Cook v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

664 A.2d 1098, 1995 Pa. Commw. LEXIS 429
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 8, 1995
StatusPublished
Cited by3 cases

This text of 664 A.2d 1098 (Cook v. Commonwealth, Department of Transportation, Bureau of Driver Licensing) 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
Cook v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 664 A.2d 1098, 1995 Pa. Commw. LEXIS 429 (Pa. Ct. App. 1995).

Opinions

DOYLE, Judge.

The Department of Transportation, Bureau of Driver Licensing (DOT), appeals an order of the Court of Common Pleas of Indiana County, which sustained Linda S. Cook’s statutory appeal of a one year suspension of her driver’s license.

On March 20, 1992, Pennsylvania State Police Trooper James J. Steigerwalt was dispatched to the Irwin Interchange of the Pennsylvania Turnpike to investigate an automobile accident. When he arrived at the scene, he discovered an automobile sitting on top of a medial barrier separating the traffic lanes from an employee’s parking lot. Cook then approached the Trooper and informed him that she was the driver of the vehicle. As Cook walked toward the Trooper, he notice that she was swaying and staggering; as they spoke, he detected an odor of alcohol on Cook’s person and breath and she admitted to him that she had consumed two glasses of wine earlier that day. She was then placed under arrest for driving under the influence of alcohol. The Trooper then requested that she submit to chemical testing.

The Trooper provided Cook with both Miranda 1 warnings and the Implied Consent Warning, and requested that she take the intoxilyzer test.2 Cook initially agreed to take the test; however, she then refused, insisting to speak to her attorney. The Trooper informed Cook that she did not have the right to speak to an attorney or anyone else prior to taking the test, and Cook then refused to take the test.

On April 14, 1992, DOT suspended Cook driver’s license for one year, pursuant Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b), for refusing chemical testing. Cook filed a timely statutory appeal with the trial court and, after a hearing; the trial court sustained her appeal. Cook had argued that her suspension was improper because the Trooper did not provide her with sufficient warnings required under Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), and, therefore, she was unable to make a knowing and conscious refusal of whether or not to take the test. Relying on Department of Transportation, Bureau of Driver Licensing v. Sorg, 147 Pa.Commonwealth Ct. 82, 606 A.2d 1270, petition for allowance of appeal denied, 531 Pa. 657, 613 A.2d 561 (1992), the trial court determined that, because the Trooper only told Cook that she did not have the right to speak to counsel or anyone else before taking the test, the warning provided by the Trooper was inadequate under O’Connell. This appeal by DOT followed.

DOT contends that the trial court erred in sustaining Cook’s appeal, because the warning provided by Trooper Steigerwalt was adequate under our Supreme Court’s decisions [1100]*1100in Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994), and Department of Transportation, Bureau of Driver Licensing v. Frain, 538 Pa. 236, 648 A.2d 285 (1994).

In O’Connell, our Supreme Court held that a motorist may be confused over whether his or her Miranda rights apply to testing for blood alcohol content, because the motorist is arrested for a crime, driving under the influence, yet the issue of consent to chemical testing is civil. O’Connell places the burden on the police, in situations where a motorist overtly manifests confusion over the applicability of the Miranda rights to chemical testing or the police read the Miranda warnings to the motorist before requesting the driver to submit to a chemical test, to explain to the motorist that Miranda rights do not apply to chemical testing. Commonwealth v. Danforth, 530 Pa. 327, 608 A.2d 1044 (1992). The purpose of the O’Con-nell explanation is to enable a motorist to make a knowing and conscious decision on whether to refuse to submit to chemical testing.

In the present case, the Trooper provided Cook with Miranda warnings prior to requesting that she submit to chemical testing, and Cook, thereafter, demanded to speak with counsel. Therefore, under Dan-forth, the Trooper was obligated to provide Cook with an O’Connell warning. Accordingly, we must now determine whether the warning the Trooper provided to Cook satisfied O’Connell.

Our Supreme Court further developed the requirements for an adequate O’Connell warning in Ingram and Frain, two eases that were consolidated and decided in a single opinion. Reversing this Court’s decision in Sorg,3 the Supreme Court explained in Ingram and Frain that an O’Connell warning must include the following information: “first, a motorist must be informed that his driving privileges will be suspended for one year if he refuses chemical testing, second, the motorist must be informed that his Miranda rights do not apply to chemical testing.” Ingram, 538 Pa. at 255, 648 A.2d at 294-95. The Supreme Court noted that its holding was not a “mantra” that the police are required to mechanically repeat, but merely describes the subject matter the police must cover in their warning. In addition, the court expressly held that DOT’s DL-26 form satisfies O’Connell; that form reads, in pertinent part, as follows:

You do not have the right to consult with an attorney, or anyone else, prior to taking the chemical test. If you fail to provide the requested sample, by not following instructions or by continuing to request to speak with someone, it will be considered a refusal.

Ingram, 538 Pa. at 251, 648 A.2d at 292.

The Supreme Court applied its holding in Ingram and Frain in Department of Transportation, Bureau of Driver Licensing v. Gomo, 538 Pa. 475, 649 A.2d 431 (1994), a ease where the police provided a motorist with an O’Connell explanation similar to the explanation in the instant case. Because the Supreme Court’s decision in Gomo is a per curiam order, we will describe the facts as outlined in this Court’s opinion, Department of Transportation, Bureau of Driver Licensing v. Gomo, 157 Pa.Commonwealth Ct. 142, 629 A.2d 217 (1993), rev’d, 538 Pa. 475, 649 A.2d 431 (1994).

In Gomo, a motorist refused to submit to chemical testing until he spoke to his attorney. The police told the motorist that “he was not entitled to an attorney before taking the test.” The motorist refused the test and his driver’s license was suspended for one year. He appealed to the trial court, which upheld his suspension on the grounds that he [1101]*1101exhibited no overt confusion and that the police adequately explained his rights to him. That decision was appealed to this Court, which reversed.

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