O'Brien v. PennDOT

22 Pa. D. & C.4th 385, 1995 Pa. Dist. & Cnty. Dec. LEXIS 227
CourtPennsylvania Court of Common Pleas, Chester County
DecidedJanuary 11, 1995
Docketno. 94-03468
StatusPublished

This text of 22 Pa. D. & C.4th 385 (O'Brien v. PennDOT) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Brien v. PennDOT, 22 Pa. D. & C.4th 385, 1995 Pa. Dist. & Cnty. Dec. LEXIS 227 (Pa. Super. Ct. 1995).

Opinion

SHENKIN, J.,

Petitioner, motorist, has filed an appeal from our order of October 4, 1994, wherein we denied his appeal and ordered the respondent, PennDOT, to reinstate the suspension of the motorist’s operating privileges. Pursuant to Pa. R.A.P. 1925, we herewith file this opinion to set forth the reasons for our order. We also note that our reasons are substantially set forth in the footnote to the order from which the motorist has appealed.

[386]*386Following the filing of this appeal, the motorist was directed to file a concise statement of the matters complained of and has done so. Although the concise statement contains four separately numbered paragraphs, it appears to us that but a single issue is raised. The motorist contends that his conduct does not constitute a refusal so as to permit the suspension of his operating privileges because his actions were not a knowing, conscious refusal. He contends that his actions cannot be considered to have been knowing and conscious since he was confused as to his right to consult an attorney before being required to submit to testing. He was confused, he asserts, because he was permitted to attempt to contact his attorney before being required to submit to testing but was in fact unable to make contact with his attorney. Thus, even though he was advised that he did not have the right to speak to an attorney, or anyone else, before being required to submit to testing, he believed that he had that right, or was confused about whether or not he had that right, because of the actions of the police in permitting him to attempt to contact his attorney, even though they told him that he had no right to do so. In other words, the motorist argues that even if he were told that he had no right to speak to an attorney or anyone else, he was permitted to attempt to do so and that left him confused because he could not understand how the police would allow him to try to call his lawyer if he didn’t have the right to do so. The implicit if unspoken argument is that the motorist is justified in ignoring what he is told by the police and may assume that the police would never voluntarily afford him an opportunity to do something unless they were required to do so. We reject the motorist’s argument.

[387]*387By notice dated April 12, 1994, the motorist was notified by PennDOT that his driving privileges were being suspended for a period of one year because of his refusal to submit to chemical testing. The motorist filed a timely appeal from that notice. At the hearing on the motorist’s appeal, PennDOT established that the police officer had a reasonable basis for believing that the motorist had been operating a motor vehicle while under the influence of drugs or alcohol, that the motorist was arrested and requested to submit to chemical testing and that the motorist refused to consent to such testing. The motorist does not contest these facts but contends that he was confused as to his right to speak to an attorney prior to submitting to such testing and that such confusion vitiates the refusal. The alleged confusion was brought about by the fact that the officer permitted the motorist to attempt to contact his attorney by telephone prior to submitting to the chemical testing. PennDOT’s evidence also established that the arresting officer clearly and definitively advised the motorist that the motorist did not have the right to consult with an attorney or anyone else prior to taking the chemical test. The police officer read to the motorist from PennDOT’s Form DL-26, a copy of which was admitted into evidence at the hearing. The warnings provided on DL-26 satisfy as a matter of law the minimum requirements for O’Connell warnings. PennDOT v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994). We are satisfied that the evidence proves that the officer so advised the motorist on numerous occasions before the motorist refused to take the chemical test. It was also established that at some point prior to the refusal, the motorist was permitted to attempt to contact his attorney by telephone but was unable to do so.

[388]*388To get to the motorist’s issue, three questions present themselves. First, do the circumstances of this case give rise to the necessity of giving the motorist the so called O ’Connell warning? We are satisfied that they do. Second, was a proper and sufficient O’Connell warning given? We are satisfied that it was. Finally — and this is the issue raised by the motorist in this appeal — is the O ’Connell warning sufficient to allay the motorist’s confusion so as to permit the suspension of the motorist’s operating privileges upon his refusal to submit to chemical testing when that confusion came about because of the actions of the police officer in voluntarily permitting the motorist to attempt to contact his lawyer, even though the motorist has no right to do so. We are satisfied that the O’Connell warning is adequate under these circumstances and, therefore, the motorist’s appeal was denied.

There are different ways in which the need for the police officer to give the O’Connell warning (that is, to advise the motorist that the motorist does not have the right to speak to an attorney prior to deciding whether or not to submit to chemical testing) can be triggered. Giving Miranda warnings to the motorist is one; having the motorist requesting to speak to an attorney, or to speak to anyone, is another; being given the opportunity to attempt to contact an attorney is but yet another such event. Indeed, although we think that Justice Papadakos overstates the case when he says that such warnings are required in all cases, PennDOT v. Ingram, supra, 648 A.2d at 295 (Papadakos, J., concurring and dissenting), we have no doubt but that the requirement that O’Connell warnings be given will be found to be present in an increasingly wide variety of circumstances but that is at least in part because the manner in which the requirement that the warnings be given [389]*389can be satisfied has been definitively established. Id. And, as we noted above, the warning was given in this case not only by reading to the motorist from DL-26 but also in several other ways on several different occasions.

The motorist in this case does not seriously contest the fact that the O’Connell warning was given. The motorist contends that the warning is insufficient when the confusion is caused by permitting the motorist the opportunity to attempt to contact his lawyer and he is unable to do so and the motorist remains confused in fact. We reject this argument. The motorist did not have the right to speak to an attorney before submitting to the chemical testing. The motorist was clearly advised that he did not have the right to consult with an attorney or anyone else before submitting to the testing. The fact that the police officer voluntarily granted the motorist the opportunity to attempt to speak to his lawyer, even though the officer had no obligation to permit the motorist to do so, does not enlarge the rights of the motorist. So long as the motorist was clearly advised that he did not have the right to speak to an attorney prior to submitting to the chemical testing — and he was — the fact that he was permitted the opportunity to attempt to contact his attorney does not permit him to validly refuse to submit to the chemical testing when he is in fact unable to contact his attorney.

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648 A.2d 285 (Supreme Court of Pennsylvania, 1994)
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Cite This Page — Counsel Stack

Bluebook (online)
22 Pa. D. & C.4th 385, 1995 Pa. Dist. & Cnty. Dec. LEXIS 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-penndot-pactcomplcheste-1995.