IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas Matthew Jack :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, : No. 1358 C.D. 2021
Appellant : Submitted: July 15, 2022
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: October 20, 2022
The Pennsylvania Department of Transportation, Bureau of Driver
Licensing (DOT) appeals from the November 4, 2021 order of the Court of Common
Pleas of Allegheny County (trial court) sustaining Nicholas Matthew Jack’s
(Licensee) statutory appeals from a 12-month driver’s license suspension and a 12-
month commercial driving privilege disqualification1 imposed by DOT, pursuant to
the Vehicle Code’s Implied Consent Law, 75 Pa. C.S. § 1547(b) (Implied Consent
Law), as a result of Licensee’s refusal to submit to chemical testing upon his arrest
1
75 Pa. C.S. § 1613 (relating to implied consent requirements for commercial motor
vehicle drivers).
for driving under the influence of alcohol or a controlled substance2 (DUI). Upon
review, we reverse.
At around 11:30 p.m. on the night of April 6, 2021, Plum Borough
Police Department Officer Eric Brant3 was dispatched to the scene of a reported
vehicle accident in the parking lot of the S&T Bank in Plum Borough, Pennsylvania.
See Notes of Testimony November 4, 2021 (N.T.) at 5-6; Reproduced Record (R.R.)
at 25a-26a. Upon arriving, Officer Brant observed that a vehicle had collided with
a tree in the bank’s landscaping, and that another officer already on the scene, Officer
Rupert, had placed Licensee, the driver of the vehicle, in handcuffs. See N.T. at 7-
8; R.R. at 27a-28a. In addition to Licensee and the other officer, a tow truck driver
was also on the scene upon Officer Brant’s arrival. See N.T. at 8; R.R. at 28a.
Officer Brant aided Officer Rupert in helping Licensee up and escorting him back
to Officer Brant’s patrol vehicle. See N.T. at 8; R.R. at 28a. Officer Brant observed
that Licensee’s eyes were glassy and bloodshot, that Licensee needed to be
supported because he was having trouble walking, and that Licensee displayed
“goose eggs” on his head, which Officer Brant attributed to the accident. See N.T.
at 14-15; R.R. at 34a-35a. An EMT administered aid to Licensee and his passenger.
See N.T. at 10; R.R. at 30a. Licensee was then informed he was under arrest,
removed from the patrol vehicle, and taken to the hospital by ambulance.4 See N.T.
at 11; R.R. at 31a.
2
75 Pa. C.S. § 3802.
3
Officer Brant had been with the Plum Borough Police Department for approximately two
years. Notes of Testimony November 4, 2021 (N.T.) at 5; Reproduced Record (R.R.) at 25a.
4
Officer Rupert accompanied Licensee in the ambulance to the hospital. See N.T. at 13;
R.R. at 33a.
2
After interviewing witnesses at the accident scene, Officer Brant
proceeded to the hospital, where he found Licensee already in the emergency room.
See N.T. at 12 & 14; R.R. at 32a & 34a. Officer Brant then read to Licensee the four
blood testing warnings contained in DOT’s DL-26B consent to blood test form5
verbatim and in their entirety. See N.T. at 15-16 & 27; R.R. at 35a-36a & 47a. After
reading the warnings, Officer Brant informed Licensee that he needed to provide a
“yes” or “no” response to the question of whether he would submit to the chemical
testing/blood draw. See N.T. at 17 & 27; R.R. at 37a & 47a. Instead of providing a
direct “yes” or “no” to the question, Licensee kept repeating questions such as “what
do you want, what do you want me to do.” See N.T. at 17 & 27; R.R. at 37a & 47a.
5
The DL-26B form’s blood testing warnings read as follows:
It is my duty as a police officer to inform you of the following:
1. You are under arrest for driving under the influence of alcohol or
a controlled substance in violation of Section 3802 of the Vehicle
Code.
2. I am requesting that you submit to a chemical test of blood.
3. If you refuse to submit to the blood test, your operating privilege
will be suspended for at least 12 months. If you previously refused
a chemical test or were previously convicted of driving under the
influence, your operating privilege will be suspended for up to 18
months. If your operating privilege is suspended for refusing
chemical testing, you will have to pay a restoration fee of up to
$2,000 in order to have your operating privilege restored.
4. You have no right to speak with an attorney or anyone else before
deciding whether to submit to testing. If you request to speak with
an attorney or anyone else after being provided these warnings or
you remain silent when asked to submit to a blood test, you will have
refused the test.
R.R. at 56a.
3
Officer Brant did not hand the form to Licensee for him to read or review. See N.T.
at 27; R.R. at 47a. Licensee never asked for the warnings to be reread and did not
indicate that he did not understand the warnings or that he required further
explanation. See N.T. at 18; R.R. at 38a. Licensee appeared alert and awake and
never appeared unconscious to Officer Brant. See N.T. at 18-19; R.R. at 38a-39a.
Licensee never told Officer Brant that he would allow a blood sample to be drawn
for chemical testing. See N.T. at 19; R.R. at 39a. After a full minute waiting without
receiving a direct answer, Officer Brant determined that Licensee refused to consent
to the requested blood draw.6 See N.T. at 17-18; R.R. at 37a-38a.
After Officer Brant left the room, hospital personnel entered a short
time later and drew blood from Licensee’s arm without objection from Licensee.
See N.T. at 19-20 & 27-28; R.R. at 39a-40a & 47a-48a. Officer Brant later secured
a search warrant and obtained the results of the blood draw, which results were later
used by the Commonwealth in Licensee’s criminal prosecution for DUI. See N.T.
at 21; R.R. at 41a.
Thereafter, by letters dated May 12, 2021, DOT notified Licensee that,
as a result of his refusal to submit to chemical testing, his driving privilege would be
suspended and his commercial driving privilege disqualified for a period of 12
months. See R.R. at 6a-7a & 12a-15a. Licensee appealed both suspensions to the
trial court.7 See R.R. at 3a-17a. The trial court conducted a hearing and sustained
6
Officer Brant signed the DL-26B form on his own behalf and on the line indicating that
the vehicle operator had refused to sign after being advised of the refusal warnings. See R.R. at
56a.
7
Licensee appealed the driver’s license suspension in the trial court on May 28, 2021. See
R.R. at 9a-17a. Licensee then appealed the commercial driver’s license disqualification on June
1, 2021, in the Westmoreland County Court of Common Pleas. See R.R. at 2a-7a. On September
4
the appeals on November 4, 2021. See R.R. at 21a-57a. DOT timely appealed to
this Court. See R.R. at 58a-61a.
DOT raises three claims on appeal.8 First, DOT claims that the trial
court abused its discretion in sustaining hearsay objections to Officer Brant’s
testimony about what eyewitnesses told him concerning their observations at the
scene of the accident prior to Officer Brant’s arrival. See DOT’s Br. at 4 & 15-20.
Second, DOT argues that the trial court erred by holding that Licensee did not refuse
the request to submit to chemical testing because Licensee sustained head injuries
and was otherwise confused. See id. at 4 & 21-26. Third, DOT claims the trial court
erred by holding that Licensee did not refuse Officer Brant’s request that Licensee
submit to chemical testing because the hospital later obtained a blood sample for
medical purposes, the results of which Officer Brant later obtained by search
warrant. See id. at 4 & 27-29. We address DOT’s second argument first, as it is
dispositive.
Initially, we note:
To sustain a license suspension under [the Implied
Consent Law], DOT has the burden of establishing that (1)
the licensee was arrested for drunken driving by a police
officer having reasonable grounds to believe that the
licensee was driving while under the influence, (2) the
licensee was requested to submit to a chemical test, (3) the
licensee refused to do so and (4) the licensee was warned
that refusal would result in a license suspension. Once
17, 2021, the Westmoreland County Court of Common Pleas ordered the matter transferred to the
trial court, which transfer occurred on September 30, 2021. See R.R. at 19a-20a.
8
“Our standard of review in a license suspension case is to determine whether the factual
findings of the trial court are supported by competent evidence and whether the trial court
committed an error of law or an abuse of discretion.” Negovan v. Dep’t of Transp., Bureau of
Driver Licensing, 172 A.3d 733, 735 n.4 (Pa. Cmwlth. 2017).
5
DOT meets this burden, the burden shifts to the licensee
to establish that he or she either was not capable of making
a knowing and conscious refusal or was physically unable
to take the test.
Giannopoulos v. Dep’t of Transp., Bureau of Driver Licensing, 82 A.3d 1092, 1094
(Pa. Cmwlth. 2013) (quoting Wright v. Dep’t of Transp., Bureau of Driver Licensing,
788 A.2d 443, 445 (Pa. Cmwlth. 2001)). In the instant matter, no dispute exists as
to three of these elements: Licensee was arrested for drunken driving based on
reasonable grounds to believe that he was driving under the influence, Officer Brant
clearly requested that Licensee submit to chemical testing, and, by reading the DL-
26B form, Officer Brant warned Licensee that his refusal to submit to chemical
testing would result in a license suspension. DOT challenges only the trial court’s
conclusion that Licensee did not refuse to submit to the requested chemical testing.
“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.” Nardone v. Dep’t of
Transp., Bureau of Driver Licensing, 130 A.3d 738, 748 (Pa. 2015). Our Supreme
Court has stated that “any response from a licensee that is anything less than an
unqualified, unequivocal assent to submit to testing constitutes a refusal, subjecting
the licensee to the one-year suspension.” Id. (internal quotation marks and citation
omitted); see also Factor v. Dep’t of Transp., Bureau of Driver Licensing, 199 A.3d
492, 497 (Pa. Cmwlth. 2018) (observing that “Pennsylvania courts have long and
consistently held that anything less than an unqualified, unequivocal assent to submit
to chemical testing constitutes a refusal to consent thereto”). “Further, an explicit
refusal is not required to find a licensee refused to consent to chemical testing; a
licensee’s conduct may constitute a refusal.” Factor, 199 A.3d at 497 (internal
quotation marks omitted).
6
Here, Licensee did not provide an unqualified, unequivocal assent to
submit to chemical testing. Officer Brant testified that he did not understand
Licensee’s response of “what do you want, what do you want me to do” to be an
unequivocal assent to the request. Instead, Officer Brant informed Licensee that
Licensee needed to respond with a “yes” or “no” to the request to submit to chemical
testing and, after a minute of waiting without receiving such a response, determined
that Licensee had refused. Officer Brant’s determination comports with the
requirement that a motor vehicle operator provide an unqualified and unequivocal
assent to submit to chemical testing. See Nardone; Factor. The trial court erred in
determining that Licensee did not refuse to submit to chemical testing based on
Officer Brant’s testimony, which the trial court did not find lacked credibility.
Additionally, to the extent the trial court implied that Licensee was
incapable of assenting to chemical testing by virtue of a head injury suffered in the
accident,9 the evidence presented before the trial court does not support such an
inference. As this Court has explained,
a motorist’s self-serving testimony that []he was incapable
of providing a knowing and conscious refusal of a
chemical test is insufficient to meet [his] burden of
proving incapacity. Rather, a licensee’s incapacity
defense must be supported by competent medical evidence
where []he suffers from no obvious disability.
Park v. Dep’t of Transp., Bureau of Driver Licensing, 178 A.3d 274, 281 (Pa.
Cmwlth. 2018) (internal citations omitted); see also Dep’t of Transp., Bureau of
Driver Licensing v. Walsh, 606 A.2d 583, 585 (Pa. Cmwlth. 1992) (holding that
“[w]here a licensee has sustained injuries but does not suffer from an obvious
9
See Trial Court Opinion filed March 28, 2022, at 3-4.
7
inability to comply with the request to be tested, competent medical testimony is
required to prove that a knowing and conscious refusal could not be made”).
Here, Licensee provided no testimony, self-serving or otherwise, that
his mental acuity was somehow reduced by the accident. Further, the trial court
heard no competent medical testimony indicating that Licensee’s cognitive ability
had been reduced as a result of the accident. Instead, the only evidence of Licensee’s
alleged head injury came from Officer Brant’s statement that Licensee appeared to
have “goose eggs” on his head. This statement was unsupported by competent
medical evidence, and in light of Officer Brant’s further testimony that Licensee
appeared alert and awake at all times, it was insufficient to excuse Licensee’s
equivocal response to the request for chemical testing. Accordingly, the trial court
erred to the extent it excused Licensee’s failure to assent to the requested chemical
testing based on a possible head injury.
Further, that the Commonwealth later convicted Licensee of DUI based
on the results of the blood draw conducted by hospital personnel for medical
purposes after Licensee’s refusal of Officer Brant’s request for chemical testing is
of no moment. The fact remains that, while Licensee did submit to chemical testing
for medical purposes, and the Commonwealth ultimately attained the results of that
chemical testing for use in its prosecution of Licensee for DUI, Licensee refused to
provide an unqualified, unequivocal assent to chemical testing upon request of the
police as required by the Implied Consent Law. As this Court has explained, “the
mere fact that a licensee has submitted to blood tests from hospital personnel prior
to or subsequent to his refusal to accede to the request of the arresting officer does
not absolve him from the mandated suspension provisions of Section 1547.” Dep’t
8
of Transp. v. Murdock, 512 A.2d 100, 101 (Pa. Cmwlth. 1986). As we have further
explained,
[t]he Pennsylvania Supreme Court has stated that “driving
is not a property right; rather it is a privilege. To obtain
the benefit of such a privilege, a driver must abide by the
laws of the Commonwealth relating to the privilege.”
Commonwealth v. Zimmick, [] 653 A.2d 1217, 1222-23
([Pa.] 1995).
Where the driver refuses to take a chemical test,
that refusal violates a condition for the continued
privilege of operating a motor vehicle and is
properly considered as a basis for suspension of
that privilege. . . . The only fact necessary to the
administrative determination is the driver’s refusal
to comply with the chemical test request after
being taken into custody.
Dep’t of Transp., Bureau of Driver Licensing v. Wysocki,
[] 535 A.2d 77, 79 ([Pa.] 1987).
Pollock v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 1178
C.D. 2009, filed Jan. 29, 2010),10 slip op. at 4. Thus, the fact that Officer Brant
ultimately secured, after obtaining a search warrant, the results of Licensee’s
chemical testing, which results were later used in the Commonwealth’s criminal
prosecution of Licensee, has no bearing on the civil consequences of Licensee’s
refusal to assent to chemical testing upon request of the police prior to the drawing
of his blood for medical purposes. See Murdock; Pollock.
10
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), unreported panel decisions of this Court issued after January 15, 2008, may be
cited for their persuasive value.
9
For these reasons, we find that the trial court erred by determining that
Licensee did not refuse chemical testing under the facts of this case. Accordingly,
we reverse the trial court’s order sustaining Licensee’s statutory appeals of his
license suspension and commercial license disqualification.11
__________________________________
CHRISTINE FIZZANO CANNON, Judge
Judge Wallace dissents.
11
As a result of our determination that the trial court erred by finding that Licensee had not
refused the request for chemical testing, we need not address DOT’s first argument regarding
alleged hearsay testimony precluded from the trial court’s hearing in this matter.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas Matthew Jack :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, : No. 1358 C.D. 2021
Appellant :
ORDER
AND NOW, this 20th day of October, 2022, the November 4, 2021
order of the Court of Common Pleas of Allegheny County is REVERSED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge