M.T. Pettit v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marcus T. Pettit :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, : No. 661 C.D. 2023
Appellant : Submitted: April 11, 2024
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: May 8, 2024
The Pennsylvania Department of Transportation, Bureau of Driver
Licensing (DOT) appeals from the May 24, 2023 order (Trial Court Order)1 of the
Court of Common Pleas of Berks County (Trial Court) sustaining Marcus T. Pettit’s
(Licensee) statutory appeal from a 12-month driver’s license suspension
(Suspension) imposed by DOT pursuant to the Vehicle Code’s Implied Consent
Law, 75 Pa. C.S. § 1547(b) (Implied Consent Law), as a result of Licensee’s refusal
to submit to chemical testing upon his arrest for driving under the influence of
1
Although dated May 23, 2023, the Trial Court Order was not received and filed in the
Court of Common Pleas of Berks County Prothonotary’s Office until May 24, 2023. See Trial
Court Order; Reproduced Record (R.R.) at 90a.
alcohol or a controlled substance2 (DUI). Upon review, we reverse the Trial Court
Order and direct DOT to reinstate the Suspension.
I. Background and Procedural Posture
The facts necessary to decide the issues raised in this appeal are
straightforward and not in dispute. Following Licensee’s May 23, 2022 DUI arrest
by the Exeter Township Police Department, DOT notified him on June 7, 2022, that
his operating privileges would be suspended for a period of 12 months. Licensee
appealed the Suspension to the Trial Court, which conducted a hearing on March 21,
2023. See Trial Court Opinion dated August 25, 2023 (Trial Court Opinion) at 1-2;
Reproduced Record (R.R.) at 106a-07a.
At the hearing, DOT offered numerous documents for entry into
evidence, including a DOT DL-26A implied consent form (DL-26A Form)3
2
75 Pa. C.S. § 3802.
3
The DL-26A Form, entitled “Chemical Test Warnings and Report of Refusal to Submit
to a Breath Test as Authorized by Section 1547 of the Vehicle Code in Violation of Section 3802,”
contains the following warnings:
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 breath. You
must successfully complete two consecutive breath samples in order
to complete a chemical test of breath.
3. If you refuse to submit to the breath 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, your operating privilege will be suspended for up to 18
months. If your operating privilege is suspended for refusing
chemical testing, you will have to pay a restoration fee of up to
$2,000 in order to have your operating privilege restored. In
2
purportedly read to Licensee and completed by Exeter Township Police Department
Officer Ryan Kardoley, who was no longer employed by the Exeter Township Police
Department and who was unavailable to testify at the time of the hearing before the
Trial Court.4 See Trial Court Opinion at 2; R.R. at 107a. Because Officer Kardoley
was unavailable, Licensee objected to the admission of the DL-26A Form on hearsay
grounds. See id. The Trial Court admitted the DL-26A Form into evidence over
Licensee’s objection but allowed the parties to submit briefs on the issue following
the hearing, which they did. See id. Licensee offered no evidence on his own behalf
beyond cross-examination of DOT’s witnesses. See Notes of Testimony, March 21,
2023 (N.T.); R.R. at 17a-39a. Following the submission and review of the parties’
addition, if you refuse to submit to the breath test, and you are
convicted of violating Section 3802(a)(1) (relating to impaired
driving) of the Vehicle Code, then, because of your refusal, you will
be subject to more severe penalties set forth in Section 3804(c)
(relating to penalties) of the Vehicle Code. These are the same
penalties that would be imposed if you were convicted of driving
with the highest rate of alcohol, which include a minimum of 72
consecutive hours in jail and a minimum fine of $1,000.00, up to a
maximum of seven years in jail and a maximum fine of up to
$15,000.
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 breath test, you will
have refused the test.
R.R. at 46a. The “Affidavit” portion of the DL-26A Form was signed by Exeter Township Police
Department Officer Ryan Kardoley, who also signed the attestation thereon indicating that
Licensee refused to sign the DL-26A Form. See id.
4
The Trial Court granted two continuances from the original September 13, 2022 hearing
date to allow DOT to secure the appearance of Officer Kardoley at the hearing. See Trial Court
Opinion dated August 25, 2023 (Trial Court Opinion) at 2.; R.R. at 107a. When DOT explained
at the hearing on March 21, 2023, that it still had not been able to locate Officer Kardoley for the
purpose of securing his testimony, the Trial Court proceeded with a hearing on the merits. See id.
3
submitted briefs on the DL-26 Form hearsay question, the Trial Court entered the
Trial Court Order sustaining Licensee’s appeal and revoking the Suspension.5 See
Trial Court Opinion at 2-3; R.R. at 107a-08a; see also Trial Court Order; R.R. at
90a. DOT appealed to this Court.
II. Issues
DOT raises three claims on appeal.6 First, DOT claims that the Trial
Court abused its discretion by holding that the DL-26A Form was inadmissible
hearsay that could not be considered for the truth of the matter asserted. See DOT’s
Br. at 4 & 12-18. Second, DOT argues that the Trial Court abused its discretion by
holding that the DL-26A Form could not be considered for the non-hearsay purpose
of establishing that the statements contained in the DL-26A Form were made. See
id. at 4 & 18-22. Third, DOT claims the Trial Court abused its discretion when it
sustained Licensee’s appeal without considering the DL-26A Form because the DL-
26A Form was competent and admissible evidence properly introduced. See id. at 4
& 22-26.
5
The Trial Court Order consisted simply of an order with a check on a box denoting the
option “SUSTAINED and the suspension shall be RESCINDED” from a number of alternative
options on what is obviously a form order employed by the Trial Court for license suspension
appeals. See Trial Court Order. The Trial Court filed the Trial Court Opinion on August 25, 2023,
in which it explained that its rationale behind entering the Trial Court Order was that DOT failed
to meet its evidentiary burden to prove Licensee refused chemical testing because the Trial Court
determined that the DL-26A Form was impermissible hearsay. See Trial Court Opinion.
6
“Our standard of review in a license suspension case is to determine whether the factual
findings of the trial court are supported by [substantial] evidence and whether the trial court
committed an error of law or an abuse of discretion.” Negovan v. Dep’t of Transp., Bureau of
Driver Licensing, 172 A.3d 733, 735 n.4 (Pa. Cmwlth. 2017).
4
III. Discussion
A. Admission of the DL-26A Form for the Truth of the Matter Asserted
Initially, we observe that “[t]he admission of evidence is solely within
the discretion of the trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion.” Commonwealth v. Woodard, 129
A.3d 480, 494 (Pa. 2015) (quoting Commonwealth v. Reid, 99 A.3d 470, 493 (Pa.
2014)). DOT first argues that the Trial Court erred by failing to find that the DL-
26A Form was admissible into evidence for the truth of the matter asserted as a
business record. See DOT’s Br. at 12-18. DOT argues that the DL-26A Form is
admissible under the business records hearsay exceptions provided in Pennsylvania
Rule of Evidence 803(6) and/or the Uniform Business Records as Evidence Act, 42
Pa.C.S. § 6108. See id. To the extent that the DL-26A Form contains any hearsay,
we agree.
Hearsay is an out-of-court statement offered into evidence to prove the
truth of the matter asserted. See Pa.R.E. 801(c). Generally speaking, “[a]bsent an
exception, hearsay is inadmissible and cannot be admitted and relied upon by the
fact finder.” Porter Twp. Initiative v. E. Stroudsburg Area Sch. Dist., 44 A.3d 1201,
1211 (Pa. Cmwlth. 2012); see also Pa.R.E. 802. Hearsay may be admissible into
evidence, however, “as provided by [the Pennsylvania Rules of Evidence], by other
rules prescribed by the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802.
The DL-26A Form may constitute hearsay to the extent it contains out-of-court
statements offered to prove the truth of the matters asserted therein. See First Ward
Republican Club of Phila. v. Commonwealth, 11 A.3d 38, 44 (Pa. Cmwlth. 2010)
(finding police reports containing out-of-court statements offered for the truth of the
matters asserted to be hearsay). Here, the portion of the DL-26A Form relating to
5
Licensee’s refusal was offered for the truth of that matter and therefore was hearsay
to that extent.
Pursuant to the business records exception, Pennsylvania Rule of
Evidence 803(6) provides for the admission of a record7 of an act, event, or condition
where the following conditions are met:
(A) the record was made at or near the time by–or from
information transmitted by–someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6).
Additionally, the General Assembly enacted Section 6108 of the
Judicial Code, 42 Pa.C.S. § 6108, known as the “Uniform Business Records as
Evidence Act,”
7
A “record” pursuant to the business records hearsay exception includes “a memorandum,
report, or data compilation in any form[.]” Pa.R.E. 803(6).
6
to create an additional exception to the hearsay rule in
circumstances where a record of an act, a condition, or an
event was made in the regular course of business, at or near
the time of the act, condition, or event, and where the
sources of information, method, and time of preparation
were such as to justify its admission.
First Ward, 11 A.3d at 45. The Uniform Business Records as Evidence Act provides
that
[a] record of an act, condition or event shall, insofar as
relevant, be competent evidence if the custodian or other
qualified witness testifies to its identity and the mode of
its preparation, and if it was made in the regular course of
business[8] at or near the time of the act, condition or event,
and if, in the opinion of the tribunal, the sources of
information, method and time of preparation were such as
to justify its admission.
42 Pa.C.S. § 6108(b). As this Court has explained:
Under this exception, the Pennsylvania Supreme Court has
held that if a qualifying witness can provide sufficient
information relating to the preparation and maintenance of
the records to justify the presumption of trustworthiness
for the business records exception, a sufficient basis is
provided to offset the hearsay character of the evidence
and it is not necessary to produce either the preparer or the
custodian of the record at the time the entries were made.
So long as the authenticating witness can provide
sufficient information relating to the preparation and
maintenance of the records to justify a presumption of
trustworthiness of the business records of a company, a
8
As used in the Uniform Business Records as Evidence Act, the term “business” “includes
every kind of business, profession, occupation, calling, or operation of institutions whether carried
on for profit or not.” 42 Pa.C.S. § 6108(c).
7
sufficient basis is provided to offset the hearsay character
of the evidence.
First Ward, 11 A.3d at 45-46 (internal citations omitted; emphasis in original); see
also Yongs Place, Inc. v. Pa. Liquor Control Bd. (Pa. Cmwlth., No. 483 C.D. 2021,
filed May 12, 2023),9 slip op. at 9. Further,
[a]n individual may be a qualifying witness and his
testimony may lay a proper foundation for the admission
of a report if his responsibilities include the review of the
report in question and he testifies that the report was
prepared by a subordinate of his and maintained for him
by a member of his staff.
First Ward, 11 A.3d at 46; see also Yongs Place, slip op. at 9.
In Yongs Place, a police officer with oversight responsibilities testified
that a subordinate prepared certain police reports pursuant to a standing directive to
prepare such reports at or near the time of the incident in question, that, although he
did not prepare the reports himself, the officer was responsible for reviewing the
reports in question, and that such reports are maintained by electronically following
review and approval. See id., slip op. at 9-10. The officer detailed the preparation
and maintenance procedures for such reports and his review of them. See id., slip
op. at 10. Additionally, a second police officer’s personal knowledge corroborated
the documents sought to be introduced into evidence. See id., slip op. at 11. This
Court determined that such testimony “provided sufficient information relating to
the preparation and maintenance of the reports to justify a presumption of
trustworthiness under the business records exception to offset the hearsay character
9
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), unreported panel decisions of this Court issued after January 15, 2008, may be
cited for their persuasive value.
8
of the evidence[,]” and that “[a]bsent evidence indicating a lack of trustworthiness,”
the trial court properly admitted and relied upon the documents described by the
officer under the business record exception to the rule against hearsay. See id., slip
op. at 10, 11.
Likewise, in Paey Associates, Inc. v. Pennsylvania Liquor Control
Board, 78 A.3d 1187 (Pa. Cmwlth. 2013), this Court determined that a police report
fell within the Uniform Business Records as Evidence Act’s business records
exception and was admissible into evidence in an administrative agency matter
where the report’s author was unavailable but another officer testified as an
authenticating witness that he – the authenticating officer – had reviewed and
approved the report in the normal course of his responsibilities. See id. at 1195 &
1197. The Court determined that, where the authenticating witness “provided
sufficient information relating to the preparation and maintenance of the report to
justify a presumption of its trustworthiness[,]” the contents of the report were
admissible. See id.In the instant matter, Sergeant Darrin Gartner testified on behalf of
DOT at the hearing before the Trial Court. See N.T. at 10-19; R.R. at 26a-35a. Sgt.
Gartner testified that he has been employed with the Exeter Township Police
Department for 28 years and that, as a platoon sergeant, he is involved in the training
of officers. See N.T. at 10, 14; R.R. at 26a, 30a. He explained that officers are
trained to read DL-26A forms verbatim to persons under arrest for DUI either at the
hospital where chemical testing occurs or during arrest processing. See N.T. at 14-
15; R.R. at 30a-31a. Sgt. Gartner further explained that on May 23, 2022, Officer
Kardoley, who was beyond his training period, was assigned to Sgt. Gartner’s
platoon and had been so assigned for the previous six or seven months. See N.T. at
9
10, 13-15; R.R. at 26a, 29a-31a. Sgt. Gartner testified that, as platoon sergeant, he
reviewed Officer Kardoley’s paperwork on a daily basis and was familiar with
Officer Kardoley’s signature. See N.T. at 10; R.R. at 26a. Sgt. Gartner also testified
that he recognized the copies of the DL-26A Form included with DOT’s exhibit
packets, that the copies were accurate copies of the DL-26A Form completed by
Officer Kardoley and submitted to Sgt. Gartner following Licensee’s arrest on May
23, 2022, and that Sgt. Gartner recognized the signature on the DL-26A Form as that
of Officer Kardoley. See N.T. at 13-14; R.R. at 29a-30a. Sgt. Gartner explained
that Officer Kardoley handed him the completed DL-26A Form, which he thereafter
handed over to the arresting officer as per the Exeter Township Police Department’s
normal protocol for the maintenance of DL-26A forms. See N.T. at 18; R.R. at 34a.
Finally, Sgt. Gartner testified that he did not know why Officer Kardoley resigned
from the Exeter Township Police Department, but that he knew Officer Kardoley’s
resignation was not the result of any failure to read DL-26 forms. See N.T. at 17;
R.R. at 33a.
Sergeant David Bentz10 also testified before the Trial Court. See N.T.
at 3-9; R.R. at 19a-25a. As the arresting officer, Sgt. Bentz testified regarding the
specifics of Licensee’s May 23, 2022 DUI arrest. See N.T. at 4-6; R.R. at 20a-22a.
Sgt. Bentz explained that, following the arrest, Officer Kardoley was assigned to
take Licensee for chemical testing pursuant to the policies and protocols established
by the Berks County District Attorney’s Office. See N.T. at 6-7; R.R. at 22a-23a.
Sgt. Bentz explained that he did not witness the attempted chemical testing. See id.The Trial Court admitted the DL-26A Form over Licensee’s hearsay
objections and invited the parties to brief argument on the evidentiary issue for the
10
Sgt. Bentz has been a police officer for 28 years and had been with the Exeter Township
Police Department for 23 years. See N.T. at 3-4; R.R. at 19a-20a.
10
Trial Court following the hearing. See N.T. at 19, 21-23; R.R. at 35a, 37a-39a. After
receiving the parties’ briefs, the Trial Court sustained Licensee’s appeal. In the Trial
Court Opinion drafted following DOT’s appeal, the Trial Court explained its
determination on the evidentiary issue resulting from Officer Kardoley’s absence as
follows:
Licensee, as per his rights, should have the
opportunity to cross-examine Officer Kardoley. Absent
such opportunity or waiver of those rights, the Trial Court
could not consider anything Officer Kardoley might have
testified to had he been available or have made a
determination that such testimony might have been
credible. [DOT], without Officer Kardoley, could not
establish that the DL-26[A Form] was read to Licensee or
that Licensee refused testing.
Trial Court Opinion at 8; R.R. at 113a (emphasis in original). The Trial Court
continued:
In sum, [DOT] argues that the Trial Court should
have allowed it to introduce a DL-26[A] warning against
a hearsay objection because it was not proffered for the
truth of the matter asserted (when it was), should have
inferred an unavailable witness would have testified
credibly in response to questioning, and that [] Licensee
was under an obligation to proactively refute the case
against him and failure to do so should be considered the
same as acquiescing to the claims made against him.
[DOT] suggests these were mistakes in ruling, that
[Licensee’s appeal] should be denied/dismissed, and
Licensee’s [S]uspension should be reinstated.
In considering the foregoing facially incorrect
arguments, after review of the testimony and exhibits
introduced at the [h]earing, the Trial Court sustained
Licensee’s [s]uspension [a]ppeal, having found [DOT]
11
failed to meet its burden to show [] Licensee refused to
submit to a chemical test and was warned that refusal
would result in a license suspension. Failing to meet two
of the four prongs prescribed in [Department of
Transportation v.] O’Connell, [555 A.2d 873 (Pa. 1989)11]
[DOT] never shifted the burden to [] Licensee to establish
that his alleged refusal was not knowing or conscious or
that he physically was unable to take the test. These things
mandate that the Trial Court sustain the appeal.
Trial Court Opinion at 9; R.R. at 114a.
We do not agree that the DL-26A Form was hearsay not subject to an
exception. To the extent that its documentation of Licensee’s refusal constitutes
hearsay, the DL-26A Form fits within the business records exceptions of both
Pennsylvania Rule of Evidence 803(6) and the Uniform Business Records as
Evidence Act. The DL-26A Form records the acts or events of Officer Kardoley
issuing refusal warnings to Licensee and Licensee’s refusal to submit to the
requested breath testing. Pursuant to established Exeter Township Police
Department protocols, the DL-26A Form was completed at the time of the refusal
by Officer Kardoley, the police officer who administered the refusal warnings. DOT
sought to authenticate the DL-26A Form through the testimony of Sgt. Gartner, who
testified that his duties included reviewing Officer Kardoley’s reports and that the
DL-26A Form was maintained by the arresting officer pursuant to Exeter Township
Police Department protocols. Further, the Trial Court found Sgt. Gartner credible,
and no other testimony or documentation was entered into evidence to indicate that
11
“O’Connell warnings” is the term of art derived from our Supreme Court’s decision in
Department of Transportation v. O’Connell, 555 A.2d 873 (Pa. 1989), and commonly used to
denote the warnings that police in the Commonwealth are required to provide motorists arrested
for DUI regarding the refusal of requested chemical testing, which warnings regarding breath and
blood chemical testing are contained in DOT’s DL-26A and DL-26B forms, respectively.
12
the DL-26A Form lacked trustworthiness. See Trial Court Opinion at 8; R.R. at 113a
(“Sgt. Gartner testified credibly.”). Sgt. Bentz’s testimony, likewise undisputed,
corroborated that Officer Kardoley was assigned to take Licensee for chemical
testing pursuant to established protocols. These facts illustrate a sufficient basis to
offset the hearsay character of the DL-26A Form under either Pennsylvania Rule of
Evidence 803(6) or the Uniform Business Records as Evidence Act without the
production of the preparer or the custodian of the record at the time the record was
made. See Pa.R.E. 803(6); 42 Pa.C.S. § 6108(b); see also First Ward, 11 A.3d at
45-46; Yongs Place, slip op. at 10-11. Because it was covered by a hearsay
exception, the DL-26A Form could be admitted and the contents thereof could be
considered for the truth. See Paey, 78 A.3d at 1195, 1197. Therefore, the Trial
Court erred by concluding that the DL-26A Form was inadmissible hearsay and by
not considering the DL-26A Form for the truth of the matter asserted i.e., that
Licensee refused to submit to a breath test. See Yongs Place, slip op. at 10-11; Paey,
78 A.3d at 1195, 1197.
In a related argument, DOT maintains that the DL-26A Form was
admissible because it was not hearsay to the extent that it merely documented that
the requisite warning was given. Again, we agree. There is a critical distinction as
to whether a statement is offered for its truth or merely to establish that the statement
was made. This Court explained that distinction as applied to analogous
circumstances in Department of Transportation, Bureau of Traffic Safety v. Grasso,
508 A.2d 643 (Pa. Cmwlth. 1986). In Grasso, an arresting officer sought to testify
concerning the administration of the DL-26A warning to an arrestee by another
officer who was not in attendance at the suspension hearing. The trial court excluded
13
the testimony and reversed the license suspension. This Court concluded that the
trial court committed an error of law in so doing. We explained:
The trial court was correct in concluding that DOT was
required to present evidence that [the arrestee] was
requested to submit to a breathalyzer test and that he was
informed of the consequences of refusing. The trial court
erred, however, in not allowing [the arresting o]fficer . . .
to testify as to whether the administering officer made the
request and gave the requisite warning.
Any testimony given by [the arresting o]fficer . . .
concerning what the administering officer said to [the
arrestee] would not be offered to prove the truth of what
the administering officer said. Such testimony would be
offered merely to show that the administering officer made
such a statement. Our Supreme Court has said that “[t]he
hearsay rule has no application where the question is
whether certain things were said or written by a third
person and not whether they are true.” Commonwealth v.
Jacobs, . . . 284 A.2d 717, 719 ([Pa.]1971), cert. denied,
409 U.S. 856 (1972). See also Dep[’]t of Transp[.],
Bureau of Traffic Safety v. Goldman, . . . 482 A.2d 1383([Pa. Cmwlth.] 1984); Haklits v. Commonwealth, . . . 418
A.2d 772 ([Pa. Cmwlth.] 1979).
It is clear that the trial court committed an error of law in
excluding as hearsay [the arresting o]fficer[’s] . . .
testimony concerning what the administering officer said
to [the arrestee].
Id. at 644 (emphasis added).
The same distinction applies here. In other words, the written statement
of Officer Kardoley, the absent administering officer, was not offered to prove its
truth, i.e., that failure to submit to the test would result in license suspension. Rather,
it was offered merely as evidence that Officer Kardoley read the warning statement.
14
As this Court made clear in Grasso, evidence submitted for the latter purpose is not
hearsay.
In Grasso, the evidence at issue was oral testimony from the arresting
officer concerning the administering officer’s reading of the warning, whereas here,
the evidence was the administering officer’s written attestation of having given the
warning. However, there is no meaningful difference between the two for purposes
of determining whether the absent officer’s statement was hearsay. See Pa.R.E.
801(a) (defining a “statement” as “a person’s oral assertion, written assertion, or
nonverbal conduct”). Therefore, we conclude that the Trial Court here, like the trial
court in Grasso, committed an error of law in excluding as hearsay the evidence of
the statement of Officer Kardoley, the administering officer.12
B. Trial Court Failure to Consider Competent and Admissible Evidence
In its third argument, DOT argues that the Trial Court abused its
discretion by sustaining Licensee’s appeal without considering the DL-26A Form
because the DL-26A Form was competent and admissible evidence properly
introduced. See DOT’s Br. at 22-26. We agree.
12
Additionally, to the extent the Trial Court implied in its reasoning that it could not
consider the DL-26A Form because Licensee had a Sixth Amendment right, U.S. Const. amend.
VI, to confront/cross-examine Officer Kardoley, the Trial Court is mistaken. See Trial Court
Opinion at 8-9; R.R. at 113a-14a. “This Court has repeatedly ruled that the Sixth Amendment
right to confront and cross-examine witnesses does not apply to license suspension proceedings, .
. . as they are not penal in nature, but rather civil proceedings.” Stenhach v. Dep’t of Transp.,
Bureau of Driver Licensing, 651 A.2d 218, 220 (Pa. Cmwlth. 1994); see also Commonwealth v.
Xiong, 630 A.2d 446, 453 (Pa. Super. 1993) (holding that the admission of a business record under
the Uniform Business Records as Evidence Act does not violate constitutional rights to
confrontation and cross-examination because “the inherent reliability and trustworthiness of
factual entries in a business record negate the need for cross-examination” and “[r]equiring cross-
examination regarding facts contained in [a business] record . . . would therefore obviate the
purpose and need for the exception”). Accordingly, the Trial Court erred to the extent it based its
refusal to consider the DL-26A Form on a non-existent right to confrontation.
15
As this Court has observed:
To sustain a license suspension under [the Implied
Consent Law], DOT has the burden of establishing that (1)
the licensee was arrested for drunken driving by a police
officer having reasonable grounds to believe that the
licensee was driving while under the influence, (2) the
licensee was requested to submit to a chemical test, (3) the
licensee refused to do so and (4) the licensee was warned
that refusal would result in a license suspension. Once
DOT meets this burden, the burden shifts to the licensee
to establish that he or she either was not capable of making
a knowing and conscious refusal or was physically unable
to take the test.
Giannopoulos v. Dep’t of Transp., Bureau of Driver Licensing, 82 A.3d 1092, 1094
(Pa. Cmwlth. 2013) (quoting Wright v. Dep’t of Transp., Bureau of Driver Licensing,
788 A.2d 443, 445 (Pa. Cmwlth. 2001)). Further, “[d]river’s license suspension
proceedings are civil, not criminal in nature, and [DOT] must prove the elements of
its case by a preponderance of the evidence, and not beyond a reasonable doubt.”
Sebek v. Dep’t of Transp., Bureau of Driver Licensing, 714 A.2d 526, 528 (Pa.
Cmwlth. 1998).
Here, the Trial Court improperly declined to consider the DL-26A Form
in its determination of Licensee’s underlying appeal. As discussed supra, the Trial
Court should have admitted and considered the DL-26A Form pursuant to the
business records exception to the rule against hearsay. Accordingly, the Trial Court
erred by sustaining Licensee’s appeal of the Suspension without considering the DL-
26A Form.
Further, the DL-26A Form proved three of the four elements required
to support the Suspension based upon Licensee’s refusal to submit to chemical
16
testing: that police requested that Licensee submit to a breath test; that Licensee
refused to submit to the requested breath test; and that Licensee was informed that a
refusal would result in a license suspension. See DL-26A Form; R.R. at 46a. Sgt.
Bentz’s evidence satisfied the fourth requirement that DOT establish that Licensee
was arrested for driving under the influence of alcohol. This evidence sufficed to
prove the elements of a refusal by a preponderance of the evidence and suspend an
operator’s license based on an Implied Consent refusal. Licensee put forth no
evidence to contradict DOT’s proof. Accordingly, the Trial Court erred by
sustaining Licensee’s statutory appeal without considering the DL-26A Form.
To the extent Licensee requests a remand to the Trial Court for a new
hearing to afford him an opportunity to present a defense, he is not entitled to such
a remedy. See Licensee’s Br. at 18. Licensee had his chance to refute DOT’s refusal
accusations at the hearing. The Trial Court did not sustain Licensee’s hearsay
objection to the DL-26A Form, but instead admitted the DL-26A Form into evidence
over Licensee’s objection. See N.T. at 19. R.R. at 35a. As discussed supra, DOT’s
evidence satisfied the elements required to prove a license suspension based on a
licensee’s refusal to submit to requested chemical testing. As a result of the Trial
Court admitting the DL-26A Form into evidence over Licensee’s objection, the
burden shifted at that time to Licensee to establish that he either was not capable of
making a knowing and conscious refusal or was physically unable to take the test.
See Giannopoulos, 82 A.3d at 1094. At a minimum, Licensee was on notice from
the admission of the DL-26A Form at the hearing that he might be bound by his
failure to offer a defense. Otherwise stated, after DOT put forth evidence
establishing the elements required to suspend Licensee’s operating privilege based
on an Implied Consent refusal, Licensee was then obligated to put on his defense if
17
he chose to do so. He did not. Licensee put forth no evidence to illustrate either that
he had been incapable of making a knowing and conscious refusal or had been
physically unable to take the test. Instead, Licensee apparently relied on the
argument that, without the DL-26A Form, DOT could not establish that police
requested Licensee submit to chemical testing, that the police warned him that a
refusal would result in a license suspension, and/or that he ultimately refused. To
allow Licensee to reverse his litigation strategy and put forth at a new hearing
evidence that he chose to forego presenting at the previous hearing when he had the
opportunity to do so would effectively provide Licensee with another bite at the
evidentiary apple. This we will not do. In hindsight, while Licensee’s choice not to
put forth evidence after DOT shifted its evidentiary burden may have been a rational
litigation strategy based on an argument that the DL-26A Form should have been
excluded from evidence, it was also a fatal one.
IV. Conclusion
For the foregoing reasons, we reverse the Trial Court Order and direct
DOT to reinstate the Suspension.
___________________________________
CHRISTINE FIZZANO CANNON, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marcus T. Pettit :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, : No. 661 C.D. 2023
Appellant :
ORDER
AND NOW, this 8th day of May, 2024, the May 24, 2023 order of the Court
of Common Pleas of Berks County is REVERSED, and the Department of
Transportation, Bureau of Driver Licensing, is hereby directed to REINSTATE the
12-month suspension of Marcus T. Pettit’s operating privilege.
___________________________________
CHRISTINE FIZZANO CANNON, Judge