COM., DEPT. OF TRANSP. v. Boucher

691 A.2d 450, 547 Pa. 440, 1997 Pa. LEXIS 588
CourtSupreme Court of Pennsylvania
DecidedMarch 25, 1997
Docket19 E.D. Appeal Dkt. 1995
StatusPublished
Cited by48 cases

This text of 691 A.2d 450 (COM., DEPT. OF TRANSP. v. Boucher) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
COM., DEPT. OF TRANSP. v. Boucher, 691 A.2d 450, 547 Pa. 440, 1997 Pa. LEXIS 588 (Pa. 1997).

Opinions

OPINION

ZAPPALA, Justice.

This is an appeal from the order of the Commonwealth Court reversing the order of the Montgomery County Court of Common Pleas, which sustained the suspension of Appellee Richard J. Boucher’s operating privileges imposed by the Department of Transportation, Bureau of Driver Licensing pursuant to 75 Pa.C.S. § 1547(b)(1).1 We reverse and reinstate DOT’s suspension of Boucher’s operating privileges.

[443]*443On June 14, 1991, Boucher was arrested and charged with driving under the influence2 by the Haverford Township Police. Upon his arrest Boucher was advised of his Miranda rights3 and transported to the Haverford Township police station. At the station, Officer Carroll requested that Boucher perform a breathalyzer test. Officer Carroll informed Boucher that in accordance with the Implied Consent Law, if Boucher refused to submit to the test, his operating privileges would be suspended for one year. Officer Carroll did not inform Boucher that his Miranda rights were not applicable to the request to perform the breathalyzer test.

Boucher initially assented to the test. The first test result indicated the presence of mouth alcohol and was rejected. On two subsequent test attempts, Boucher failed to produce sufficient breath samples for analysis. Officer Carroll then gave Boucher the opportunity to take a blood test instead, but Boucher refused. Subsequently, Officer Carroll recorded the failed attempts as a refusal to submit to chemical testing. As a refusal was recorded, DOT notified Boucher that his operating privileges would be suspended.

Boucher appealed from the notice of suspension to the common pleas court for a de novo hearing. He challenged the suspension asserting that he had not refused to submit to a chemical test, and that he was not advised by the police officer that his Miranda rights did not apply when asked to submit to testing. At the hearing Boucher testified that he believed that he did not have to take the test because he was already arrested and was afraid of the reading that the test might produce. He indicated that the police officer’s recitation of his Miranda rights had led him to believe that he did not have to give a breath sample. He also testified that he thought he [444]*444was giving a sufficient sample during the three attempts but was hesitant about giving the samples to the officer.

Officer Alan Ross, a certified intoximeter operator with the Haverford Township Police Department, testified that Boucher was informed of the various provisions of the implied consent law, including specific instructions that Boucher’s license would be suspended for a year if he failed to cooperate or submit to the test. Officer Ross then proceeded to perform the breathalyzer test.

Officer Ross explained that the first test result indicated the presence of mouth alcohol, a residual amount of alcohol detected in the mouth. A slope detector device on the machine used during the test shut down the system when any mouth alcohol was detected. A second test was then administered, but Boucher did not cooperate during that test. Boucher provided an insufficient breath sample despite being shown how to provide a sample several times. Boucher was given the third test after a brief interval but failed again to give an adequate breath sample. Officer Carroll’s request that Boucher submit to a blood test was refused.

At the hearing, the trial judge made the following findings of fact. Boucher was advised of his Miranda rights at the time of his arrest. Boucher was informed that pursuant to the Implied Consent Law a refusal to submit to chemical testing would result in the suspension of his operating privileges for one year. By deliberately failing to supply sufficient breath samples, Boucher had refused to submit to chemical testing.

The trial judge determined that Boucher understood from the explanation of his Miranda rights that he had the right to remain silent. He concluded, however, that Boucher’s testimony did not establish that he felt he was entitled to a lawyer before he submitted to chemical testing. Nor did Boucher’s testimony indicate that he felt he needed or wanted a lawyer. Boucher did not testify that he told the police officer that he was confused and that his confusion caused him to give insufficient breath samples. The trial judge found that since Boucher had failed to express his state of confusion regarding [445]*445his Miranda rights to the police officers, no additional instructions were required under Commonwealth, Department of Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), discussed infra. Based on Boucher’s testimony, the trial judge concluded that the police officer’s reading of Miranda rights was not the reason why Boucher failed to provide adequate breath samples. Accordingly, the trial judge denied his appeal and reinstated the suspension of operating privileges.

Boucher then appealed to the Commonwealth Court, asserting that the trial judge erred in affirming the license suspension because he had been read his Miranda rights prior to the request for a chemical test when there was no evidence that he had been advised that his Miranda rights were inapplicable to the chemical test procedure. The Commonwealth Court reversed the trial court’s order because there was no indication in the record that any of the police officers had told Boucher that his Miranda rights did not apply to the chemical test. The Commonwealth Court reasoned that in this case DOT had the burden of proving that Boucher had been provided with that information, commonly referred to as the “O’Connell warning.” Since DOT did not provide such evidence, the license suspension was found to be improper.

The phrase, “O’Connell warning”, is a shorthand expression for the duty imposed upon a police officer to inform a motorist, who has been asked to submit to chemical testing, that the Miranda rights are inapplicable to a request for chemical testing under the Implied Consent Law. Commonwealth, Department of Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989). The O’Connell warning must specifically inform a motorist (1) that his driving privileges will be suspended for one year if he refuses chemical testing; and (2) that his Miranda rights do not apply to chemical testing. Commonwealth, Department of Transportation v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994).

In this case, the Commonwealth Court concluded that the failure of the police officer to give the O’Connell warning to [446]*446Boucher required reversal of his license suspension. We granted allocatur to address the issue of whether a police officer’s failure to explain the inapplicability of Miranda rights to chemical testing precludes suspension of the motorist’s license under 75 Pa.C.S. § 1547(b) when the motorist intentionally fails to supply an adequate breath sample for chemical testing. For the following reasons, we find that failure of the police to give an O’Connell

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Bluebook (online)
691 A.2d 450, 547 Pa. 440, 1997 Pa. LEXIS 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-dept-of-transp-v-boucher-pa-1997.