Commonwealth v. Mercer

699 A.2d 1363, 1997 Pa. Commw. LEXIS 376
CourtCommonwealth Court of Pennsylvania
DecidedAugust 21, 1997
StatusPublished
Cited by1 cases

This text of 699 A.2d 1363 (Commonwealth v. Mercer) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Mercer, 699 A.2d 1363, 1997 Pa. Commw. LEXIS 376 (Pa. Ct. App. 1997).

Opinion

DOYLE, Judge.

Richard Dustin Mercer (Licensee) appeals an order of the Court of Common Pleas of Allegheny County (Common Pleas), which affirmed a one-year suspension of Licensee’s driver’s license, imposed by the Department of Transportation (DOT), for refusing to submit to chemical testing pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547.1

On September 19, 1995, Officer Jeff A. Filardi of the Charleroi Borough Police De[1364]*1364partment observed Licensee’s vehicle traveling the wrong way on a one-way street. Officer Filardi stopped Licensee’s vehicle and detected an odor of alcohol on Licensee’s person. Licensee submitted to field sobriety tests, which he failed. Officer Filardi then requested Licensee to submit to a chemical test of his blood. Licensee agreed to the blood test, and Officer Filardi transported him to Mon Valley Hospital.

At the hospital, Officer Filardi asked Licensee if he was willing to submit to the blood test and informed Licensee that his operating privilege would be suspended for one year if he refused to submit to the test. Further, Officer Filardi presented Licensee with a hospital consent form, which contained a waiver of liability provision. The hospital would not draw Licensee’s blood unless he signed the form. Licensee stated that he did not understand the form and refused to sign it without first consulting with his lawyer. Officer Filardi explained to Licensee that Licensee had no right to speak to an attorney before submitting to the blood test. Licensee, nevertheless, did not submit to the test and Officer Filardi notified DOT that Licensee refused chemical testing.

By notice mailed on December 8, 1995, DOT suspended Licensee’s driver’s license for one year for refusing to submit to chemical testing. Licensee appealed the suspension to Common Pleas.

At the hearing, Officer Filardi testified to the above described facts. Licensee also testified, explaining that he did not understand the hospital form and that he was willing to take the blood test. Common Pleas accepted Officer Filardi’s testimony as credible and dismissed Licensee’s appeal, reasoning as follows:

It is clear that [Officer Filardi] made a proper traffic stop and arrest and that he duly informed [Licensee] of the implied consent law prior to requesting his submission. We found no reasonable basis to support [Licensee’s] claim that he was confused by the information provided to him regarding his rights and the testing procedure.

(Common Pleas opinion at 1-2.) This appeal by Licensee followed.

On appeal, Licensee contends that Common Pleas erred in dismissing his appeal, because a motorist’s refusal to sign a consent form does not constitute a refusal to submit to chemical testing. Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996).

In Renwick, a police officer requested a motorist to submit a blood sample for chemical testing and presented the motorist with a consent form which advised her, among other things, that she was under arrest for driving under the influence of alcohol and requested the motorist to agree to the blood test. The motorist, however, sat mute, turned her head, and ignored the request for a blood sample. The motorist continued, in the face of an additional request, to be unresponsive. After the police officer informed the motorist that silence constituted a refusal of the test subjecting her to a suspension, the motorist told the police officer that she would submit to the test. But, when the officer presented her with the consent form, she refused to sign it. The police officer told the motorist that, if she did not sign the document, he would deem it a refusal of the test. DOT suspended her driver’s license for refusing chemical testing. She appealed to a common pleas court, which dismissed her appeal. We reversed, holding that Section 1547 of the Vehicle Code does not require a licensee to sign a consent form in addition to consenting to the chemical test. The Supreme Court [1365]*1365granted allocatur to consider whether a licensee’s refusal to sign a consent form establishes a refusal to submit to chemical testing.

The Supreme Court concluded that:

Requiring a licensee to sign a form, of whatever nature, in order to consent to chemical testing, is beyond the parameters of § 1547 [of the Vehicle Code] which does not require a licensee to complete any pretest procedure. We find ... persuasive the reasoning that the [Vehicle] Code, not only grants civil immunity to hospitals, physicians, and technicians regarding the withdrawal of blood, § 1547(j),

Renwick, 543 Pa. at 130-31, 669 A.2d at 939 (footnote omitted). The Supreme Court, nevertheless, explained that, even if a licensee is improperly presented with a consent form, the licensee is nonetheless required, unequivocally and without qualification, to assent to chemical testing.

Applying the above principles to the facts, the Renwick Court determined that Renwick was not required to sign the consent form and that her failure to sign the form did, in and of itself, not establish a refusal. However, because her behavior in ignoring the police officer’s repeated requests to submit to test demonstrated a refusal of the test, the court reinstated her suspension.3

In the present ease, Licensee argues that he consented to the blood test, but that Officer Filardi insisted that he sign the consent form and marked a refusal when Licensee refused to comply. Hence, in Licensee’s opinion, Renwick mandates that Common Pleas order be reversed. On the other hand, DOT asserts that Licensee did not unequivocally assent to the blood test, in view of his continuing demands to speak to a lawyer even after he was told that he had no right to counsel.

Officer Filardi’s testimony shows that Licensee agreed to submit to chemical testing before he was transported to the hospital. However, after Licensee arrived at the hospital, he was presented with a hospital consent form. Officer Filardi testified that he read the form to Licensee and testified that he told Licensee that he had to sign the form and waive his rights against the hospital.4 Officer Filardi testified as follows:

Q. Did you give Mr. Mercer the opportunity, at any time when you were at the hospital, to take the blood test without signing any forms?
A. The hospital will not draw blood unless he signed the form.
Q. I will ask a statement of fact: Officer, you presented — you read the form to Mr. Mercer, did you not?
A. Yes, I did.
Q. In that form, did you ever tell Mr. Mercer that he had to waive liability in any way toward the hospital?
A. Yes.
Q. And did he, with respect to that, request any other way—
A. His only response was that he wanted his attorney present.

(Notes of Testimony at 13-14.)

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Bluebook (online)
699 A.2d 1363, 1997 Pa. Commw. LEXIS 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mercer-pacommwct-1997.