensee responded that she needed time to think.
Officer Forry testified that he allowed her more time to think. When Officer Forry
again asked Licensee to submit to a blood draw, she responded that she wished to read
the Form DL-26. After giving Licensee time to read the Form DL-26, Officer Forry
asked Licensee, for the fourth time, whether she would submit to the blood draw.
Licensee responded that she would take the fine.2 Officer Forry stated that he deemed
that a refusal and walked out of the room. As Officer Forry was leaving the room,
Licensee stated she would take the test. Officer Forry then signed the Form DL-26 in
two places. The first signature confirmed that he read the Form DL-26 to Licensee.
The second signature confirmed that Licensee refused to sign the Form DL-26 or to
consent to chemical testing.
The sole issue before this Court is whether Licensee refused chemical
testing.
“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); see also Park
v. Dep’t of Transp., Bureau of Driver Licensing, 178 A.3d
274, 281 (Pa. Cmwlth. 2018). The question of refusal by a
licensee to consent to chemical testing “turn[s] on a
1
The DL-26 warnings are the warnings established pursuant to Section 1547(b)(1)(i) of the
Vehicle Code, 75 Pa.C.S. § 1547(b)(1)(i), part of what is commonly referred to as the Implied Consent
Law.
2
When asked what she meant when she said she would pay the fine, Licensee responded:
“[T]hey had brought someone that said [she] couldn’t leave until [she] had a ticket [sic], a fire hydrant
ticket, and that [she] couldn’t leave until [she] signed a paper.” Reproduced Record at 40.
AEC - 2
consideration of 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.
Factor v. Dep’t of Transp., Bureau of Driver Licensing, 199 A.3d 492, 496-97 (Pa.
Cmwlth. 2018) (bold and underline emphasis added).
Pennsylvania courts have long and consistently held that
anything less than an unqualified, unequivocal assent to
submit to chemical testing constitutes a refusal to consent
thereto. See Dep’t of Transp., Bureau of Driver Licensing
v. Renwick, . . . 669 A.2d 934, 939 (Pa. 1996); see also
McKenna v. Dep’t of Transp., Bureau of Driver Licensing,
72 A.3d 294 (Pa. Cmwlth. 2013) (licensee’s questioning
police regarding consequences of refusal and refusing to sign
consent form constituted refusal to consent to chemical
testing); Hudson v. Dep’t of Transp., Bureau of Driver
Licensing, 830 A.2d 594 (Pa. Cmwlth. 2003) (repeated
interruption and aggressive behavior while being read
warnings constituted a refusal to consent to chemical
testing). Further, an explicit refusal is not required to find
a licensee refused to consent to chemical testing; “a
licensee’s conduct may constitute a refusal.” Park, 178 A.3d
at 281; see also Walkden v. Dep’t of Transp., Bureau of
Driver Licensing, 103 A.3d 432, 440 (Pa. Cmwlth. 2014) (a
general unwillingness to submit to testing demonstrated by a
licensee’s overall conduct demonstrated a refusal to consent
to chemical testing).
Factor, 199 A.3d at 497 (bold and underline emphasis added).
Here, Officer Forry asked Licensee four separate times whether she would
consent to a blood draw. At no point did Licensee “assent to submit to chemical
testing.” Park, 178 A.3d at 281. Rather, she asked for time to think and to read the
Form DL-26, which Officer Forry permitted. Further, it was not until after the fourth
time Officer Forry asked her whether she would submit to testing that Licensee said
she would pay the fine, which Officer Forry took as a refusal. In fact, Licensee did not
say she would take the test until Officer Forry was leaving the room. Because Officer
AEC - 3
Forry testified that Licensee did not make an unqualified, unequivocal assent to
chemical testing, DOT proved Licensee refused chemical testing. Park.
Specifically, Officer Forry testified:
Once in front of the phlebotomist, I read [Licensee] the
[Form] DL-26 [], which is the consent to legal blood draw.
Upon reading the form verbatim, I asked her if she was
willing to comply with the [Form DL-26] and give legal
blood [sic]. She remained silent for a few seconds, so I asked
her a second time. She advised she needed more time to
think, so I allowed her more time to think.
After a few more seconds, I asked her again[,] for a third
time[,] if she would like to submit to a blood test. She said
that she would like to read the [Form DL-26]. I handed her
the [Form DL-26] and allowed her ample time to read the
[Form DL-26].
After completing reading of the [Form DL-26] [sic], I asked
her a fourth and final time if she would like to, at which point
she told me she would take the fine . . . .
Reproduced Record (R.R.) at 24-25.3
On cross-examination, Licensee related:
Q. [Licensee], Officer Forry testified that he asked you four
times to take the test. Is that consistent with your
recollection?
A. He may have, sir.
Q. After the first time he asked you, did you say yes, I will
take the test?
A. Could you ask that one more time, please?
3
Licensee’s Reproduced Record fails to comply with the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2173 (“[T]he pages of . . . the reproduced record . . . shall be numbered
separately in Arabic figures . . . thus 1, 2, 3, etc., followed in the reproduced record by a small a, thus
1a, 2a, 3a, etc.”). However, for consistency of reference, the citations herein are as reflected in the
Reproduced Record.
AEC - 4
Q. After the first time that he asked you to take the
chemical test, did you say yes, I will take the test?
A. No, sir. I asked questions.
Q. After the second time he asked you, did you say yes, I
will take the test?
A. I asked questions.
Q. So that’s a no?
A. I asked him questions. I didn’t say I wouldn’t take it.
Q. Did you say yes, I will take the test?
A. I did not.
Q. After the third time he asked you, did you say yes, I
will take the test?
A. I did not. I had questions.
Q. After the fourth time he asked you, did you say yes, I
will take the test?
A. I had questions. I did not.
....
THE COURT: When did you say you would take the test?
[LICENSEE]: I mean, he said he was going to take that as a
refusal, and then I said I’ll give you blood. . . .
R.R. at 42-43 (emphasis added).
Section 1547(a) of the Vehicle Code, commonly referred to as the Implied
Consent Law, provides:
Any person who drives, operates or is in actual physical
control of the movement of a vehicle in this Commonwealth
shall be deemed to have given consent to one or more
chemical tests of breath or blood for the purpose of
determining the alcoholic content of blood or the
presence of a controlled substance if a police officer has
reasonable grounds to believe the person to have been
AEC - 5
driving, operating or in actual physical control of the
movement of a vehicle in violation of [Vehicle Code
S]ection[s] 1543(b)(1.1) (relating to driving while operating
privilege is suspended or revoked), 3802 (relating to driving
under [the] influence of alcohol or [a] controlled substance)
or 3808(a)(2) (relating to illegally operating a motor vehicle
not equipped with ignition interlock).
75 Pa.C.S. § 1547(a) (emphasis added).
The Pennsylvania Supreme Court has declared:
Driving in Pennsylvania is a civil privilege conferred on state
residents who meet the necessary qualifications. Under the
terms of the Implied Consent Law, one of the necessary
qualifications to continuing to hold that privilege is that a
motorist must submit to chemical sobriety testing when
requested to do so, in accordance with the prerequisites of the
Implied Consent Law, by an authorized law enforcement
officer. The obligation to submit to testing is related
specifically to the motorist’s continued enjoyment of the
privilege of maintaining his operator’s license.
Dep’t of Transp., Bureau of Driver Licensing v. Scott, 684 A.2d 539, 544 (Pa. 1996)
(citation omitted).
[W]hether a motorist’s conduct constitutes a refusal to
submit to chemical testing is a question of law. In addressing
this issue, we have consistently held that “anything
substantially less than an unqualified, unequivocal
assent” to submit to testing constitutes a refusal to do so.
[Renwick, 669 A.2d at 938]; Lanthier v. Dep[’t] of Transp[.],
Bureau of Driver Licensing, 22 A.3d 346, 348 (Pa. Cmwlth.
2011); Miele v. Commonwealth, . . . 461 A.2d 359, 360 ([Pa.
Cmwlth.] 1983).
McKenna, 72 A.3d at 298 (emphasis added; citation omitted). The law is well
established:
A licensee need not explicitly refuse to submit to testing
but may demonstrate through his overall conduct a
general unwillingness to submit to testing. Officers are not
required to “spend effort either cajoling the licensee or spend
time waiting to see if the licensee will ultimately change his
AEC - 6
mind.” Broadbelt v. Dep[’t] of Transp[.], Bureau of Driver
Licensing, 903 A.2d 636, 641 n.7 (Pa. Cmwlth. 2006).
Walkden, 103 A.3d at 440 (emphasis added; citations omitted); see also Factor, 199
A.3d at 497 (“[A]n explicit refusal is not required to find a licensee refused to consent
to chemical testing[.]”); Park, 178 A.3d at 281 (“[A] licensee’s refusal need not be
expressed in words; a licensee’s conduct may constitute a refusal.”); McKenna (After
being advised he would lose his license if he did not consent, and being read the Form
DL-26, rather than give a yes or no response, the licensee continued to ask questions.
This Court deemed licensee’s conduct a refusal.).
Here, DOT presented Officer Forry who testified that he asked Licensee
four times whether she would submit to a blood test, and four times she did not say yes.
Clearly, Licensee “demonstrate[d] through her overall conduct a general unwillingness
to submit to testing.” Walkden, 103 A.3d at 440. Accordingly, DOT proved that
Licensee refused chemical testing.
“Moreover, . . . this Court has consistently held that once a licensee refuses
chemical testing, the refusal cannot be vitiated by a later assent.” Vora v. Dep’t of
Transp., Bureau of Driver Licensing, 79 A.3d 743, 747 (Pa. Cmwlth. 2013); McKenna
(After the arresting officer deemed the licensee’s failure to assent a refusal, he walked
the licensee to the police car, at which time the licensee said he would take the test.
This Court held that the subsequent assent did not vitiate the refusal.). Here, it was not
until after Officer Forry had asked her four times to take the test, to which Licensee
admitted she did not give her assent, and as Officer Forry was leaving the room, that
Licensee stated that she would take the blood test. Because Licensee did not assent
after being asked four times whether she would take the test, her later assent did not
vitiate her refusal. Once DOT proved that Licensee had refused chemical testing, “the
burden shift[ed] 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.
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Licensee did not present any evidence to prove her refusal was not knowing and
conscious. As Licensee did not meet her burden of proving that her refusal was not
knowing and conscious, I would affirm the trial court’s order and uphold DOT’s
suspension of Licensee’s license.
_______________________________
ANNE E. COVEY, Judge
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