Jerry Feathers (licensee) appeals from an order of the Court of Common Pleas of Schuylkill County (trial court) which upheld the one-year suspension of his driving privileges imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) for refusal to submit to chemical testing pursuant to section 1547 of the Vehicle Code.1 We reverse.
Licensee was involved in an automobile accident to which Police Officer Henry Woods responded. Licensee was placed under arrest for driving his vehicle while under the influence of alcohol, advised of the implied consent law and agreed to submit to a blood test to determine his blood alcohol content. Licensee was taken to a hospital where two vials of blood were drawn.
En route from the hospital to the police station, Officer Woods observed another accident that had recently occurred and called for assistance. Officer Woods and the arriving officer switched patrol cars, placing licensee and the blood samples in the new car which did not have a “cage” separating the front and back seats. It is alleged that while left unguarded for a short period, licensee removed the lid of the small box containing *1361the vials of blood and pulled the top off one of the vials. In doing so, this caused blood to flow from the vial into the containing bag. The blood then leaked from the bag into the box and ultimately leaked from the box.
Upon arriving at the police station, Officer Woods noticed that tampering had occurred with the vials. Licensee denied any involvement, although he had blood on his hand and handcuffs.2
Without submitting the remaining vial to the lab for analysis, Officer Woods reported this incident as a refusal to submit to chemical testing. Accordingly, DOT notified licensee that his operating privileges were scheduled to be suspended pursuant to section 1547(b)(1). Licensee appealed to the trial court which held a de novo hearing. Relying on this court’s decision in Fitzgerald v. Commonwealth, 137 Pa.Cmwlth. 359, 586 A.2d 483 (1991), petition for allowance of appeal denied, 528 Pa. 614, 596 A.2d 160 (1991), as controlling, the trial court concluded that licensee’s actions constituted a refusal and upheld the suspension. Licensee appeals from the trial court’s order.
Initially, we note that our scope of review when reviewing a driver’s license suspension case is limited to determining whether the trial court’s findings are supported by competent evidence of record, whether an error of law has been committed, or whether the trial court abused its discretion. Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994).
On appeal, the sole issue for our consideration is whether the destruction of one of two vials of licensee’s blood constitutes a refusal to submit to chemical testing under section 1547 of the Vehicle Code.
It is well settled that in order to establish a prima facie case for a license suspension under section 1547(b) of the Vehicle Code, DOT must prove that the licensee (1) was arrested for driving under the influence of alcohol; (2) was asked to submit to a chemical test; (3) was specifically warned that a refusal would result in a license suspension; and (4) refused to do so. Ingram; Department of Transportation, Bureau of Traffic Safety v. O’Connell 521 Pa. 242, 555 A.2d 873 (1989). A refusal to submit to a chemical test need not be expressed in words, but can be implied from a driver’s actions. Department of Transportation, Bureau of Traffic Safety v. Mumma, 79 Pa. Cmwlth. 108, 468 A.2d 891 (1983).
In this case, by stipulation of the parties, there is no dispute that DOT met the first three requirements set forth above.
In support of his appeal, licensee contends that while he tampered with one vial of blood, he did not tamper with the other vial which was available for testing.3 In addition, licensee argues that our decision in Fitzgerald is inapplicable since it involves a destruction of one available sample before testing and is distinguishable in that, in the case at bar, a second sample still existed which had not been opened.
In response, DOT argues that two vials of blood constituted one sample for testing purposes, rendering destruction of only one of the vials of blood a refusal under Fitzgerald. DOT contends that this position is strengthened by the fact that generally two vials of blood are required to allow the blood to be *1362analyzed for blood alcohol purposes. This is supported, DOT argues, by the fact that the standard blood alcohol kits require two vials of blood for testing purposes.4
We considered a licensee’s destruction of his own bodily evidence in Fitzgerald. The motorist in Fitzgerald was arrested for driving under the influence of alcohol and was taken to a hospital where he refused to sign a consent form for a blood test, but instead provided a urine sample. At the police station, the motorist destroyed the urine sample before it could be sent to the county laboratory for a blood-alcohol analysis. The motorist’s operating privileges were suspended for one year for refusing to submit to chemical testing. The motorist appealed and the trial court affirmed.
On appeal to this court, the motorist argued that there was no evidence that he knew his urine sample had yet to be tested when he destroyed it. In affirming the trial court, we held “that the willful destruction of the sample where the testing has not been done even where the motorist is not aware of that fact is substantially less than an unqualified, unequivocal assent” to chemical testing. Fitzgerald, 586 A.2d at 484 (emphasis in original). Accordingly, we concluded that the motorist’s conduct in Fitzgerald constituted a refusal to submit to chemical testing.
A review of the Vehicle Code and accompanying regulations reveals no requirement that two vials of blood are required to allow the blood to be analyzed for blood'alcohol purposes. Further, there is no requirement in the Vehicle Code that if more than one vial is taken that the total of the vials together constitute one sample. The fact that the blood alcohol test kit contains two vials is of no consequence where the Vehicle Code imposes no such requirement. Therefore, we agree with licensee that there still remained one vial of blood available for testing and that the police officer should have attempted to have that vial tested before recording a refusal by licensee to submit to chemical testing.
Since we have determined that one vial of blood remained for testing, we believe that Fitzgerald is clearly not controlling in the present case. In Fitzgerald there was only one urine sample which was totally destroyed. In the present case, there remained, intact, a vial of blood available for testing.5
Accordingly, the order of the trial court is reversed.
ORDER
NOW, this 26th day of September, 1996, the order of the Court of Common Law Pleas of Schuykill County, dated March 25,1994, at No. S-1508-1993, is hereby reversed.
. 75 Pa.C.S. § 1547. Section 1547(b) of the Vehicle Code provides for the suspension of a driver's license for a period of one year upon the refusal to submit to chemical testing to determine blood-alcohol content.
. At the trial court hearing, counsel for licensee admitted that licensee was responsible for tampering with the vial of blood. (Transcript of hearing, p. 6.)
. DOT argues that licensee has waived the testing "theory” because he never argued before the trial court the theory that the police were required to test the remaining blood sample before declaring a refusal. We disagree. A review of the transcript herein reveals that respective counsel for licensee and DOT stipulated that the only issue before the trial court was whether there was a refusal based upon the facts and the application of the law to those facts. The agreed-upon facts in this matter included the fact that one vial of blood was left intact. Obviously, licensee now disagrees with the trial court’s application of the law, specifically Fitzgerald, to the facts. Accordingly, the testing “theory" has not been waived.
. DOT cites Colgan v. Department of Transportation, Bureau of Driver Licensing, 127 Pa.Cmwlth. 479, 561 A.2d 1341 (1989) to support its assertion that two vials of blood are required to allow the blood to be analyzed for blood alcohol purposes. However, the citation of Colgan for this proposition is misleading. While Colgan does recite the trial court’s finding that defendant was told two vials were required, Colgan certainly does not stand for the proposition that two vials are required or that two vials constitute one sample.
. This court recognizes the criminal implications of tampering with evidence. However, it is undisputed that a one-year suspension for refusing to submit to chemical testing is a civil penalty; therefore, whether the chemical test results of the remaining vial of blood could be used as evidence in any criminal proceeding is beyond this court's jurisdiction.