E.W. Boyd v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric William Boyd, :
Appellant :
:
v. : No. 498 C.D. 2022
: Submitted: February 24, 2023
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH , Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: June 21, 2023
Eric William Boyd (Licensee) appeals from the order dated April 18, 2022
and entered April 19, 2022 in the Court of Common Pleas of Bucks County (trial
court) denying his appeal of the Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Driver Licensing’s (DOT) 18-month suspension of his
operating privilege under Section 1547(b)(1)(ii) of the Vehicle Code, 75 Pa.C.S. §
1547(b)(1)(ii), commonly referred to as the Implied Consent Law,1 based on
1
The Implied Consent Law, Section 1547(b)(1)(ii) of the Vehicle Code, states in relevant part:
(1) If any person placed under arrest for a violation of section 3802 [(relating to
driving under the influence of alcohol or controlled substance)]is requested to
(Footnote continued on next page…)
Licensee’s refusal to submit to a chemical blood test. Licensee argues DOT failed
to meet its burden of proving he refused the chemical test because he was not
provided a meaningful opportunity to consent to the chemical test. Upon review, we
affirm.
BACKGROUND
By notice mailed May 31, 2021, DOT warned Licensee that his driving
privilege would be suspended for 18 months, effective July 5, 2021, due to his refusal
to submit to chemical blood testing on May 15, 2021. Licensee timely appealed to
the trial court, which conducted a de novo hearing on February 14, 2022.
At the hearing, Warwick Township Police Department’s Sergeant Aaron
Richwine (Sergeant Richwine) testified. Trial Ct. Op. at 4. The parties stipulated
that Sergeant Richwine validly stopped Licensee in Warwick Township for driving
under the influence (DUI). Id. Sergeant Richwine read Licensee the Implied
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:
....
(ii) For a period of 18 months if any of the following apply:
....
(B) The person has, prior to the refusal under this paragraph, been
sentenced for:
....
(II) an offense under former section 3731[.]
75 Pa.C.S. § 1547(b)(1)(ii)(B)(II). Here, as noted by the trial court, in 2003, Licensee was
convicted of violating former Section 3731 of the Vehicle Code, also relating to driving under the
influence of alcohol or controlled substance, which was repealed and replaced with Section 3802
in 2003, effective February 1, 2004. Trial Ct. Op. at 5.
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Consent warnings2 and Licensee initially agreed to submit to a blood draw. Id.
Sergeant Richwine transported Licensee to a medical center for the blood draw.
Sergeant Richwine testified that while waiting for the nurse to arrive, Licensee began
to waver about his consent. Reproduced Record (R.R.) at 14a, 16a. Specifically,
Licensee mentioned he was unsure about the blood draw and indicated he may want
to speak to his attorney. Id. at 14a, 16a. However, he then agreed, again stating
that he was consenting to the blood draw. Id. at 14a.
When the nurse entered the room, she requested Sergeant Richwine provide
her a case number for her chart. Trial Ct. Op. at 4. Sergeant Richwine informed the
nurse that he could not yet provide a case number but offered to text her the case
2
The Implied Consent warnings, as outlined in DOT’s DL-26 form, provide, in relevant part, as
follows:
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 privilege will be
suspended for at least 12 months. If you previously refused a chemical test or were
previously convicted of driving under the influence, you will be suspended for up
to 18 months.
4. You have no right to speak with 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.
Garlick v. Dep’t of Transp., Bureau of Driver Licensing, 176 A.3d 1030, 1034 (Pa. Cmwlth. 2018).
While Sergeant Richwine testified that he read the four numbered paragraphs “word-for-word”
from the DL-26 form, the DL-26 form Sergeant Richwine read Licensee, despite being admitted
by DOT at the hearing, was not provided with the trial court’s record.
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number upon his receipt. Id. The nurse stated that she could not conduct a blood
draw if Sergeant Richwine did not provide her a case number because she claimed
she would have no way of determining which blood came from which defendant.
Id. Sergeant Richwine showed the nurse Licensee’s license and told her the tubes
were labeled with Licensee’s name. Id. Sergeant Richwine informed the nurse that
he had 22 years of experience as a police officer and had never previously provided
a case number to obtain a blood draw. Id. At the hearing, Sergeant Richwine
testified to prior issues with this nurse and indicated that he had complained to the
nurse’s supervisor about her. Id.After Sergeant Richwine and the nurse’s interaction, Licensee became
argumentative and reluctant to provide blood. Id. Licensee indicated that the issue
between the nurse and Sergeant Richwine had to be fixed. Id. Licensee stated he
would not consent to the blood draw. Id. Sergeant Richwine attempted to assure
Licensee the tubes were not going to be mixed up, and he had nothing to be
concerned about. R.R. at 15a. After this, Sergeant Richwine and Licensee had no
further interaction. Trial Ct. Op. at 4.
In addition to Sergeant Richwine’s testimony, DOT submitted a packet of
materials to the trial court, which included the record of Licensee’s conviction for a
previous DUI, and the DL-26 form. Id. Licensee did not testify at the hearing. Id.The trial court denied Licensee’s suspension appeal on April 18, 2022, entered
April 19, 2022. In its opinion, the trial court noted it found Sergeant Richwine’s
testimony credible and indicated Licensee’s “prior self-serving statement that he was
unnerved or reluctant or unable or even incapable of submitting to the blood test
because of the nurse’s reluctance to administer the test” was insufficient to meet his
burden of proving he was unable to submit to the required testing protocols. Trial
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Ct. Op. at 3-4. Further, the trial court pointed out that neither the police nor medical
personnel imposed any additional conditions upon Licensee that fell outside the
scope of the Implied Consent Law. Id. The trial court found relevant that nothing
in the record indicated there was no alternative way of insuring the proper
identification of the vial of blood beyond the police case number. Id. at 14.
Additionally, the trial court found Licensee demonstrated a general unwillingness to
submit to testing that was not based solely on the nurse’s reluctance to administer
the blood draw. Id. Ultimately, the trial court concluded Licensee’s conduct
constituted a refusal to submit to the chemical test. Id. Licensee now appeals to this
Court.
ANALYSIS
On appeal, Licensee asserts the trial court erred in denying his suspension
appeal because DOT did not meet its burden of proving he refused the chemical test
as he was not provided with a reasonable opportunity to submit to the chemical test.
Licensee’s Br. at 9. Licensee contends that he “was, indeed, faced with a pre-
condition to taking the test. His pre-condition was to acquiesce to the risk that his
blood would be in jeopardy of getting mixed up.” Id. at 11. Licensee argues that
because he overheard the nurse telling Sergeant Richwine that his blood could be in
jeopardy of getting mixed up if she was not provided a case number for her chart,
his refusal to take the test was reasonable. Id. at 12. We disagree.
In reviewing the trial court’s decision, we are limited to “determining whether
the trial court’s findings are supported by substantial evidence, whether errors of law
have been committed, or whether the trial court’s determinations demonstrate a
manifest abuse of discretion.” McCloskey v. Dep’t of Transp., Bureau of Driver
Licensing, 722 A.2d 1159, 1161 (Pa. Cmwlth. 1999). Whether a licensee’s conduct
5
constitutes a refusal under the Implied Consent Law is a question of law that depends
on the factual determinations of the trial court. Broadbelt v. Dep’t of Transp.,
Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa. Cmwlth. 2006) (citation
omitted); Hudson v. Dep’t of Transp., Bureau of Driver Licensing, 830 A.2d 594,
599 (Pa. Cmwlth. 2003). As fact-finder in license suspension appeals, the trial court
determines the credibility and weight assigned to the evidence presented. Factor v.
Dep’t of Transp., Bureau of Driver Licensing, 199 A.3d 492, 497 (Pa. Cmwlth.
2018) (citation omitted). We will not second-guess the trial court’s credibility
determinations on appeal. Id.To sustain a license suspension, DOT bears the burden of establishing: (1) a
police officer arrested a licensee and the officer had reasonable grounds to believe
the licensee was operating a vehicle under the influence of alcohol or a controlled
substance; (2) the officer asked the licensee to submit to a chemical test; (3) the
licensee refused to take the chemical test; and (4) the officer specifically warned the
licensee that refusing the test would result in DOT revoking his or her driver’s
license. Banner v. Dep’t of Transp., Bureau of Driver Licensing, 737 A.2d 1203,
1206 (Pa. 1999). The only element at issue in this case is whether DOT met its
burden of proving that Licensee refused to submit to chemical testing.
When a police officer reads the Implied Consent warnings from a DL-26 form
to a licensee, the licensee is sufficiently apprised that if he refuses to submit to the
chemical test, his operating privilege will be suspended. Quigley v. Dep’t of Transp.,
Bureau of Driver Licensing, 965 A.2d 349, 353 (Pa. Cmwlth. 2009). Once the police
officer provides the Implied Consent warnings to the licensee, the officer has done
all that is legally required to ensure the licensee is fully advised of the consequences
of his failure to submit to chemical testing. Dep’t of Transp., Bureau of Driver
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Licensing v. Scott, 684 A.2d 539 (Pa. 1996). Beyond reading the warnings, an
officer must also “provide a licensee with a meaningful opportunity to comply with
the Implied Consent Law.” Park v. Dep’t of Transp., Bureau of Driver Licensing,
178 A.3d 274, 281 (Pa. Cmwlth. 2018) (citation omitted).
Once DOT satisfies its burden of showing that the licensee was offered a
meaningful opportunity to submit to chemical testing and refused, the burden shifts
to the licensee to prove that he was physically incapable of taking the chemical test
or that his refusal was not knowing or conscious. Kollar v. Dep’t of Transp., Bureau
of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010). “[A]nything less than an
unqualified, unequivocal assent,” to submit to chemical testing constitutes a
licensee’s refusal. Dep’t of Transp., Bureau of Driver Licensing v. Renwick, 669
A.2d 934, 938 (Pa. Cmwlth. 1996). Notably, the Pennsylvania Supreme Court
recognizes that a licensee’s subjective beliefs do not provide a sufficient justification
for refusing to comply with the Implied Consent Law. Park v. Dep’t of Transp.,
Bureau of Driver Licensing, 178 A.3d 274 (Pa. Cmwlth. 2018) (citing Scott, 684
A.2d 539).
Licensee argues he was not provided a meaningful opportunity to submit to
chemical testing, asserting his situation is akin to the scenario in Brown v.
Department of Transportation, Bureau of Driver Licensing, 738 A.2d 71 (Pa.
Cmwlth. 1999). In Brown, the police arrested a licensee, who had her four-year-old
child with her, for DUI. Id. At the time of her arrest, the officer verbally informed
the licensee of the Implied Consent Law’s requirements. Id. The licensee agreed to
take the blood test. Id. However, the officer then advised the licensee that her child
would be taken back to the police station until she returned from the hospital. Id.The licensee refused to go to the hospital without her child. Id. The officer took the
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licensee and her child to the police station and read the licensee the Implied Consent
warnings again. Id. Again, the licensee agreed to take the test, but only if her
daughter was permitted to accompany her to the hospital. Id. The officer recorded
that the licensee refused to submit to the chemical test. Id. In concluding that DOT
failed to meet its burden of proving that the licensee refused to submit to a chemical
test when requested to do so, this Court explained:
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 [the Implied Consent
Law] 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 [the Implied Consent
Law] may not be supported by a licensee’s refusal to satisfy any
condition not explicitly required by [the Implied Consent Law].
Conrad v. Department of Transportation, . . . 598 A.2d 336 (Pa.[
]Cmwlth.[ ]1991). ([The 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.)
. . . [The licensee] agreed two times to submit to blood testing as
requested by [the officer]. But, the officer conditioned [the 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. This
condition is not explicitly required by [the Implied Consent Law].
While the trial court found that the officer made a reasonable attempt
to explain why the child could not go along to the hospital . . . 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 [the Implied Consent Law]
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by impermissibly linking extraneous requirements to the test itself.” Id.
at 343. In this case, after careful consideration, we must conclude that
[the licensee] was not given a meaningful opportunity to satisfy the
requirements of [the Implied Consent Law]. When faced with having
to leave her child alone with strangers, [the 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, [the 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, [the 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
[the licensee’s] refusal to leave her four[-]year[-]old daughter with
strangers was reasonable.
Brown, 738 A.2d at 73-74 (emphasis added).
Here, Licensee argues that similar to the scenario in Brown, he was not given
a meaningful opportunity to submit to the test because he overheard a conversation
between the nurse and Sergeant Richwine, in which the nurse mentioned concerns
about not having the police case number for her charts. Unlike in Brown, neither the
nurse nor Sergeant Richwine requested or required Licensee to satisfy any condition
not explicitly required by the Implied Consent Law. Sergeant Richwine only
requested Licensee to submit to the chemical test. Thus, Licensee’s reliance on
Brown is misplaced.
Sergeant Richwine read Licensee the Implied Consent warnings, and Licensee
initially agreed to submit to the chemical test. Sergeant Richwine took Licensee to
a medical center for a chemical test. The trial court found that Licensee began to
waver before the nurse had any interaction with Sergeant Richwine. Ultimately,
Licensee did not complete the chemical test. The conversation Licensee overheard
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between the nurse and Sergeant Richwine did not create any conditions not required
by the Implied Consent Law. Accordingly, Licensee was afforded a reasonable
opportunity to satisfy the requirements of the Informed Consent Law before his
refusal.
CONCLUSION
For these reasons, we conclude the trial court did not err when it denied
Licensee’s suspension appeal. Accordingly, we affirm the trial court’s order.
______________________________
STACY WALLACE, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric William Boyd, :
Appellant :
:
v. : No. 498 C.D. 2022
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 21st day of June 2023, the Court of Common Pleas of Bucks
County’s April 18, 2022 order is AFFIRMED.
______________________________
STACY WALLACE, Judge