A. Moody v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amischa Moody, :
Appellant :
:
v. : No. 864 C.D. 2021
: Submitted: March 3, 2023
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: May 9, 2023
Amischa Moody (Licensee) appeals an order of the Court of Common
Pleas of York County (trial court) upholding the suspension of her operating
privilege by the Pennsylvania Department of Transportation, Bureau of Driver
Licensing (PennDOT), for refusing to submit to chemical testing after her arrest for
driving under the influence. Licensee argues that PennDOT did not meet its burden
of proving that she refused to submit to chemical testing as set forth in Section
1547(b)(1) of the Vehicle Code, known as the Implied Consent Law.1 For the
reasons that follow, we affirm the trial court.
1
75 Pa. C.S. §1547(b)(1). It states, in pertinent part, as follows:
(1) If any person placed under arrest for a violation of section 3802 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.
(ii) For a period of 18 months if any of the following apply:
The underlying facts are not in dispute. On January 23, 2021, while on
duty, Pennsylvania State Trooper David Owens encountered a vehicle parked on the
side of the road and found Licensee asleep in the driver’s seat. After waking
Licensee, Trooper Owens instructed her to put the car in park and step outside. The
odor of burnt marijuana and alcohol emanated from the car, and Trooper Owens then
detected the smell of alcohol on Licensee once she was outside the vehicle. Notes
of Testimony, 6/30/2021, at 21 (N.T. __); Reproduced Record at 30a (R.R. __).
Putting Licensee through various field sobriety tests, Trooper Owens
found multiple signs of impairment. Additionally, a preliminary breath test showed
a blood alcohol level of 0.203. Trooper Owens arrested Licensee for driving under
the influence and placed her in the back of the police vehicle. Trooper Owens read
the warnings on PennDOT’s DL-26B Form2 and requested Licensee to submit to a
(A) The person’s operating privileges have previously been
suspended under this subsection.
(B) The person has, prior to the refusal under this paragraph, been
sentenced for:
(I) an offense under section 3802;
(II) an offense under former section 3731;
(III) an offense equivalent to an offense under subclause (I)
or (II);
(IV) a combination of the offenses set forth in this clause.
75 Pa. C.S. §1547(b)(1).
2
The form states, in relevant part, as follows:
It is my duty as a police officer to inform you of the following:
1. You are under arrest for driving under the influence of alcohol or a
controlled substance in violation of Section 3802 of the Vehicle Code.
2. I am requesting that you submit to a chemical test of blood.
3. If you refuse to submit to the blood test, your operating privileges will
be suspended for at least 12 months. If you previously refused a chemical
test or were previously convicted of driving under the influence, your
operating privilege will be suspended for up to 18 months[.]
2
chemical blood test. Trooper Owens asked Licensee if she understood everything,
to which she replied that she did not. He then asked Licensee what part of the
warnings she did not understand, but she remained silent. He read the warnings
again and asked Licensee if she would submit to a blood test. Licensee did not
respond, which Trooper Owens construed as a refusal. From the first reading of the
warnings to Licensee, to her silence after the second reading, approximately five or
six minutes elapsed. Trooper Owens wrote “refused” on Licensee’s signature line
on the DL-26B Form from which he had read the warnings. N.T. 34-35; R.R. 43a-
44a. See also Supplemental Reproduced Record at 5b (S.R.R. __).
By notice of February 23, 2021, PennDOT informed Licensee that her
operating privilege was suspended for 18 months for “chemical test refusal.”3 R.R.
4a. Licensee appealed the suspension, and the trial court held a hearing on June 30,
2021.
Trooper Owens testified to the above-recited facts. Licensee testified
that she “was going to ask questions [but Trooper Owens] didn’t give [her] time to
[do so].” N.T. 40; R.R. 49a. She further testified that while Trooper Owens was
reading the Implied Consent warnings, “there were tractor trailers driving back and
forth[.]” N.T. 41; R.R. 51a. In addition, she testified that she has “trouble hearing,”
4. You have no right to speak to an attorney or anyone else before deciding
whether to submit to testing. If you request to speak with an attorney or
anyone else after being provided these warnings or you remain silent when
asked to submit to a blood test, you will have refused the test.
Supplemental Reproduced Record at 5b (S.R.R. __) (emphasis added).
3
As noted by PennDOT, Licensee’s driving record showed that she had committed a prior
violation on November 17, 2019. As a result, PennDOT imposed an 18-month suspension
pursuant to 75 Pa. C.S. §1547(b)(1)(ii)(A), which provides that a subsequent offense will result in
an 18-month suspension. However, Licensee successfully appealed her prior suspension. Thus,
if this Court affirms the trial court, PennDOT will impose a 12-month suspension in accordance
with 75 Pa. C.S. §1547(b)(1)(i). PennDOT Brief at 11 n.4.
3
and she believed there was a “Plexiglass” divider in the vehicle. N.T. 42-43; R.R.
52a-53a. Licensee added that she is “scared of the police.” N.T. 42; R.R. 52a.
At the conclusion of the hearing, the trial court issued a decision from
the bench dismissing Licensee’s appeal. The trial court found that Trooper Owens
requested Licensee to submit to a chemical test of her blood, but she refused in spite
of being warned that a refusal would result in a suspension of her operating privilege.
The trial court upheld PennDOT’s suspension of her operating privilege. Licensee
appealed to this Court.4
On appeal, Licensee raises one issue. She contends that PennDOT did
not meet its burden of proving that she knowingly and consciously refused to submit
to a chemical blood test. PennDOT rejoins that the record is clear that Licensee did
not agree to submit to a blood test.
We begin with a review of the relevant law. To sustain a suspension
of a licensee’s operating privilege under the Implied Consent Law, PennDOT must
establish that the licensee was arrested for driving under the influence by a police
officer; was asked to submit to a chemical test; refused to do so; and was warned
that refusal might result in a license suspension. Banner v. Department of
Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999).
Whether a licensee has refused a request for chemical testing is a question of law
based upon the facts as found by the trial court. Nardone v. Department of
Transportation, Bureau of Driver Licensing, 130 A.3d 738, 748 (Pa. 2015). Courts
must look to the overall conduct of the licensee to determine if her conduct
4
In reviewing an operating privilege suspension matter, this Court determines whether the trial
court’s findings are supported by substantial evidence, whether errors of law have been committed,
or whether the trial court committed a manifest abuse of its discretion. Tirado v. Department of
Transportation, Bureau of Driver Licensing, 876 A.2d 1082, 1085 n.6 (Pa. Cmwlth. 2005).
4
constituted a refusal of a chemical test. Department of Transportation v. Renwick,
669 A.2d 934, 939 (Pa. 1996). PennDOT has the burden of showing that the licensee
was offered a meaningful opportunity to comply with Section 1547 of the Vehicle
Code, 75 Pa. C.S. §1547. Petrocsko v. Department of Transportation, Bureau of
Driver Licensing, 745 A.2d 714, 716 (Pa. Cmwlth. 2000). Questions of evidentiary
weight and witness credibility fall to the trial court to resolve. Hasson v. Department
of Transportation, Bureau of Driver Licensing, 866 A.2d 1181, 1186 (Pa. Cmwlth.
2005). In Mooney v. Department of Transportation, Bureau of Driver Licensing,
654 A.2d 47 (Pa. Cmwlth. 1994), this Court explained as follows:
As long as sufficient evidence exists in the record which is
adequate to support the finding found by the trial court, as
factfinder, [an appellate court is] 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.
Id. at 50 (quoting Department of Transportation, Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873, 875 (Pa. 1989)) (emphasis added).
Licensee argues that PennDOT was required to demonstrate that it
provided her a meaningful, reasonable, and sufficient opportunity to make a
knowing and conscious choice about whether to submit to blood testing or to accept
the consequences for not agreeing to the test. Licensee contends that her overall
conduct “did not demonstrate a general unwillingness to take the test;” rather, she
was “cooperative and cordial” during her entire interaction with Trooper Owens.
Licensee Brief at 8. Trooper Owens acknowledged that Licensee did not understand
what he read to her. Licensee maintains that she was “briefly contemplating her
decision before [Trooper Owens] understood her silence to be a refusal.” Id. at 9.
5
Further, Licensee was not provided a copy of the DL-26B Form to read and “no
further discussion regarding the testing occurred.” Id.
Licensee asserts that PennDOT did not establish whether she refused
the test or merely refused to sign the DL-26B Form. She contends “[t]here is nothing
in the record indicating an independent basis for the refusal as Trooper Owens did
not ask [her] if she would undergo the testing without signing the Form[.]” Licensee
Brief at 10. Consequently, PennDOT did not establish “an independent basis” for
her refusal “apart from [Licensee] exercising [her] [] right not to sign a superfluous
form.” Id. at 9-10.
In her argument, Licensee relies on this Court’s decision in Petrocsko
for the proposition that PennDOT “should only prevail in such cases if it can
demonstrate a basis for the refusal other than the [licensee’s] insistence on not
signing the waiver.” Licensee Brief at 8 (quoting Petrocsko, 745 A.2d at 718).
There is a difference between a refusal to sign the DL-26B Form and a refusal to
undergo testing.
In addition, Licensee cites Broadbelt v. Department of Transportation,
Bureau of Driver Licensing, 903 A.2d 636 (Pa. Cmwlth. 2006), to illustrate a
situation where a licensee was given a meaningful opportunity to consider the
Implied Consent warnings. In that case, the licensee’s silence constituted a refusal
of blood testing where, over a 12-minute period, he was read the Informed Consent
Form twice; read the Form himself; and did not state that he did not understand the
warnings. Licensee argues that, by contrast, her silence was brief and followed a
statement that she did not understand the warnings. Thus, she was not provided a
meaningful opportunity to consider the warnings.
6
Licensee explains that she was not given time to have her questions
answered. She testified to having difficulty hearing the warnings because of traffic
noise and the plexiglass divider in the police vehicle. Licensee Brief at 4. Further,
Licensee’s “fear of the police [] may have caused her to pause or hesitate without
ever refusing to provide a chemical sample.” Id.PennDOT counters that any response from a licensee other than an
unqualified, unequivocal assent to submit to testing constitutes a refusal. PennDOT
Brief at 13 (citing Department of Transportation, Bureau of Traffic Safety v.
Cannon, 286 A.2d 24, 26 (Pa. Cmwlth. 1972)). PennDOT explains that the
“occasion is not one for debate, maneuver or negotiation, but rather a simple ‘yes’
or ‘no’ to the officer’s request.” PennDOT Brief at 13 (quoting Commonwealth v.
Morris, 280 A.2d 658, 660 (Pa. Super. 1971)). PennDOT argues that Petrocsko is
inapposite because, in that case, the licensee agreed to submit to a blood test while
sitting in a police officer’s vehicle. Here, Licensee refused Trooper Owens’ request
for a blood test by her conduct, i.e., silence, while she was sitting in the back of
Trooper Owens’ police vehicle. Licensee’s subsequent refusal to sign the DL-26B
Form occurred later, at the State Police barracks, and had nothing to do with her
earlier refusal of the blood test in Trooper Owens’ police vehicle.
It is not disputed that over a five- to six-minute period, Trooper Owens
twice read the DL-26B Form to Licensee and asked her what parts of the warnings
she did not understand. Licensee remained silent. Although she asserts that she was
thinking over her questions, Licensee did not testify that she intended to comply with
a request for a chemical test. Nor did she request time to think. The trial court noted
“[t]he only thing we have is [Licensee’s] subjective intent to have asked some
questions that weren’t [] actually vocalized.” N.T. 55; R.R. 65a. The trial court
7
found “no credible testimony that [Licensee] in fact claimed to not hear what
[Trooper Owens] said.” N.T. 54-55; R.R. 64a-65a.
In Petrocsko, the licensee agreed to the chemical test but refused to
execute a form to waive the hospital’s liability. This Court held that this “form is
unnecessary because the Vehicle Code [] grants civil immunity to hospitals and
medical personnel regarding the withdrawal of blood under such circumstances.”
Petrocsko, 745 A.2d at 716 (quoting Order of the Court of Common Pleas of
Westmoreland County, 3/2/1998, at 2-4)). Further, the licensee’s refusal to waive
the hospital’s liability did not revoke his earlier consent to chemical testing of his
blood. Petrocsko is distinguishable.
Here, Licensee did not consent to blood testing at any point in the
process. The warnings specifically provide that if an individual remains “silent
when asked to submit to a blood test, [she] will have refused the test.” DL-26B
Form; S.R.R. 5b. The lack of Licensee’s signature on the DL-26B Form may, or
may not, provide an independent basis for her refusal but, in itself, has little or no
relevance. Cf. Renwick, 669 A.2d at 939 (refusal to sign consent form does not
constitute refusal to take a chemical blood test).
The trial court found that Trooper Owens read the Implied Consent
warnings to Licensee two times; Licensee asked no questions; and Licensee
remained silent when asked if she would take the test. This scenario occurred over
the course of five to six minutes. We discern no error in the trial court’s conclusion
that, by her silence, Licensee communicated a refusal to submit to blood testing.
8
For these reasons, we affirm the order of the trial court denying
Licensee’s appeal of the suspension of her operating privilege.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Amischa Moody, :
Appellant :
:
v. : No. 864 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 9th day of May, 2023, the June 30, 2021, order of the
Court of Common Pleas of York County, in the above-captioned matter, is
AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita