Nardone v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
130 A.3d 738
Pa.2015Background
- Police arrested Nardone for DUI, read DL-26 implied-consent warnings, and requested a blood test at a hospital.
- Nardone objected to blood draw (cited prior arm injury/coagulation) and offered breath and/or urine tests instead.
- Officers treated his offer as a refusal, had him sign the DL-26 noting he offered breath/urine, and DOT suspended his license for one year under 75 Pa.C.S. § 1547(b)(1).
- Trial court (de novo) sustained Nardone’s appeal, relying on Superior Court precedent (Barker) that §1547(i) allows alternative testing when reasonably practicable.
- Commonwealth Court reversed, following precedent that officers choose the test and an offer of an alternative constitutes refusal unless medically incapable.
- Pennsylvania Supreme Court granted review to resolve whether §1547(i) creates a statutory right to alternative testing and whether offering an alternative, without more, is a refusal under §1547(b)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether §1547(i) gives a motorist a statutory right to request alternative chemical testing when arrested for DUI | Nardone: §1547(i) plainly lets a motorist demand breath, blood, or urine and that request should satisfy the police request (i.e., be an alternative) | DOT: §1547(i) serves criminal-defense/autonomy purposes (additional test or absent official request) and does not let motorists substitute an officer’s chosen test to avoid suspension | Held: No. §1547(i) does not create a right to substitute the officer’s requested test; police may select the initial test under implied consent in §1547(a)–(b) |
| 2. If §1547(i) allows alternative testing, must the motorist show a medical condition preventing the officer’s requested test? | Nardone: No condition should be required; only if motorist claims inability to undergo any testing should medical proof be needed | DOT: Alternative-testing claims should be limited (and medical inability would be relevant); but main argument was §1547(i) doesn’t allow substitution at all | Held: Decision on medical-condition prerequisite not reached because §1547(i) does not confer a substitution right; court declined sua sponte broader ruling |
| 3. Does a motorist’s request for an alternative test, by itself, constitute a refusal under §1547(b)(1)? | Nardone: Offering an alternative is not a refusal; he never refused to submit to chemical testing generally | DOT: Anything less than unqualified assent to the officer’s requested test is a refusal; offer of alternative can be treated as refusal | Held: Yes. Where motorist refuses to assent to the officer’s requested test (here, blood) and declines to submit after being advised, that conduct — including persisting in offering alternatives and never agreeing to the officer’s request — constitutes a refusal under §1547(b)(1) |
Key Cases Cited
- Commonwealth v. Barker, 70 A.3d 849 (Pa. Super. 2013) (Superior Court en banc: recognized a motorist’s right to alternative testing under §1547(i) in certain circumstances)
- Tarka v. Commonwealth, Dep’t of Transp., 756 A.2d 138 (Pa. Cmwlth. 2000) (intermediate court precedent holding police choose the type of chemical test)
- McKenna v. Commonwealth, Dep’t of Transp., 72 A.3d 294 (Pa. Cmwlth. 2013) (motorist’s offer of alternative test does not negate refusal under §1547)
- Lemon v. Commonwealth, Dep’t of Transp., 763 A.2d 534 (Pa. Cmwlth. 2000) (medical incapacity can avoid suspension if supported by competent evidence)
- Renwick v. Commonwealth, Dep’t of Transp., 669 A.2d 934 (Pa. 1996) (anything less than unqualified, unequivocal assent to testing constitutes refusal)
- Todd v. Commonwealth, Dep’t of Transp., 723 A.2d 655 (Pa. 1999) (reasonable and sufficient opportunity to submit to testing; failure after multiple chances can be refusal)
- Occhibone v. Commonwealth, Dep’t of Transp., 669 A.2d 326 (Pa. 1995) (statutory construction should facilitate enforcement of the Implied Consent Law)