COM., DEPT. OF TRANSP. v. Fiester

583 A.2d 31, 136 Pa. Commw. 342, 1990 Pa. Commw. LEXIS 630

• Court: Commonwealth Court of Pennsylvania
• Decided: November 28, 1990
• Docket: 2233 C.D. 1989
• Status: Published

Opinions

DOYLE, Judge.

Before us for consideration is the appeal by the Pennsylvania Department of Transportation (Department) from an order of the Court of Common Pleas of Lycoming County. That court sustained the appeal of Jeffrey Lew Fiester from a one-year suspension of his operating privilege imposed pursuant to Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b), due to his failure to submit to a blood test following his arrest for driving under the influence.

Piester’s suspension appeal was heard before the common pleas court on October 11, 1989, and the following relevant facts were established. While investigating a single-vehicle accident, Trooper O’Brien of the Pennsylvania State Police was advised that the driver of that vehicle had been taken by ambulance to a nearby hospital. Upon his arrival at the hospital, Trooper O’Brien encountered Fiester in the emergency room. There was an odor of alcohol about Fiester, his eyes were glassy and his speech was slurred. Trooper O’Brien placed Fiester under arrest for driving under the influence, advised him of his Miranda¹ rights, and further advised Fiester that under the implied consent provisions of the Vehicle Code his operating privilege would be suspended for twelve months if he refused to consent to a blood test. At that point, Trooper O’Brien asked Fiester to submit to a blood test and Fiester refused. Fiester then asked if he could decide the following day about the test, and Trooper O’Brien advised him that the decision could not wait and had to be made immediately. Following further iterations of the implied consent provisions, Fiester again refused to submit to a blood test.²

The common pleas court sustained Fiester’s appeal based upon our Supreme Court’s decision in Commonwealth v. McFadden, 522 Pa. 100, 559 A.2d 924 (1989), the facts of which the court found to be indistinguishable from the instant case. The decision in McFadden was grounded upon the Supreme Court’s prior decision in Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), in which the Court stated:

The law has always required that the police must tell the arrestee of the consequences of a refusal to take the test so that he can make a knowing and conscious choice____

Accordingly, where an arrestee requests to speak to or call an attorney, or anyone else, when requested to take a breathalyzer test, we insist that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test.

An arrestee is entitled to this information so that his choice to take a breathalyzer test can be knowing and conscious and we believe that requiring the police to qualify the extent of the right to counsel is neither onerous nor will it unnecessarily delay the taking of the test.

Id., 521 Pa. at 252-53, 555 A.2d at 877-78 (citations omitted).

Before this Court, the Department urges that we reverse the common pleas court and reinstate Fiester’s license suspension on the ground that Fiester failed to “meet his burden of proving that he was confused as to his right to consult a lawyer prior to deciding whether to take a blood test due to the fact that Trooper O’Brien read him his Miranda rights.” For the following reasons, we decline to adopt such a standard and we will affirm the common pleas court.

The Department contends that in order to make out a valid defense under O’Connell, the licensee must prove (1) that Miranda warnings were given prior to the request to submit to chemical testing; (2) that the licensee was confused as to the applicability of the right to counsel regarding the chemical testing; and (3) that the police did not specifically inform the licensee that the Miranda right to counsel did not apply to the chemical testing. The Department further contends that the licensee must also have indicated to the police at the time the request to submit to a chemical test was made that he or she was confused as to the applicability of the right to counsel. Such is not the law under O’Connell and McFadden. The Department’s position would limit the holding in those decisions in a manner we perceive not intended by the Supreme Court and in a manner not supported by the language of those decisions. The O’Connell Court stated that:

The problem in this case, and many similar cases that have arisen, is that these requests to take breathalyzer tests take place as part of the investigation conducted by police in regards to a drunk driving charge which is criminal in nature. The police proceed with the Miranda warnings and at some point (usually when the driver asks to see his lawyer) stop questioning and abruptly change ‘hats’ and ask the driver to submit to the breathalyzer test. If the arrestee hesitates and attempts to exercise his Miranda right by asking for a lawyer or asking to make a phone call, a refusal is recorded.

521 Pa. at 251, 555 A.2d at 877.

Contrary to the Department’s contention, there is no language in O’Connell which requires a licensee to prove that he or she was confused as to the inapplicability of the constitutional right to remain silent, or the constitutional right to counsel etc., before submitting to chemical tests. Rather, the Court’s language in O’Connell clearly indicates that where the Miranda warnings precede the chemical test request as well as the implied consent warning, such a juxtaposition is per se confusing. Therefore, absent an explanation by the police of the inapplicability of the right to counsel to chemical testing, a licensee may make out a valid prima facie defense under O’Connell by a showing that the Miranda warning preceded the request to submit to chemical testing.

If any doubt exists as to the parameters of this rule under O’Connell, it is dispelled by McFadden. In McFadden the Court held that the licensee’s refusal to submit to a breath test was not knowing and conscious because the police did not provide him with the information required by O’Connell. The facts in McFadden are sketchy, but the decision clearly indicates that the licensee was given his Miranda rights first at the scene where he was arrested and again at the police station, this time in writing, and was then requested to submit to a breath test. He refused and asked to make a telephone call which request was granted.³ Subsequent to making the call McFadden became belligerent and a refusal to take the test was recorded. We believe it is highly significant that despite the fact that McFadden did complete his telephone call the Supreme Court nevertheless held that he was still entitled to be informed that his Miranda rights did not apply to the breathalyzer test. Accordingly, we must conclude that where Miranda rights are followed by a request to take a chemical test and no explanation is given that the Miranda rights are inapplicable to the testing procedure, a per se violation of the O’Connell rule exists.⁴

In the instant case, Trooper O’Brien’s testimony before the common pleas court established that Fiester was initially given the Miranda warnings, which he indicated that Fiester understood, and then Fiester was requested to submit to a blood test. While it is true that Fiester himself testified that he did not remember whether or not Trooper O’Brien read to him his Miranda rights, because he was “in and out of it,” the Trooper’s testimony supplied sufficient credible evidence, which the trial court accepted, to support the court’s finding that Miranda rights were given. By its finding that Fiester’s testimony in this respect was not credible, the trial court rejected a finding to the contrary.

Therefore, based on our discussion supra, this sequence of events was per se confusing. O’Connell. Absent an explanation to Fiester by Trooper O’Brien that the right to counsel does not apply to chemical tests, Fiester established a valid defense and the common pleas court properly sustained his appeal. The rule as we articulate today has the benefit of being easily understandable by the motoring public, certain in its application by our Commonwealth’s law enforcement officers, and in full keeping with what we believe our Supreme Court held in the O’Connell and McFadden decisions.⁵

In brief response to the analysis provided by the dissent that we are hereby creating by judicial fiat what is contrary to “the clear language and intent” of Section 1547 of the Vehicle Code and contrary to the Supreme Court’s decisions in O’Connell and McFadden, first, it is clear, of course, even by acknowledgment in the dissent itself (dissent Op. p. 36), that “the words ‘knowing and conscious refusal’ are absent from Section 1547,” and second, again by acknowledgement in the dissent (dissent Op. p. 36), “the ‘knowing and conscious refusal’ concept forms the foundation of the O’Connell and McFadden cases.” Moreover, our analysis of what the Supreme Court has determined the law of this Commonwealth should be has been confirmed by the Supreme Court’s most recent decision in Mihalaki v. Commonwealth, Department of Transportation, 525 Pa. 332, 580 A.2d 313 (1990), where the Supreme Court reversed a decision of this Court which had been filed prior to its McFadden (March 6, 1989) and O’Connell (June 7, 1989) decisions.

In Mihalaki, no Miranda warnings had been given and the licensee, out of his fear of needles, refused to submit to a blood test until after he contacted his attorney. When his attorney could not be immediately located, the police left the hospital and recorded a refusal. Thereafter, the licensee was able to contact his attorney and he then submitted to the blood test. Nevertheless, the Supreme Court reversed our decision and, in a one paragraph per curiam order with a reference only to O’Connell, abrogated the suspension on the basis of the trial court’s conclusion that “once the driver requests to speak to a lawyer, the [police] officer must inform him he has no such right under the Motor Vehicle Code” (emphasis in original). In Mihalaki no patent confusion over Miranda rights existed. No Miranda warnings had been given. In fact, no confusion existed at all; the licensee was merely afraid of needles and insisted on talking to his lawyer first before submitting to the blood test.

Absent a situation which demonstrates a refusal on other grounds or for other reasons,⁶ our Supreme Court therefore is clearly mandating, when either a licensee requests to speak to someone (either his attorney or someone else) or Miranda warnings are given, that an affirmative duty of explanation on the part of the police exists to dispel any reliance by the driver on his/her constitutional right to counsel even in situations where there is no overt demonstration of confusion, which principle of law directly contradicts the statement in the dissent (dissent Op. p. 38), that “O’Connell requires that two conditions be met before a warning that Miranda does not apply to [a] breathalyzer test,” the first being that “the licensee must have been given Miranda warnings.” (Emphasis in original.)

What we establish is a conscientious adherence to the law set out by our Supreme Court; we do not “provide escape routes for drivers who are highway menaces.” Further, we do not believe that the Supreme Court pronouncements should be perceived as “an additional avenue through which drunk drivers can try to avoid basic societal responsibilities” (dissent Op. p. 36).

One further comment with regard to the dissent’s analysis of the Supreme Court's decision in McFadden is necessary. The dissent suggests that the Supreme Court held “that the licensee did not make a knowing and conscious refusal because after the phone call McFadden did not demonstrate that he was no longer confused.” We respectfully suggest that if this were so it would place an affirmative burden on the licensee to demonstrate that he was not confused, thereby destroying his own defense, an improvident if not procedurally illogical task.

Accordingly, based on the above, the order of the common pleas court is affirmed.

ORDER

NOW, November 28, 1990, the order of the Court of Common Pleas of Lycoming County in the above-captioned matter is affirmed.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . In cases involving the suspension of a driver's license for refusal to submit to chemical testing, we have held in the past that the Department must prove four elements: (1) that the licensee was placed under arrest for driving under the influence; (2) that he or she was requested to submit to chemical testing; (3) that he or she was informed that a refusal to submit to such testing would result in a suspension of his or her operating privileges; and (4) that he or she refused. Department of Transportation, Bureau of Driver Licensing v. Iannitti, 100 Pa.Commonwealth Ct. 239, 514 A.2d 954 (1986). Based upon the record made before the common pleas court, it is clear that the Department established these elements. The only question before us, therefore, is whether Fiester’s refusal to submit to the blood test was knowing and conscious.

3 . The opinion does not indicate who McFadden called or what transpired during the conversation.

4 . This is not to say, however, that in a particular case where the facts as found by the trial court indicate that the licensee was not confused over his or her rights, even though the licensee has been advised of his or her Miranda rights, O’Connell would be inapplicable. See, e.g., Department of Transportation, Bureau of Driver Licensing v. Tomczak, 132 Pa.Commonwealth Ct. 38, 571 A.2d 1104 (1990), wherein we held that O’Connell did not apply where a licensee was confused as to what he needed to do to avoid suspension of his license (i.e., submit to the test), and not as to the applicability of his Miranda rights to chemical testing. Specifically, in Tomczak the licensee's testimony revealed that even though he was advised of the consequences of his refusal to take the test, it was not until after he refused that he fully realized the consequences of his refusal. Cf. Appeal of Attleberger, 136 Pa.Commonwealth Ct. 329, 583 A.2d 24 (1990, contemporaneously with this opinion) (O’Connell did not apply where licensee’s confusion stemmed from a request to take a blood test after he submitted to a preliminary breath test). In Attleberger the licensee testified that because he took a preliminary breath test at the arrest scene he did not think he needed to consent to the later request to take a blood test at a medical center. Further examples would be where a licensee testifies that he or she was not confused.

5 . We hereby specifically overrule Luckey v. Commonwealth, 131 Pa. Commonwealth Ct. 155, 569 A.2d 1008 (1990); Department of Transportation, Bureau of Driver Licensing v. Acton, 132 Pa.Commonwealth Ct. 340, 572 A.2d 868 (1990) and Browne v. Department of Transportation, Bureau of Traffic Safety, 132 Pa.Commonwealth Ct. 612, 574 A.2d 114 (1990). Further, to the extent that any of this Court’s other reported opinions suggest an analysis contrary to the one set forth today, they are hereby disavowed. See Stehle v. Department of Transportation, 132 Pa.Commonwealth Ct. 648, 574 A.2d 132 (1990).

6 . See supra n. 4.