McKenna v. Commonwealth
2013 Pa. Commw. LEXIS 277
| Pa. Commw. Ct. | 2013Background
- DOT appeals Bucks County trial court order sustaining McKenna's 18-month suspension under 75 Pa.C.S. §1547(b).
- August 18, 2011, McKenna was arrested for DUI after a two-vehicle accident with a strong odor of alcohol and glassy eyes.
- At Doylestown Hospital, the officer read the DL-26 Form and advised that refusal could lead to an 18-month suspension and seeking an attorney was not permitted before testing.
- Licensee asked questions about his rights and penalties; he did not immediately assent to testing and eight minutes later the officer deemed him to have refused.
- The trial court held Licensee's conduct did not constitute a refusal and DOT failed to prove the required elements for an 18-month suspension.
- The Commonwealth appeals, arguing the trial court erred as a matter of law in finding no refusal; this Court reverses and reinstates the 18-month suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Licensee’s hospital conduct was an unequivocal refusal. | DOT contends Licensee’s actions amounted to refusal. | McKenna argues confusion and questions show uncertain assent, not a clear refusal. | Yes; Licensee’s conduct constituted a refusal. |
| Whether a later assent can vitiate an initial refusal after testing was refused. | DOT asserts that initial refusal stands despite later assent. | McKenna asserts later assent should vitiate the initial refusal. | No; later assent does not vitiate the initial refusal; suspension upheld. |
Key Cases Cited
- McDonald v. Department of Transportation, Bureau of Driver Licensing, 708 A.2d 154 (Pa.Cmwlth.1998) (distinguishes confusion vs. unequivocal assent in refusals)
- Renwick v. Department of Transportation, 543 Pa. 122 (1996) (anything less than unequivocal assent constitutes a refusal)
- Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636 (Pa.Cmwlth.2006) (officer must convey certainty of suspension; no duty to ensure comprehension)
- Wroblewski v. Department of Transportation, Bureau of Traffic Safety, 65 Pa.Cmwlth. 333 (1982) (time is of the essence; waiting for attorney normally not required)
- Tomczak v. Department of Transportation, 132 Pa.Cmwlth. 38 (1990) (initial refusal not vitiated by later assent; timing matters)