Grogg v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
79 A.3d 715
Pa. Commw. Ct.2013Background
- At ~1:34 a.m. police responded to a hit-and-run; officer encountered Grogg in her car and suspected intoxication based on witness tip and observations (red, glassy eyes; chewing mints; unresponsive).
- Grogg admitted drinking one drink; officer conducted field sobriety tests, observed indicators of intoxication, arrested her for DUI, and transported her to the county prison for chemical testing.
- Officer Funk read the DL-26 chemical test warnings, offered Grogg the form to read, and gave her a five-minute bathroom break; upon return he re-read the warnings and asked her to submit to testing five times over ~two minutes without a verbal response.
- Officer Funk treated Grogg’s continued silence/lack of assent as a refusal and reported the refusal; DOT suspended Grogg’s license for one year under 75 Pa.C.S. §1547(b)(1)(i).
- Grogg appealed; the trial court held a de novo hearing, found she was given a meaningful opportunity to submit to testing, and dismissed her appeal; Grogg appealed to this Court.
Issues
| Issue | Plaintiff's Argument (Grogg) | Defendant's Argument (DOT) | Held |
|---|---|---|---|
| Whether Grogg’s silence/lack of verbal assent after warnings constituted a refusal to submit to chemical testing | Grogg was emotional, given only ~2 minutes after returning from bathroom, and did not deliberately refuse; reliance on Bomba to argue an unsuccessful or delayed assent is not a refusal | Officer repeatedly read warnings, offered reading opportunity, made five requests over ~9 minutes total from first warning; silence/inaction after repeated requests is an unqualified refusal | Court held silence constituted a refusal; DOT met its burden that Grogg had a meaningful opportunity to submit |
| Whether arrestees within the statutory two‑hour window must be given additional time to consent (per se rule urged by Grogg) | Insists Bomba supports more time when within two‑hour evidentiary window to secure blood/breath evidence | DOT: no per se extra time required; only a "meaningful opportunity" is necessary; officers need not cajole or wait indefinitely | Court declined to adopt any per se extra‑time rule; declined to extend Bomba beyond its facts; reaffirmed meaningful‑opportunity standard |
Key Cases Cited
- Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636 (Pa.Cmwlth.2006) (elements required to sustain a §1547 suspension)
- Renwick v. Department of Transportation, 669 A.2d 934 (Pa. 1996) (silence or anything less than unequivocal assent can constitute refusal)
- Bomba v. Department of Transportation, Bureau of Driver Licensing, 28 A.3d 946 (Pa.Cmwlth.2011) (distinguishes good‑faith unsuccessful attempt to provide sample from deliberate refusal)
- Petrocsko v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 714 (Pa.Cmwlth.2000) (DOT must show licensee was afforded a meaningful opportunity to submit)
- Department of Transportation, Bureau of Traffic Safety v. Ferrara, 493 A.2d 154 (Pa.Cmwlth.1985) (officers are not required to cajole an arrestee or wait indefinitely for assent)