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

646 A.2d 729, 166 Pa. Commw. 543, 1994 Pa. Commw. LEXIS 463

• Court: Commonwealth Court of Pennsylvania
• Decided: August 10, 1994
• Docket: No. 1062 C.D. 1993
• Status: Published

Opinions

CRAIG, President Judge.

The licensee, Betty Renwick, appeals from a decision of the Court of Common Pleas of Butler County which dismissed her appeal from a one-year suspension of her operating privileges imposed by the Department of Transportation, Bureau of Driver Licensing, pursuant to section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1).

In a notice dated September 30, 1992, the department notified the licensee that her operating privileges would be suspended for one year pursuant to 75 Pa.C.S. § 1547(b)(1) as a result of her refusal to submit to chemical testing on September 3, 1992. The licensee appealed to the Court of Common Pleas of Butler County which conducted a de novo hearing on April 6, 1993,

At the hearing, the department presented the testimony of Officer Ray Kriebel. Officer Kriebel testified that, on September 2, 1992, at approximately 11:16 p.m., he investigated an accident involving a car which had struck the rear of a tractor trailer. The officer approached the driver of the ear, the licensee, and noticed that she had bloodshot, watery eyes and a strong odor of alcohol on her breath. The licensee admitted that she had consumed a few drinks. The officer also observed that the licensee had a cut on her chin as a result of the collision. The licensee informed the officer that she had no other injuries. An ambulance crew arrived at the accident site, treated the licensee for her injuries, and transported her to a hospital.

Officer Thomas Palla also testified at the hearing. He stated that he went to the hospital and informed the licensee of the implied consent law.¹ He described his encounter with the licensee as follows:

As I said, I had gone to the station and I had gotten the implied consent form and I took [it] to the hospital. And the head nurse showed me which room Miss Ren-wiek was placed in and I went in and told her who I was and why I was there, that I had to read to her the implied consent form because we wanted to draw blood to determine her BAC. She looked at me. She said nothing and I went ahead and I read the form to her. And as she did with Officer Kriebel, she did the same to me. When I got down to where I needed her to sign the form, she simply said nothing and just turned her head. I asked her twice, you know, if she would sign the form and there was no response from her. (Emphasis added.)

Thereafter, Officer Kriebel arrived at the hospital. Officer Kriebel stated that he also read the implied consent form to the licensed and requested her to submit to a blood test to determine her alcohol content. Officer Kriebel stated that the licensee closed her eyes and turned her face away from the officer. Officer Kriebel asked the licensee if she understood what he had told her. The licensee did not respond. Thereafter, Officer Kriebel asked the licensee for her age, phone number, social security number and date of birth. The licensee answered each question without hesitation. Again, Officer Kriebel asked her if she would consent to the blood test. She did not respond.

Officer Kriebel informed the licensee that her silence would be considered a refusal to submit to the blood test, resulting in the suspension of her license for twelve months. The licensee stated that she would submit to the blood test. Thereafter, Officer Kriebel placed a clipboard with the implied consent form attached to it in front of the licensee and requested her to read the form and sign it. The licensee stated that she could not lift her arm to sign the form. The officer advised the licensee that, if she did not sign the consent form, he would consider her action a refusal to submit to the blood test. The licensee did not sign the form and Officer Kriebel informed her that such action constituted a refusal to submit to the blood test.

Thereafter, Officer Kriebel observed the licensee sign a hospital treatment form presented by a nurse. The licensee took the pen with her right hand and, while holding a clipboard on which the treatment form had been placed, signed the form.

In an order dated April 6, 1993, the court dismissed the licensee’s appeal from the department’s September 30, 1992 suspension order, and this appeal followed.

The issue in this case is whether the licensee’s refusal to sign the implied consent form after agreeing to take the blood test constitutes a refusal.

In Wheatley v. Department of Transportation, 104 Pa.Commonwealth Ct. 171, 175, 521 A.2d 507, 509 (1987), this court stated that “a refusal to sign an ‘implied consent form’ is not a refusal to submit to a breathalyzer test for purposes of Section 1547(b) of the Code.” The court in that case cited Sickman v. Commonwealth, 79 Pa.Commonwealth Ct. 173, 175, 468 A.2d 909, 910 (1983), which held:

Section 1547 of the Code requires only that a driver submit to a chemical test of his breath, blood, or urine. There is no additional requirement that the driver complete a questionnaire or a performance test, and the refusal to do so will not support a suspension under Section 1547(b) of the Code....

Similarly, in this case we conclude that the refusal to submit to a procedure which contains requirements in addition to that of the actual breathalyzer test is not a refusal to take such a test for purposes of this section.

More recently, in Conrad v. Department of Transportation, 142 Pa.Commonwealth Ct. 642, 655, 598 A.2d 336, 343 (1991), this court stated:

We believe that the critical issue in refusal cases involving pre-test procedures is whether the procedure presented is imper-missibly linked to testing. Because § 1547 literally requires only that a motorist submit to chemical testing, and the sanction of license suspension applies only to a refusal of such testing, we hold that a suspension under § 1547 may not be supported by a licensee’s refusal to satisfy any condition not explicitly required by § 1547.

In this case, the fact that the licensee refused to sign the implied consent form because of injuries but later signed the hospital consent form is irrelevant.² As previously stated, 75 Pa.C.S. § 1547 does not require a licensee to sign an implied consent form in addition to consenting to the test. In this case, even though the licensee had orally agreed to submit to the blood test, the officers improperly linked the signing of the form with the matter of actual consent to the test.

Accordingly, the decision of the trial court is reversed.

ORDER

NOW, August 10, 1994, the order of the Court of Common Pleas of Butler County, at Miscellaneous Docket No. 92-258, dated April 6, 1993, is reversed.

1 .Officer Palla and Officer Kriebel read the following implied consent form to the licensee, which provides in pertinent part:

1. Please be advised that you are now under arrest for driving under the influence of alcohol or a controlled substance, pursuant to Section 3731 of the Commonwealth of Pennsylvania Vehicle Code.

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

3. It is my duty, as a police officer, to inform you that your operating privileges will be suspended for a period of one year, if you refuse to submit to this chemical test.

4. I must also inform you that your constitutional rights, when accused of a crime, do not apply to the chemical test. Consequently, you do not have a right to consult with an attorney, or anyone else present, while you take the chemical test. In addition, your constitutional right when accused of a crime, to remain silent, does not entitle you to refuse to submit to the test_ The constitutional right, ... to remain silent does not apply to the chemical test because it only entitles you to avoid making incriminating verbal statements. A blood sample does not constitute a verbal statement. 5.Will you submit to the blood test? I,_, having had the above statement read. to me and having received a copy of same, do hereby give permission for the above chemical tests and analyses to be administered to me.

2 . Department of Transportation, Bureau of Driver Licensing v. Miller, 155 Pa.Commonwealth Ct. 564, 625 A.2d 755 (1993), is distinguishable. In Miller, the licensee was willing to consent to a blood test, but conditioned his assent upon modification of the hospital consent form with respect to hospital liability and other matters. Specifically, the licensee demanded that the hospital affirmatively assume liability.