*1 Karen L. MALETIC Pennsylvania,
COMMONWEALTH of
DEPARTMENT OF TRANSPORTA
TION, BUREAU OF DRIVER LI
CENSING, Appellant. Court Pennsylvania.
Commonwealth on
Submitted Briefs Feb. 2003.
Decided March 2003. *2 BY Judge
OPINION COHN. Department Bu- reau of Driver (Department) ap- peals from the order of the Court Com- Allegheny County, mon Pleas of which the appeal sustained of Karen L. Malefic (Licensee) from her.op- erator’s license. We reverse. 18, 2000, On December operating privi- notified Licensee that her leges being suspended year were for one pursuant to Section 1547 Vehicle Code, § refusing 75 Pa.C.S. for submit to a chemical test on November timely appeal 2000. She filed a and the matter was heard de novo before the trial Testifying court. for the Officer Michael Baird. Licensee testified on her own behalf. The trial court made following pertinent findings. 22, 2000, On November Officer Baird dispatched single- the site of a accident, vehicle where he observed Licen- vehicle on its side with her trapped see’s help, the officer offered Li- inside. When responded right censee that she was all that he should not call An police. and emergency medical service team extracted transported Licensee from the vehicle and hospital. her to the Prior to Licensee’s hospital, Officer questioned Baird her about the accident. stated that she did not know how the She occurred, did admit to accident but she to the event. The officer drinking prior Timothy Terrance M. P. Edwards Licen- strong detected a odor of alcohol on Wile, In-Charge, Asst. Counsel Harris- breath, noted that slurred her see’s she burg, appellant. words, there was a case of beer Licen- lump and that Licensee had a see’s vehicle appearance ap- No entered on behalf of on her head. pellee. one-half hour spent
After Officer Baird
COLINS,
Judge,
BEFORE:
President
investigating, he
the accident scene
PELLEGRINI,
FRIEDMAN,
Judge,
where he found Licen-
went
LEADBETTER,
COHN,
Judge,
Judge,
emergency
gurney.
on a
see
room
SIMPSON,
LEAVITT,
Judge,
Judge,
personnel
treating
Medical
her when
arrived,
they were
and he noticed that
Judge.
her,
injured,
medical
he would have arrested
extracting
pur-
blood from her for
been
her,
but stated that he did not arrest her.
poses. The officer told
while she was
lying
gurney,
on the
that she was under
Licensee testified that she did not recall
driving while under the
investigation for
reading anything
the officer
to her. She
*3
DL-
influence. He then read to her Form
possible
further testified that it was
that
warnings
which sets forth the
in accor-
her,
the officer did read the form to
but
Transportation,
dance with
there was too much
on in the emer-
O’Connell,
Safety
Bureau
v.
of Traffic
gency room for her to recall. She stated
(1989).
Pa.
Form DL-
The trial
found the
need to present
case
medical evidence that she
Transporta
of Welcome v.
incapable
of making
knowing
tion,
Licensing,
Bureau Driver
167 Pa. conscious refusal. Licensee has the bur
*5
of
245,
(1994),
Cmwlth.
fact,
court
this
must determine whether
BY Judge
DISSENTING OPINION
supports
substantial
the trial
FRIEDMAN.
court’s
that
not un-
Claimant was
critical
der arrest at the
time.2 On the
Alleghe-
Pleas of
Court of Common
court)
(trial
arrest,
ny County
Karen L.
issue of
Officer Michael Baird testi-
sustained
Transportation,
position
suspension
Department
1. The
of
that her license
could not
Department
to
be sustained because the
failed
Licensing (Department) suspended
of Driver
both the first and the third elements
establish
operating privileges
year
Licensee’s
for one
However,
of its burden.
I limit this dissent to
Code,
pursuant to section 1547 of the Vehicle
my
Department
to
belief that the
failed
estab-
refusing
§
Pa.C.S.
to
to a
for
submit
elements,
is,
that
that
lish the first of these
majority correctly
chemical
test. As the
prior
under arrest
to her refusal
states,
oper-
to establish that a
of
to submit
a
test.
to blood
ating privileges
proper,
Department
was
prove
statutory appeal hearing
must
at a
that
scope
2. This court’s
of review is limited to
(1)
driving
the licensee was arrested for
while
determining whether the trial court commit-
police
under the influence
a
officer who
discretion,
ted an
law or an abuse of
error of
grounds
had reasonable
to believe
findings of fact
or whether the trial court's
operating
licensee was
a
vehicle while
supported by
Com-
are
substantial evidence.
the influence of alcohol or a
sub-
controlled
Danforth, 530 Pa.
monwealth v.
stance, (2) was asked to submit to a chemical
(1992). Additionally,
we must review
so,
test, (3)
(4)
refused to do
was warned
light
the evidence in the
most favorable
a
refusal would result in
license sus-
prevailed
party that
before the trial court.
pension.
Department Transporta-
Banner v.
Department Transportation, Bureau Driv-
tion,
Malizio,
Licensing,
Bureau Driver
558 Pa.
er
(1999).
(1992).
Licensee takes the
Q. any you At time had a after chance undergone after she had whatever
to talk with at the acci- [Claimant medical treatment was advised at dent and she scene] admitted that point go? she was not free to drinks, she you had had some No, A. I didn’t. She was unable to noticed—indicated on direct exami- the hospital point leave at that but nation that had speech, she slurred my she was not under control. you point did at that before she was Q. my question. This would be next transported hospital] ever [the stayed You didn’t—if she had there her that advise she was under ar- it wasn’t anything because of suspicion rest for of DUI? you imposed had upon her? No, A. I did not. A. That is correct. (N.T. 15-16.) at (N.T. 18-20.) at Q. What was you the first conversation Q. Officer, your it’s testimony you had with at the ER? [Claimant] did read the chemical test warnings A. At ER I initially asked her how off Exhibit No. 1 she was and she stated that she was [Form DL-26] [Claimant] at the doing okay. At that I point advised hospital, right? her that I investigating the ac- Yes, A. I did. cident, and I advised her that she Q. you And including specifical- read' — being investigated for driving ly, you warning No. 1 to influence, under the at which point hospital, [Claimant] correct? read her Warnings. her O’Connell Q. You didn’t tell her she was under Q. And it warning isn’t true No. 1 on
arrest point, DUI at that did testing warning chemicals form you? is: you Please be advised are now No, A. she was not. under arrest for Q. You didn’t charged tell her she was influence of alcohol pursuant *7 with anything point, you? at that did 3731 of [Section] the Vehicle Code? No, A. I did not. A. That’s correct. Q. you Did give any ever her Miranda Q. you So had advised she [Claimant] Warnings, either at the scene was under arrest accident or in emergency room? the influence of alcohol? No, not, A. I did sir. A. That’s correct. I physically didn’t Q. you After engaged your had her in arrest her but she was read the. dialogue, initial it when was warnings, which included No. 1. you first asked her to submit ato Q. And she was advised that she was draw, fact, you, blood or in did ask being arrested for DUI? her to submit to a sepa- blood draw A. correct. rate from the That’s blood draw that was made for purposes? medical THE I thought you COURT: said earli- No, A. I did point you not. At the I start- only investigating. er you Did talking
ed
they
actually
your
with
in
[Claimant]
form
mind an intent to
time,
you ing anything
at the time
to her. She further testified
at that
charge her
her,
possible
that it was
that Officer Baird did
you
or were
still investi-
this to
read
her,
the form to
read
but there was too
gating?
in
emergency
much
on
room for
Well,
Honor, it
Your
THE WITNESS:
her to recall. She stated that she was
intoxicated
she was
my
conclusion
(See
never told that she was under arrest.
unable to drive.
level she was
33, 35-39.)
at
N.T.
ar-
she wasn’t under
THE COURT: So
rest—
In
trial
considering
testimony, the
only
suggest-
Not—
court noted that the
THE WITNESS:
that an
had occurred came from
ing
arrest
though you read
THE COURT:—even
reading
Officer Baird’s
of the Form DL-26
her?
this form to
Claimant,3
which the
ar-
That’s correct. Not
THE WITNESS:
gued constituted
an arrest.
Officer
physically.
testimony,
Baird’s
indicated that
Well,
say
fair to
THE
is it
COURT:
prior
he made no arrest
to Licensee’s re-
into
physically
didn’t
take her
you
fusal
submit to the blood
couldn’t; she was
custody
you
because
a
never made mention of
future arrest and
in
gurney
hospital?
in a
in
way
that Licensee was
no
confined or
THE
That’s correct.
WITNESS:
himby
restrained
so that she could not
being
THE COURT: And she
go
come or
at her leisure. The trial court
in
injuries sustained
physical
treated for
a
in a
determined that
statement
an accident?
form
Officer Baird did not vitiate the
correct, Your
THE WITNESS: That’s
testimony establishing
balance of his
Honor.
did
occur. The trial court
an arrest
not
physi-
THE
Had she not been
COURT:
therefore found as a fact that Licensee was
just
in
cally injured
sitting
and she was
prior
not under arrest
to her refusal to
appeared
physical
chair and
to have no
submit to a blood test.
intent,
then
injuries,
your
being
was it
in
As the fact finder
a license
2000, if
she
on the 22nd of November
may accept
reject
the trial court
appeal,
ambulatory,
had
been
to have
otherwise
subject
any testimony
part,
whole or
charged
her?
taken her into
of discre-
only to review under the abuse
correct,
THE
That’s
Your
WITNESS:
tion standard. DiCola
Honor,
placed
her under
would have
Licens-
Transportation, Bureau
and handcuffed her and trans-
arrest
(Pa.Cmwlth.1997).
ing,
Here, Baird, gave custody including Officer Baird Licensee conflict- of Officer his own First, directly told her ing messages. testimony that trial she was not. The investigation for finder, that she was under driv- court is fact the ing while under the influence. He then which it in a upon relied must be viewed verbatim her Form DL-26 light more favorable to Licensee as the person being advises the read to that he or who party prevailed Department below. driving she is “now under arrest for Transportation, Bureau Driver Li- the influence of alcohol or a controlled Malizio, censing v. 152 Pa.Cmwlth. pursuant substance to Section 3731 of the (1992). im- A.2d The is Vehicle Officer Baird or did Code.” said permissibly asking us to view the evidence nothing give else that would Licensee the inmore its favor. impression that she was under arrest or Department empha- I also note that the custody under Officer Baird’s or control. testimony sized Officer Baird’s later When Licensee refused to to the submit “physically” he would have arrested Claim- simply blood Officer Baird left the indisposed ant had she not been with medi- Moreover, hospital. testimony that is cal treatment. Officer Baird’s intentions contradictory, somewhat Baird es- Officer not, however, and suppositions particu- are sentially point admitted at one that he had larly inquiry relevant of whether Claimant, not arrested that she was not in Licensee would have inferred under the control, custody his and that there were totality of the circumstances she movements,
no restrictions on her except custody under his and control. Nor is it for those connected with her medical con- appeared relevant that Officer Baird dition. draw a distinction in his mind between
I note also that the trial court found “physical” arrest and some other unde- significant the fact that Officer Baird did species fined of arrest. Had Baird Officer not know whether Licensee understood Licensee, truly desired to arrest he could what he had read to her. Under the total- directly have done so and without contra- circumstances, where, most, ity of the at evidence, however, diction. sup- does information, given conflicting port a different finding, which agree cannot that the trial court abused purview within the trial court’s to make. by finding its discretion that Licensee was I further observe that this case is distin- not or control of Officer guishable from upon by those cases relied Baird when she refused to consent to the Department. conclude, blood test. I cannot as the De- Safety do, partment would have us that Officer of Traffic Uebelacker, reading pre-printed Baird’s of a form con- (1986), police directly officer told immediately preceding tradicts his state- licensee that “he was ment that simply she was under “investi- to be arrested” for under the gation.” To make this conclusion would influence and that officer would like for usurp prerogative the trial court’s fact as him to submit to a blood test. The issue in finder, place greater for we would then case, however, was whether the offi- weight upon reading Officer Baird’s of an phrase “going cer’s use of the to be arrest- anonymous place weight form and lesser *9 upon all ed” was sufficient for other evidence that indicated that the licensee to infer Licensee was not under the control or that he was under control custody the or of
649 not, here, contrast, By The issue was as in v. Department the officer.4 Welcome Transportation, trial court abused its discre- Bureau whether the Driver Li- of credibility weight censing, and determi- 167 tion in its Pa.Cmwlth. (1994), informa- regarding conflicting
nations the we determined that a being licensee by police hospital tion to a licensee treated at a provided following an accident was not under arrest when investigat- officer. the ing officer informed the licensee that he Transporta- in Similarly, silent, right had the to remain “informed tion, Shine, Bureau of implied law,”, of the [him] consent and (1988), 114 A.2d 42 Pa.Cmwlth. requested he that submit to a blood test. directly in the officer informed the licensee Id. at 973. Our decision does not indicate going that he was arrest- hospital the be whether the officer’s explanation of the charges, including driving ed for several “implied consent law” para- included the under the influence. those circum- Under graph by Officer Baird in the present stances, we determined that the evidence stating case that the licensee was “now totality showed that the of the circum- under arrest for driving under the influ- was for the licensee to stances sufficient Welcome, ence.” found in significant We that was under the control or infer he fact the the officer never custody of the officer. restricted the licensee’s at freedom the Driver Licens- hospital or indicated that he could not Jones, ing v. placed leave or would be under arrest for (1988), denied, appeal 522 Pa. Also, driving. drunk the fact the (1989), A.2d 40 we determined that an hospital licensee would not leave the be- police arrest had occurred when the officer children, cause his concern for his who gave hospital in the the licensee Miranda in being were also the accident and treat- rights, explanation with the ed, had no bearing on the fact that he going placed to be under arrest for drunk could have hospital the had he chosen left driving. Again, pres- these cases did not to do so. also found significant We ent an the fact finder issue where fact that when the licensee refused to con- presented conflicting with evidence from sent to a chemical the officer simply himself, police officer or where the “formally” left the without arrest- police officer one breath indicated that Here, ing charging the licensee. investigation licensee was and upon trial court relied in arriving Welcome other, purely having from read a pre- decision, its cannot conclude that form, printed indicated that the licensee by doing. the trial court erred so upon was under arrest. The cases relied Department simply Accordingly, accept involved wheth- I would trial police impend- er the officer’s indication of not un- court’s delivery der at the asked ing arrest and the of O’Connell arrest time she was test, and, warnings placed the licensee under the refused to submit to a blood reason, impression that I would affirm the trial court’s he was arrest. officer, totality police 4. We held in Uebelackerthat the of the and control of the circumstances established that the licensee phrase where the “was to be arrested” would have inferred that he was under the *10 sustaining appeal.5 order Licensee’s See
id.; Jones. immediacy concerning a sufficient character of about second issue whether Licensee had it. knowing made a and conscious refusal to the test. See Welcome. submit issue, my disposition
5. Because of of this Department's would not need to address the