IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Siamion Kremer, :
Appellant :
:
v. : No. 518 C.D. 2015
: Submitted: November 25, 2015
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: February 3, 2016
Appellant Siamion Kremer (Licensee) appeals from an order of the
Court of Common Pleas of Bucks County (trial court). The trial court denied
Licensee’s statutory appeal of the one-year suspension of his operating privileges
by the Pennsylvania Department of Transportation, Bureau of Driver Licensing
(DOT). DOT issued a notice suspending Licensee’s operating privileges under
Section 1547(b)(1)(i) of the Vehicle Code (Code),2 based upon his refusal to
submit to chemical testing. We now affirm.
1
This case was assigned to the opinion writer on or before January 31, 2016 when Judge
Leadbetter assumed the status of senior judge.
2
75 Pa. C.S. § 1547(b)(1)(i). Section 1547(b)(1)(i) of the Code provides that if any
person who is arrested for driving under the influence of alcohol “is requested to submit to
chemical testing and refuses to do so . . . [DOT] shall suspend the operating privilege of the
(Footnote continued on next page…)
On November 17, 2013, Lower Southampton Police Officer Joseph
Zaffino arrested Licensee and charged him with driving under the influence of
alcohol (DUI). On December 12, 2013, DOT sent a notice of suspension to
Licensee, informing him that his driving privileges were suspended for a one-year
period as a result of his refusal to submit to chemical testing following his DUI
arrest. Licensee filed a statutory appeal of the suspension notice, and the trial court
conducted a hearing on November 7, 2014.
During the hearing, DOT presented the testimony of Officer Zaffino.
Officer Zaffino testified that he was on patrol when he observed a vehicle in front
of him that was “slowing down and speeding up.” (Reproduced Record (R.R.) at
11.5) Officer Zaffino continued to follow the vehicle, which began to swerve
within its own lane. (Id.) Ultimately, the vehicle “swerved from the curb lane into
the passing lane, and then came back from the passing lane all the way across the
curb lane and drove up onto the curb.” (Id.) The vehicle’s tires were destroyed by
the accident, and Officer Zaffino activated his lights and pulled over behind the
vehicle. (Id. at 11.6.) Officer Zaffino approached the vehicle and could smell
alcohol. (Id.) Licensee, the driver, had glassy eyes. (Id.) Officer Zaffino
explained that while speaking with Licensee, he noticed that “there was a bit of a
language barrier, but [Licensee] was able to answer the questions that I had.” (Id.)
Officer Zaffino asked Licensee to exit the vehicle and explained to Licensee that
he wanted him to perform field sobriety tests. (Id.) Licensee’s wife informed
(continued…)
person . . . for a period of 12 months.” This provision is commonly known as the “Implied
Consent Law.”
2
Officer Zaffino that English was not Licensee’s first language and that she would
be able to translate the field sobriety tests for Licensee. (Id. at 11.7.) Officer
Zaffino explained Licensee’s wife appeared to “speak English better than
[Licensee] did.” (Id. 11.14.) After Officer Zaffino began to explain the first field
sobriety test to Licensee’s wife, Licensee said, “I understand English, you can just
tell me.” (Id. at 11.7.) Licensee ultimately failed the field sobriety tests, and
Officer Zaffino administered a portable breath test, which demonstrated the
presence of alcohol. (Id.)
After Licensee failed the tests, Officer Zaffino placed him under arrest
for DUI. (Id.) In Officer Zaffino’s vehicle, Officer Zaffino asked Licensee if he
would “want to go to the hospital to give blood.” (Id. at 11.8.) Licensee agreed to
submit to the blood test, and Officer Zaffino transported him to St. Mary’s
Hospital. (Id.) At the hospital, Licensee was placed in a holding cell with a
“language line.”3 (Id. at 11.8-11.9.) Officer Zaffino read the chemical test
warning form (DL-26 form) in English, which Licensee was able to hear. (Id.)
After Officer Zaffino read the DL-26 form, an interpreter translated the warnings
into Russian via the language line. (Id. at 11.8.) Officer Zaffino explained that
“[a]fter the translator read the DL-26 form verbatim, [Licensee] refused to give a
blood sample.” (Id.) Officer Zaffino could not recall exactly what Licensee said
in refusing the test, but indicated that Licensee responded through the language
line, and the interpreter responded to Officer Zaffino. (Id.) Officer Zaffino and
Licensee both signed the DL-26 form. (Id. at 4.5, 11.11.)
3
Officer Zaffino described a language line as “a neutral language interpreter line that is
used by the hospital.” (R.R. at 11.18.)
3
Licensee also testified at the hearing before the trial court. Licensee
explained that during the arrest, Licensee’s wife acted as an interpreter. (Id. at
11.20.) Licensee understood some of the words that Officer Zaffino was saying,
and, with the help of his wife, Licensee understood that he was being investigated
for DUI. (Id.) After his arrest, Officer Zaffino asked Licensee for a blood sample,
and Licensee agreed to go to the hospital. (Id.) Licensee remembered using the
language line after arriving at the hospital. (Id. at 11.21.) Licensee described the
translation of the DL-26 form as “unprofessional” and “kind of not coherent.” (Id.)
He tried to ask the interpreter questions, because he did not understand what a
“chemical test” was, but he could not understand the interpreter’s explanation.
(Id. at 11.22.) Licensee did not inform Officer Zaffino that he could not
understand. (Id.)
The trial court issued an order on November 7, 2014, denying
Licensee’s appeal and reinstating the suspension of his operating privileges.
(Id. at 5.1.) Licensee filed a notice of appeal, and the trial court issued an order
directing Licensee to file a statement of errors complained of on appeal. Licensee
filed the statement, and the trial court issued an opinion explaining its decision. In
so doing, the trial court cited the testimony of Officer Zaffino. The trial court
explained that Licensee was provided with an interpreter and that Licensee’s
testimony that he did not understand the interpreter was not credible, because
Licensee failed to inform Officer Zaffino that he did not understand. The trial
court also noted that Licensee’s “refusal to submit to chemical testing is
memorialized in the DL-26 . . . form signed by Officer Zaffino and Licensee.”
(Trial Ct. Op. at 3.)
4
On appeal to this Court,4 Licensee first argues that substantial
evidence does not support the trial court’s finding that Licensee refused to submit
to chemical testing. Alternatively, Licensee contends that, even if he did refuse
chemical testing, his refusal was not knowing and conscious, and, therefore, his
refusal is insufficient to sustain the suspension of his operating privileges.
We first address Licensee’s argument that substantial evidence does
not support the trial court’s finding that Licensee refused to submit to chemical
testing.5 In order to suspend a licensee’s driving privileges for refusing to submit
to chemical testing, DOT must establish the existence of the following elements:
(1) the police arrested the licensee based upon reasonable grounds to believe that
the licensee was operating a motor vehicle while under the influence of alcohol;
(2) the police asked the licensee to submit to a chemical test; (3) the licensee
refused to submit to testing; and (4) the police warned the licensee that refusing to
submit to testing would result in license suspension. Bomba v. Dep’t of Transp.,
Bureau of Driver Licensing, 28 A.3d 946, 949 (Pa. Cmwlth. 2011). “The question
of whether a licensee refuses to submit to a chemical test is a legal one, based on
the facts found by the trial court.” Sitoski v. Dep’t of Transp., Bureau of Driver
Licensing, 11 A.3d 12, 19 (Pa. Cmwlth. 2010). It is well-established “that
4
This Court’s review of an order of a trial court denying a licensee’s statutory appeal
from a license suspension by DOT is limited to considering whether the trial court’s factual
findings are supported by competent evidence, and whether the trial court erred as a matter of
law or demonstrated a manifest abuse of discretion. McCloskey v. Dep’t of Transp., Bureau of
Driver Licensing, 722 A.2d 1159, 1161 (Pa. Cmwlth.), appeal denied, 740 A.2d 235 (Pa. 1999).
5
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Miller v. Dep’t of Transp., Bureau of Driver Licensing,
745 A.2d 111, 116 (Pa. Cmwlth. 2000).
5
anything less than an unqualified, unequivocal assent constitutes a refusal.” Dep’t
of Transp. v. Renwick, 669 A.2d 934, 939 (Pa. 1996).
Licensee takes issue with the trial court’s reliance on Officer Zaffino’s
testimony and argues that the officer’s testimony was insufficient to prove that
Licensee refused chemical testing. During the hearing before the trial court,
Officer Zaffino testified:
A. . . . After the translator read the DL-26 form
verbatim, he refused to give a blood sample.
Q. You said he refused. How did he refuse to give a
sample?
A. I don’t remember exactly. He either said -- I would
imagine him saying no or, you know, I asked, can you
repeat it, and he would have said yes.
Q. But he responded to you? . . .
A. He responded through the language line and the
language line responds to me.
(R.R. at 11.8.) Licensee contends that Officer Zaffino’s testimony is equivocal
and, therefore, does not constitute substantial evidence to support the finding that
Licensee refused chemical testing.
Equivocal testimony is that which is vague and leaves doubt as to its
meaning. Chadwick v. Workmen’s Comp. Appeal Bd. (Benjamin Franklin Hotel),
573 A.2d 652, 655-56 (Pa. Cmwlth.), appeal denied, 589 A.2d 694 (Pa. 1990).
While Officer Zaffino’s testimony as to what Licensee said exactly in refusing
chemical testing may be equivocal, this does not affect the substance of
Officer Zaffino’s testimony—namely, that Licensee, through the interpreter,
verbally refused to submit to chemical testing. Such testimony constitutes
substantial evidence to support the trial court’s finding that Licensee refused
chemical testing, as it demonstrates that the Licensee did not offer unqualified,
6
unequivocal consent. Although Officer Zaffino’s failure to recall the exact
conversation that took place could have affected the weight to be given to his
testimony, this Court does not reweigh evidence. Hasson v. Dep’t of Transp.,
Bureau of Driver Licensing, 866 A.2d 1181, 1186 (Pa. Cmwlth. 2005)
(“Determinations as to . . . the weight assigned to the evidence are solely within the
province of the factfinder.”). Because Officer Zaffino’s testimony was sufficient
to support the finding that Licensee refused to submit to chemical testing, we reject
Licensee’s argument.
We next address Licensee’s argument that his refusal to submit to
chemical testing was not knowing and conscious. Specifically, Licensee contends
that “[t]he interpreter was not available for cross examination [which] should have
put a doubt in [the trial court]’s mind as to whether [Licensee]’s refusal was
conscious and knowing.” (Licensee Br. at 16.) Licensee maintains that because an
interpreter’s services were used, the interpreter should have been required to testify
at the hearing before the trial court. In support of this contention, Licensee cites an
unreported decision of this Court, Godoy-Romero v. Department of
Transportation, Bureau of Driver Licensing, (Pa. Cmwlth., No. 1173 C.D. 2012,
filed Jan. 22, 2013).6 In Godoy-Romero, a licensee was arrested and taken to a
hospital for chemical testing. At the hospital, the licensee informed the arresting
officer that he did not understand English, and the officer utilized the services of an
interpreter to communicate the implied consent warnings to the licensee. After the
warnings were translated to the licensee, the interpreter stated, “No blood work.
6
Pursuant to Section 414 of the Commonwealth Court's Internal Operating Procedures,
“[p]arties may . . . cite an unreported panel decision of this court issued after January 15, 2008,
for its persuasive value, but not as binding precedent.”
7
Just ticket.” Godoy-Romero, slip op. at 1. DOT suspended the licensee’s
operating privileges based on the licensee’s refusal to submit to chemical testing,
and the licensee appealed to the common pleas court. The common pleas court
sustained the licensee’s appeal and found that the officer’s testimony regarding the
licensee’s refusal was not credible, because the officer “based his determination of
the refusal on statements made by the interpreter who was not available for
cross-examination.” Id., slip op. at 2. DOT appealed to this Court, which affirmed
the common pleas court’s order. In so doing, we explained that the only evidence
supporting the licensee’s refusal—the officer’s testimony—was determined by the
common pleas court to be not credible. Because DOT failed to sustain its initial
burden to show that the licensee refused chemical testing, the burden never shifted
to the licensee to prove that his refusal was conscious and knowing.
The instant matter is distinguishable from Godoy-Romero. Here, the
trial court found that Officer Zaffino’s testimony was credible, despite the fact that
the interpreter did not appear at the hearing before the trial court. Godoy-Romero
does not stand for the proposition that when a police officer engages the services of
an interpreter, the interpreter must appear at the hearing before the trial court.7
7
We note that it is “not the officer’s duty to enlist the assistance of an interpreter to make
sure a motorist understands implied consent warnings.” Martinovic v. Dep’t of Transp., Bureau
of Driver Licensing, 881 A.2d 30, 35 (Pa. Cmwlth. 2005); see also Commonwealth v. Robinson,
834 A.2d 1160, 1164 (Pa. Super. 2003) (“Requiring certified interpreters for every driver who
may have difficulty understanding a police officer . . . due to a . . . language barrier . . . is not
only not required by the [I]mplied [C]onsent [L]aw, it is simply not feasible, particularly in the
case of DUI investigations where temporal concerns are paramount.”), appeal denied, 849 A.2d
241 (Pa. 2004). Rather, “[a]n officer’s sole duty is to inform motorists of the implied consent
warnings; once they have done so, they have satisfied their obligation.” Martinovic, 881 A.2d at
35 (emphasis in original).
8
Rather, the common pleas court in Godoy-Romero found the officer’s testimony to
be not credible due to the interpreter’s absence, and that testimony was the only
evidence supporting the licensee’s refusal. As noted above, there was no such
determination in the instant matter. Licensee essentially asks us to make our own
determinations as to the credibility of the witnesses, which, under our standard of
review, we are unable to do. “Determinations as to the credibility of witnesses and
the weight assigned to the evidence are solely within the province of the trial court
as fact-finder.” Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 954
A.2d 761, 765 (Pa. Cmwlth. 2008). We, therefore, reject Licensee’s argument that
his refusal to submit to chemical testing was not knowing and conscious, because
the interpreter did not testify at the hearing before the trial court.
To the extent that Licensee argues that he was unable to make a
knowing and conscious refusal, because he did not understand the implied consent
warnings or the meaning of “chemical test” due to the “unprofessional”
interpretation, we reject Licensee’s argument. The licensee bears the burden “to
establish that []he was not capable of making a conscious and knowing refusal to
submit to chemical testing.” Lanthier v. Dep’t of Transp., Bureau of Driver
Licensing, 22 A.3d 346, 348-49 (Pa. Cmwlth. 2011). “Whether a licensee satisfies
the burden of showing an inability to make a knowing and conscious refusal of
testing is a factual determination for the trial court to decide.” Gombar v. Dep’t of
Transp., Bureau of Driver Licensing, 678 A.2d 843, 847 (Pa. Cmwlth. 1996).
“Such a determination must be affirmed on appeal if supported by competent
evidence in the record.” Lanthier, 22 A.3d at 352.
Here, the trial court specifically determined that Licensee’s testimony
concerning his understanding of the warnings and translation was not credible,
9
because “Licensee also admitted that he made no attempt to communicate his
alleged lack of understanding to the officer.” (Trial Ct. Op. at 3.) As noted above,
we will not reevaluate the trial court’s credibility determinations on appeal. At the
hearing before the trial court, Officer Zaffino testified that although Licensee
seemingly did not speak English as well as his wife, Licensee was able to complete
the field sobriety tests when Officer Zaffino explained them in English. (R.R. at
11.7, 11.14.) On the way to the hospital, Officer Zaffino asked Licensee in English
if he would consent to a blood test, and Licensee consented to the test without the
need for an interpreter. (Id. at 11.7-11.8, 11.15-11.16.) Licensee heard the implied
consent warnings in English, and the interpreter also translated the warnings for
Licensee. (Id. at 11.8.) Licensee did not attempt to inform Officer Zaffino that he
did not understand the warnings or the chemical test. (Id. at 11.22.) This
testimony constitutes substantial evidence to support the trial court’s determination
that Licensee was capable of making a knowing and conscious refusal. We,
therefore, reject Licensee’s argument that he was unable to make a knowing and
conscious refusal, because he did not understand the implied consent warnings and
chemical test.
Accordingly, we affirm the trial court’s order.
P. KEVIN BROBSON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Siamion Kremer, :
Appellant :
:
v. : No. 518 C.D. 2015
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 3rd day of February, 2016, the order of the Court of
Common Pleas of Bucks County is hereby AFFIRMED.
P. KEVIN BROBSON, Judge