Colgan v. Commonwealth

561 A.2d 1341, 127 Pa. Commw. 479, 1989 Pa. Commw. LEXIS 563

Opinions

CRAIG, Judge.

This Vehicle Code appeal by P.A. Colgan, a driver licensee, is from an order of Judge George T. Kelton of the Court of Common Pleas of Bucks County sustaining a one-year suspension of the driver’s license by the Pennsylvania Department of Transportation (DOT) under 75 Pa.C.S. § 1547(b) for refusing to submit to chemical testing for alcohol. We affirm.

The precise issue is whether a driver’s insistence upon a testing procedure which results in an undersized blood sample, in the face of the definition of an adequate sample being communicated to him, constitutes a refusal of chemical test warranting a suspension under the Vehicle Code provisions.

The undisputed facts are that a police officer of Falls Township, with grounds to believe that the driver was under the influence of alcohol, arrested him and asked him to submit to a breathalyzer test, with the requisite warnings as to the consequences of refusal. Acceding to the driver’s preference for a blood test rather than a breath test, the police officer conducted the driver to a hospital for a blood test. When the doctor began to prepare the driver’s forearm for the withdrawal of a blood sample, the driver declined to permit a sample to be taken from that portion of his anatomy.

Concerning two further facts, the record shows conflicting testimony. The officer testified that the driver insisted that blood be taken only from his little toe on the left foot. The driver contends that he sought to restrict withdrawal only to his foot in general. The trial judge, empowered to act as factfinder, specifically found that the driver “demanded that the blood be drawn from his left little toe area. (Officer Jones, N.T. 9, 15 and licensee N.T. 19).”

The trial judge’s concluding finding was that:

The spattering of blood obtained turned out to be an insufficient sample for the two tubes which defendant was told were required. (Emphasis added).

With respect to the emphasized portion of the foregoing finding, the police officer testified that he had advised the driver “that we had to take two tubes of blood which the blood alcohol kit calls for.” The driver denied being so informed. Again, the trial judge’s finding is determinative in resolving that conflict.

The controlling principle in this case is that anything less than an unqualified, unequivocal assent to chemical testing constitutes a refusal. Department of Transportation v. Mumma, 79 Pa.Commonwealth Ct. 108, 468 A.2d 891 (1983). The trial judge relied on that principle, correctly adding that a refusal to submit to a chemical test need not be expressed in words, but can be implied from a driver’s actions. Mumma, 79 Pa.Commonwealth Ct. at 111, 468 A.2d at 892.

On these facts, this court cannot gainsay the trial judge’s conclusion that:

After a review of the record, we again conclude licensee’s demand that blood be drawn only from his little toe was a limitation that constituted a refusal.

Because the facts here establish that the driver refused the testing procedure which the police officer had described to him as necessary, this court agrees that his limitations upon the testing procedure did constitute a refusal. Judge Kelton’s sound decision is affirmed.

ORDER

NOW, August 10, 1989, the order of the Court of Common Pleas of Bucks County dated February 6, 1989, at No. 88-6430-12-6, is affirmed.

BARRY, J., dissents.