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

969 A.2d 30, 2009 Pa. Commw. LEXIS 117, 2009 WL 775412

• Court: Commonwealth Court of Pennsylvania
• Decided: March 26, 2009
• Docket: 900 C.D. 2008
• Status: Published

Opinions

OPINION BY

Judge BUTLER.

Olius Harris (Harris) appeals from an order of the Court of Common Pleas of Delaware County (trial court) denying his appeal and reinstating his one year license suspension for chemical testing refusal. The only issue Harris raises is whether he was adequately advised of the chemical test refusal warnings pursuant to Section 1547(b)(2) of the Vehicle Code, as amended, 75 Pa.C.S. § 1547(b)(2). For reasons that follow, we affirm the trial court.

On August 25, 2007, Harris was involved in a three car collision. Harris was driving the third car in a row of three that were stopped at a red light when the second car hit the first car, and the third car hit the second car. Pennsylvania State Police Trooper Alan R. MacMurray (Trooper MacMurray) arrived on the scene and observed that Harris smelled like alcohol, had blood shot eyes and slurred speech. After witnessing Harris fail to perform one sobriety test, and unsatisfactorily perform two others, Trooper Mac-Murray placed Harris under arrest for driving under the influence of alcohol (DUI).

Trooper MacMurray subsequently transported Harris to Riddle Memorial Hospital for the purpose of obtaining a blood sample. After checking in, Trooper MacMurray proceeded to advise Harris of his rights pursuant Section 1547(b)(2) of the Vehicle Code by reading the warnings on the implied consent form, Form DL-26. Trooper MacMurray read the first two paragraphs which stated:

1. Please be advised that you are under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code.

2. I am requesting that you submit to a chemical test of Blood.

Reproduced Record (R.R.) at 1. At which point Harris stated: “absolutely not, I’m not giving no blood.” R.R. at 26. Trooper MacMurray responded by asking Harris “are you sure you don’t want to?” Harris replied “I’m not giving any blood.” R.R. at 26. Trooper MacMurray then advised Harris that he would have to sign the form to indicate his refusal. Trooper MacMur-ray began reading the first line of paragraph 3 of the DL-26 form which states: “[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or if you have been previously sentenced for driving under the influence.” R.R. at 26. However, before he read halfway through the sentence, Harris interrupted and stated that he was not going to sign anything he did not read himself. Trooper MacMurray then handed Harris the DL-26 form. After reading the form, Harris asked if it was mandatory for him to take the blood test and Trooper MacMurray informed him that it was not. Finally, Trooper MacMurray asked Harris to sign the form indicating that he refused the chemical testing, and Harris did so.

On September 18, 2007, Harris was notified that his license had been suspended for one year for refusing chemical testing. On October 15, 2007, Harris appealed to the trial court. A hearing was held on December 18, 2007, and the trial court denied Harris’ appeal and reinstated his license suspension. Harris timely appealed to this Court.¹

Harris argues that the trial court erred in denying his appeal because Trooper MacMurray did not advise him that his license would be suspended if he did not submit to chemical testing, thus Harris did not make a knowing refusal. Harris relies on Solomon v. Dep’t of Transp., Bureau of Driver Licensing, 966 A.2d 640 (Pa.Cmwlth.2009). There, this Court held, based on the totality of the circumstances, that where a licensee is not combative and an officer does not ask follow up questions, the statement “do what you’ve got to do” does not constitute a refusal when made in response to a request for chemical testing.

Harris’ reliance on Solomon is misplaced, however, as that case involved the issue of whether a specific response by a licensee constitutes a refusal, and this case involves the distinct issue of whether a licensee has made an informed refusal where the officer has not read the entire Form DL-26 to the licensee, but handed the form to the licensee to read for himself upon the licensee’s request.

It is clear that an officer has to orally inform a licensee of the consequences of refusing chemical testing for a licensee’s refusal to be considered an adequately informed refusal. Yoon v. Dep’t of Transp., Bureau of Driver Licensing, 718 A.2d 386 (Pa.Cmwlth.1998). However, if a licensee prevents an officer from reading the warnings, and the licensee refuses chemical testing by his conduct, the licensee is still considered to have made an informed refusal. Hudson v. Dep’t of Transp., Bureau of Driver Licensing, 830 A.2d 594 (Pa.Cmwlth.2003).

While Trooper MacMurray, in the instant case, did not read the entire warning to Harris, and Harris did not prevent the officer from doing so, Harris became sufficiently informed when he interrupted the reading of the warnings, asking to read them himself, and the officer handed Harris a copy of the entire form. At that point, Harris waived his right to have the officer perform a full reading of the warnings. Accordingly, we hold that where an officer attempts to orally inform a licensee of his rights by reading Form DL-26, and the licensee interrupts such reading, specifically by requesting to read the warnings himself, and the officer furnishes a typewritten copy of the warnings, if the licensee thereafter refuses chemical testing, that refusal shall be deemed an informed refusal. This holding is further supported when, as here, the licensee signs the warnings after having read them.

As stated above, Harris asked Trooper MacMurray if the chemical test was mandatory, and Trooper MacMurray responded that it was not. This Court specifically holds that the officer’s response was not a misstatement of the law as licensees are permitted to refuse chemical testing, albeit to their own detriment. Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1). The licensee will not be forced to incriminate himself by submitting to chemical testing. However, a driver’s license is properly revoked where the licensee effectively revokes his implied consent to submit to chemical testing.

For the above reasons, the order of the trial court is affirmed.

Judge Smith-Ribner dissents.

ORDER

AND NOW, this 26th day of March, 2009, the December 18, 2007 order of the Court of Common Pleas of Delaware County is hereby affirmed.

1 . This Court’s scope of review is limited to determining whether the findings of facts are supported by competent evidence, whether an error of law was committed, or whether there was an abuse of discretion. Orloff v. Dep’t of Transp., Bureau of Driver Licensing, 912 A.2d 918 (Pa.Cmwlth.2006).