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

685 A.2d 607, 1996 Pa. Commw. LEXIS 465

Opinions

NARICK, Senior Judge.

Wayne S. Ponce (Ponce) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) that dismissed his appeal from a one-year suspension of his operating privileges imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) for his failure to submit to chemical testing pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547 (Implied Consent Law). We affirm.

The facts of this case, as found by the trial court, are as follows:

On 1 October 1994, Officer Patrick Retort of the East Deer Township Police Department was called to the scene of a single vehicle accident where he discovered the operator of the vehicle, [Ponce]. [Ponce] exhibited a staggered gait, glassy eyes, and slurred speech and an alcoholic odor emanated from his person (H.T.2-3.)[¹]

Field sobriety tests were performed and, in the opinion of the officer failed by [Ponce] (H.T.4.)

En scene, Officer Retort advised [Ponce] of the implied consent law and requested chemical testing. [Ponce] verbally refused this request (H.T.6.)

As a result, [DOT] suspended his motor vehicle operator’s privileges for a one-year period by notice dated 21 October 1994, effective 25 November 1994.

At trial testimony concerning the accident was elicited from [Ponce] and Officer Retort. Both testified to the seriousness of the accident and the severity of the injuries sustained by [Ponce]. While medical personnel were summoned to the scene, [Ponce] rejected their assistance and did not, in point of fact, seek medical treatment until the following day (H.T.20). Our examination of the record including all admissible medical evidence demonstrated that while [Ponce] was injured there was no nexus between those injuries and his ability to comprehend the recital of the implied consent law and the request for testing. The officer’s credible testimony showed that the arrest itself was well-founded upon typical indicia of intoxication and we believe that [Ponce] made a knowing and conscious refusal of the request.

Trial Court Opinion, pp. 1-2. Based on these findings, the trial court dismissed Ponce’s appeal of the one-year suspension of his operating privileges.

On appeal to this court,² Ponce claims: (1) the trial court erred in dismissing his appeal because the suspension violates the Double Jeopardy Clause of the United States Constitution; and (2) the trial court erred in holding that Ponce made a knowing and conscious refusal to Officer Retort’s request that he submit to chemical testing.

At the hearing de novo before the trial court, Ponce argued that the imposition of the suspension violated the Double Jeopardy Clause of the United States Constitution as he had previously been tried for, and acquit ted of, the offense of driving while under the influence of alcohol, 75 Pa.C.S. § 8731, which arose out of the same incident underlying his license suspension.³

Here, Ponce again claims that the one-year suspension of his operating privileges is precluded by the Double Jeopardy Clause of the United States Constitution ⁴ as it constitutes a second attempt by the Commonwealth to punish him for the offense of driving while under the influence of alcohol. However, the Double Jeopardy Clause does not preclude the imposition of a civil penalty for conduct for which a criminal conviction has already been obtained. Sweeny v. State Board of Funeral Directors, 666 A.2d 1137 (Pa.Cmwlth.1995). In addition, as a general rule, the Double Jeopardy Clause does not apply to civil proceedings, such as those before administrative agencies, which result in civil penalties. Id.

Here, Ponce’s driving privileges were suspended pursuant to the Implied Consent Law which provides, in pertinent part:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance

(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:

(1) while under the influence of alcohol or a controlled substance or both; or

(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

(b) Suspension for refusal.—

(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.

As it has been previously noted, the mandatory suspension of a licensee’s operating privileges following a conviction for driving under the influence of alcohol is a remedial sanction that is civil in nature. Commonwealth v. Wolf, 534 Pa. 283, 632 A.2d 864 (1993); Zanotto v. Department of Transportation, 83 Pa.Cmwlth. 69, 475 A.2d 1375 (1984). The suspension of a licensee’s operating privileges under these circumstances serves not so much as punishment, but rather serves the remedial goal of protecting the public against the licensee’s unsafe driving habits. Wolf Because the suspension following a conviction for driving under the influence of alcohol serves this remedial goal, it does not constitute punishment for purposes of a double jeopardy analysis.

Ponce also argues that his physical injuries prevented him from making a knowing conscious refusal to submit to chemical testing. Where a licensee has filed a statutory appeal from a one-year suspension imposed by DOT in compliance with the mandate set forth in 75 Pa.C.S. § 1547(b)(1), as a consequence of a reported chemical test refusal, DOT bears the initial burden of proof that at the statutory appeal hearing. In order to satisfy that burden and establish a prima facie case, DOT must present evidence showing that: (1) the licensee was arrested for a violation of 75 Pa.C.S. § 3731; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned of the consequences of. refusing the chemical test, i.e., the suspension of the licensee’s operating privilege. Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994).

Once DOT has made out its prima facie case, as it did here, the burden then shifts to the licensee to establish that refusal was not knowing and conscious or that the licensee was physically incapable of successfully performing the requested chemical test. Id. The specific issue of whether a licensee’s refusal of a chemical test was knowing and conscious is one of fact for determination by the trial court and must be supported by substantial evidence. Department of Transportation, Bureau of Driver Licensing v. Grass, 141 Pa.Cmwlth. 455, 595 A.2d 789 (1991). Here, Officer Retort testified that he did not notice that Ponce was injured other than a possible scrape on his arm. While Officer Retort summoned an ambulance to the accident scene, Ponce refused treatment and was not seen until the following day at Allegheny Valley Hospital. The hospital records indicated that Ponce experienced no loss of consciousness at the time of the accident as he “felt fine.” (72a.)

Three days later Ponce saw Dr. Choudhry for injuries that required the wearing of a neck collar. Although Ponce argues that he had suffered a “broken neck,” Dr. Choudhry stated that there was only a fracture of the spinus process of the fifth cervical vertebrae, C-5, requiring no treatment except the neck collar. Dr. Choudhry never testified that, in his opinion, Ponce was incapable of making a knowing and conscious refusal because he could not render such opinion because he did not see Ponce until days later. Because Ponce had the burden of proof after DOT made out its prima facie case, the trial court’s finding that Ponce made a knowing and conscious refusal based on Officer Retort’s testimony is supported by substantial evidence. Therefore, we hold that the trial court did not err in dismissing Ponce’s appeal from the revocation of his operating privileges.

Accordingly, we affirm.

ORDER

NOW, this 12th day of November, 1996, the order of the Court of Common Pleas of Allegheny County, is hereby affirmed.

Footnotes

1

. "H.T.” refers to the notes of testimony from licensee's appeal de novo of DOT’S license suspension conducted before the trial court on October 25, 1995.

2

. In an appeal arising from the suspension of a licensee’s operating privileges, our scope of review is limited to determining whether the trial court’s findings are supported by substantial evidence or whether the trial court erred as a matter of law or manifestly abused its discretion. Department of Transportation, Bureau of Driver Licensing v. Garlan, 121 Pa.Cmwlth. 400, 550 A.2d 873 (1988), petition for allowance of appeal denied, 522 Pa. 614, 563 A.2d 499 (1989).

3

. For purposes of argument of the Double Jeopardy claim, the Commonwealth stipulated that Ponce had been found not guilty of driving while under the influence at criminal proceedings which preceded the civil hearing.

4

. The Double Jeopardy Clause of the United States Constitution provides, in pertinent part, ”[n]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S.. Const. Amend. V.