*1 Accordingly, the order of the trial court
denying the Authority’s preliminary objec-
tions to R Holding’s & J Petition For
Appointment of Board of Viewers and or-
dering parties application to make an appointment
for the of a Board of Viewers
is reversed.5
ORDER NOW,
AND October the order
of the trial court denying Authority’s
preliminary objections to R & Holding’s J
Petition For Appointment of Board of ordering
Viewers and parties to make application appointment for the of a
Board of Viewers hereby REVERSED. addition,
In that part of the trial court’s R denying & Holding’s prelimi- J
nary objections Authority’s prelimi-
nary objections is hereby AFFIRMED. R.
Thomas ALEXANDER
v. Pennsylvania,
COMMONWEALTH of
DEPARTMENT OF TRANSPORTA-
TION, BUREAU OF DRIVER LI-
CENSING, Appellant.
Thomas Appellant R. Pennsylvania,
Commonwealth of Transportation, Licensing.
Bureau of Driver
Commonwealth Pennsylvania. Court of
Submitted on Aug. Briefs 2005.
Decided Oct. conclusion, Having reached this guments. we do not Authority’s need to remaining address the ar- *2 Patterson, Lancaster, at time of the ar- 17-year-old minor the Christopher M. R. designated appellant, Trooper for Thomas Alex- the PennDOT DL-26 rest. read ander. he form to Alexander and determined that contents of the form. Alex- understood the Wile, Timothy P. In- Asst. Counsel and refused ander refused the blood test Cramer, and Harold H. Asst. Charge Chief that the testified sign Trooper form.2 Counsel, Harrisburg, for Bureau appellee, the Alexander was not advised of ramifica- Licensing. of Driver a a refusal would have on him as tions COLINS, Judge, BEFORE: President juvenile of language other than the literal LEADBETTER, Judge, and and DL-26. Form KELLEY, Judge. Senior Pennsyl- trial that The court concluded Judge BY OPINION President juve- vania law and statutes indicate that COLINS. exempted require- not niles are from to a chemical test. ments submit by the appeal This is an Commonwealth However, the trial court found that sim- Pennsylvania, Transpor- of of ply reading sus- Form DL-26 (Bu- tation, Licensing Bureau of Driver pected of a not sufficient DUI violation is reau), cross-appeal by and a Thomas R. the possible to inform them of criminal (Alexander),1 an of Alexander from order of penalties associated with their refusal of Common Pleas of Lancaster Court considering that Form testing, chemical County, ap- which sustained Alexander’s DL-26 lists the minimum criminal merely peal one-year suspension from of his and operating privilege imposed penalties a first time offender was 1547(b)(l)(i). conformity with 75 Pa.C.S. for re- does state entirely are in the case of fusal different case pertinent facts follow. set forth be- For reasons 14, May Trooper Kelly Osborne- On low, of the trial we reverse order (Trooper) Pennsylvania Filson State Al- and reinstate pulled suspicion Alexander over on Police driving privileges.3 exander’s driving the influence. while detected a Trooper testified she raises in his Alexander two issues odor of alcohol on Alexander. strong Initially he that he was mis brief. states requested perform a Trooper informed about associated sobriety performed field test. Alexander refusing and to take chemical test insufficiently, Trooper these tests and knowing he not make a and thus could and placed Alexander under arrest trans- decision whether submit conscious ported Hospital him to Lancaster General was chemical test. Alexander read working for a test because no breath blood 75 Pa.C.S. a DL-26 form in accordance with test could be located. Alexander was scope to whether appealed the court’s 3. Our of review is limited 1. The Bureau trial order cross-appeal. findings This supported and Alexander filed fact are the trial court's appeals by dat- Court consolidated both competent whether trial evidence and January desig- ed 2005. Alexander of law an abuse court committed error appeal by Appellant nated in the consolidated Touring Department Trans discretion. April dated this Court’s order portation, Licensing, 712 Bureau Driver (Pa.Cmwlth.1998). A.2d 349 apparently the chemical 2. Alexander refused he a fear needles. test because had § 1547. Alexander was read that if he was that if aware he refused to submit to the convicted, pled guilty, or was test, he be in violation of delinquent with respect violating refused, the law. He still and thus it must 3802(a)(1), he would be to penal- be deemed a denial to to a request submit *3 ties that include a minimum in of 72 hours for a chemical test. jail $1,000.00. and a minimum fíne of Al- argues exander juvenile, that as a these Second, argues Alexander that he not apply did to him and that he capacity did have the to consent to the adequately was not in informed order to chemical juvenile test because of his sta make a knowing and conscious choice.4 § tus. Alexander relies on 35 P.S 101015 However, in v. Department Weaver of which states: Transportation, Bureau Driver Licens- [A]ny eighteen years minor who is ing, (Pa.Cmwlth.2005), 1 873 A.2d this older, age graduated or has high from rejected Court argument that the DL- school, married, or has or has been 26 form does not statutory meet the notifi- pregnant, may give effective consent to cation requirements § of 75 Pa.C.S. 1547 medical, dental and health services for because it does not inform a licensee of the herself, himself or and the consent of no minimum enhanced for second person other necessary. shall be and third offenders. The Court stated: It is not duty police explain to However, this Court finds the Bureau’s the various sanctions available under a argument compelling more and concludes given law to an give arrestee to along any with mi- other individual an opportunity to decide nor, subject is to a chemical 75 test. Pa. whether it is worth it to violate the law. § (relating rights C.S 6303 and liabili- It is sufficient for inform minors) ties of applicable is in the current motorist he or she will be viola- case. It principle is well-settled of law in tion of the law and will penalized be driving this Commonwealth that privi- is a that violation if he or she should fail to lege, not a right. fundamental If Alexan- accede to request the officer’s for a going put der is himself in place chemical test. verbiage on form an adult behind the wheel of automo- DL-26 informs a motorist that he or she bile, he must follow the Vehicle Code and will be in violation of the law and will be all provisions. of its To allow Alexander penalized for that violation if he or she immunity testing from chemical should fail to accede to the officer’s re- a domino effect on all have DUI cases quest test; for a chemical that is suffi- juveniles. juvenile regarding A who re- cient upon information which to base a fuses a chemical test is decision as to whether or not to submit just suspension anyone license else in to a testing. this Commonwealth. Weaver, 2 873 A.2d at Accordingly,
This Court finds that trial princi- order of the ples apply reversed, and the of Alexan- 177-2004, 29, 2004, 3802(a)” violating § Act effective November from the chemical test 1547(b)(2) warning. § 75 amended Pa.C.S. remov- ing adjudication delinquen- the words "or cy.” subsequently promulgated The Bureau February 5. Act of P.L. Medical, new DL-26 form pertains which removed the words to Minors' Consent to Den- , delinquent "or respect tal and Health Services minor as “a age or older” and a driving privileges’ is to be reinstated.
der’s years of cross-appeal quashed age.” e.g., must be under 21 See Alexander’s Code, Pa. prevailing party below. 1547 the Vehicle C.S. since he was Code, However, therein are 1547; the issues raised the Vehicle Section 3801 of the Bureau’s in our discussion of subsumed Pa.C.S.
appeal. addition, protect In Assembly rights juveniles, General ORDER e Act, 42 th Pa.C.S. enacted NOW, day AND this 26th October primary pur §§ One of the 6301-6365. *4 of of Common the order the Court “[cjonsistent is, Act poses of the Juvenile County, Pleas of Lancaster Civil Division interest, public the protection with the of reversed, op- of is and the the committing for delin provide to children of is erating privileges to be care quent programs supervision, acts of cross-appeal Alexander’s is reinstated. provide and balanced rehabilitation quashed. protection of the communi attention ty, accountability for of imposition the of KELLEY, Judge, dissented and Senior development committed and the fenses opinion. filed to children to become competencies enable BY Senior DISSENTING OPINION productive and of the responsible members Judge KELLEY. community.” 6301 of the Juvenile Section I that I dissent. believe respectfully 6301(b)(2). Act, § In order to 42 Pa.C.S. minor, a to as was able the Act purpose, effectuate this Juvenile knowing make a and conscious decision commitment, detention, or prohibits the testing to the chemical whether to submit child for imprisonment any sentence about the because he was misinformed 6303 summary a See Sections offense.1 a refusal. penalties associated with While Act, and 42 Pa.C.S. 6327 that has undisputed spoken it is this Court 6303; § 6303 of the Vehi 6327. Section in to this Weaver v. issue by recognizes prohibition cle this Code Driver Transportation, Bureau Licens- be sen providing person that shall “[n]o (Pa.Cmwlth.2005), ing, A.2d 1 873 Weaver a a term for imprisonment tenced to That, believe, I is did not involve a minor. any provisions of title con violation of this key the distinction. summary a offense committed stituting 18 age under the person the was while It is that the laws of this Common- clear 6303(b). Thus, while years.” 75 Pa.C.S. juveniles differently than wealth treat and operator’s the license Code, possession an the 75 Pa. including adults Vehicle is considered operating a motor vehicle §§ Code con- C.S. 101-9805. The Vehicle Commonwealth, the Vehi privilege in this makes a between sistently distinction unique of a recognizes cle the status the Code minor sets forth defini- adult and a and privilege. years granted 21 is as of minor who person tion an adult “a treatment, requests of instruction or the Juvenile Act course I note that Section 6302 of (1) jurisdiction who: is until the defines a child an individual to retain (2) age years; is under the of 18 completed, event been but in no course has delinquen- age of an act of 21 who committed a course a child remain in of instruction shall (3) reaching age years; cy of 18 before past age years. 42 of 21 or treatment reaching dependent before § 6302. Pa.C.S. who, age engaged in years and while of 18 More importantly, protections while Section those involve a criminal or a 1547(b)(2) of provides the Vehicle Code2 for offense. It penalty summary civil is that a police duty officer has a to inform a protections well settled that one of those testing who refuses chemical ability knowing and con- make his or her operating privilege will be sus- testing. for As scious refusal pended that, upon upon refusal and convic- our Supreme stated Court Common- 3802(a)(1) plea violating tion or Section O’Connell, wealth v. 521 Pa. Code,3
of the Vehicle he or she will be (1989), always A.2d law has “[t]he provided in Section required tell the arrestee 3804(c) Code,4 of the Vehicle consequences of a refusal take the 3804(k)5 provides that set can knowing test so that he make a and 3804(c) forth in Section do not apply choice.” conscious Therefore, I reject majority’s minors. Accordingly, I would affirm the trial holding that principles forth set court’s order. Weaver apply *5 may It all be sufficient conclude that satisfy
that is necessary order to 1547(b)(2)
requirements of the
Vehicle Code in the case of an is for adult to inform motorist he or
she will be in violation of the and will law penalized
be for that violation if he she FROG, should fail to accede to SWITCH & MANUFAC- the officer’s re- quest COMPANY, for a chemical TURING Petitioner test. But on based foregoing discussion, it is not sufficient to make the same conclusion in ease of otherwise, minor. To hold erodes PENNSYLVANIA HUMAN protections COMMISSION, afforded minor both RELATIONS Act, previ- as I Respondent. stated ously herein, recognized by have been Pennsylvania. Commonwealth Court of General Assembly provisions various simply Vehicle Code. The Bureau Argued Sept. promulgating a new DL-26 form comply Decided Oct. provisions of the Vehicle as Code applies minors is all it take to rights ensure that the of minors being protected
are in this Commonwealth Assembly. intended General
Finally, I do believe that the fact granted
that a li- operator’s minor is
cense reaching majority before vitiates
protections afforded minor whether 1547(b)(2). 3804(c).
2. 75 Pa.C.S. 4. 75 Pa.C.S. 3802(a)(1). 3804(k).
3. 75 Pa.C.S. 5. 75 Pa.C.S.