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

OPINION BY

Judge BUTLER.

The Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals from the November 16, 2007 order of the Court of Common Pleas of Allegheny County (trial court) setting aside its suspension of the operating privileges of Darlene Ann Yourick (Yourick). PennDOT suspended Yourick’s driver’s license pursuant to Section 1547 of the Vehicle Code1 after she refused to submit to chemical testing following her arrest for driving under the influence of alcohol (DUI).

On February 28, 2007, Yourick was arrested by Officer Sheldon Summers for DUI and was taken to the Forest Hills police station, where she was asked to submit to a breathalyzer test. Officer Summers read the chemical test warnings required by Section 1547(b) of the Vehicle Code to Yourick, three times, as they appeared on the August 2006 DL-26 Implied Consent Form (DL-26 Form).2 She read the form and asked questions. The first *343sentence of Warning 3 on DL-26 Form states: “[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence.”3 Based upon her interpretation of the third paragraph of the DL-26 Form and the fact that she did not have any prior refusals, Yourick refused chemical testing.

On March 30, 2007, PennDOT notified Yourick that her driving privileges were being suspended for one year, effective May 4, 2007, as a result of her refusal to submit to chemical testing on February 28, 2007. Yourick appealed the suspension to the Court of Common Pleas of Allegheny County. The trial court held a de novo hearing on September 27, 2007. At the beginning of the hearing, Yourick stipulated that she was arrested for driving under the influence of alcohol; that there were reasonable grounds for requesting that she submit to a chemical test; that she was asked to submit to a breathalyzer test; and, that she refused to take the test.

On November 16, 2007, the trial court sustained Yourick’s appeal, finding that the warning read by Officer Summers from the DL-26 Form to Yourick was poorly drafted and vague, thereby preventing Yourick from making a knowing and conscious refusal.4 PennDOT appealed to this Court. Our review is limited to determining whether the trial court committed an error of law or abused its discretion, and whether necessary findings of fact were supported by substantial evidence. Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa.Cmwlth.2008).

PennDOT argues on appeal that the trial court erred as a matter of law in con-*344eluding that, due to what it perceived as ambiguity in the DL-26 Form warnings, Yourick could not make a knowing and conscious refusal to submit to chemical testing. We agree. However, we find that the ultimate issue before this Court is whether the DL-26 Form warning was sufficient as a matter of law.

The operation of a motor vehicle in Pennsylvania “is a privilege subject to such conditions as the legislature may see fit to impose,....” Dep’t of Transp., Bureau of Driver Licensing v. Hoover, 147 Pa.Cmwlth. 70, 606 A.2d 1264, 1266 (1992) (Palladino, J., dissenting). Among the conditions imposed upon that privilege is the implied consent to submit to chemical testing where there is reasonable cause to believe a licensee is driving under the influence of alcohol and/or a controlled substance. Hoover. Section 1547 of the Vehicle Code is a clear statement of the legislative purpose to keep drunk drivers off the roads. Id. Section 1547(b) of the Vehicle Code states:

(1)If any person placed under arrest for a violation of section 3802 [(relating to DUI)] 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 privileges of the person as follows:
(i) Except as set forth in subpara-graph (ii), for a period of 12 months.
(ii) For a period of 18 months if any of the following apply:
(A) The person’s operating privileges have previously been suspended under this subsection.
(B) The person has, prior to the refusal under this paragraph, been sentenced for:
(I) an offense under section 3802;
(II) an offense under former section 3731[ (related to serious traffic offenses)];
(III) an offense equivalent to an offense under subclause (I) or (II); or
(IV) a combination of offenses set forth in this clause.
(2) It shall be the duty of the police officer to inform the person that:
(i) the person’s operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties).

It is well-settled that, in order to sustain a one-year license suspension under Section 1547 of the Vehicle Code, PennDOT must show that the driver (1) was placed under arrest for driving under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and, (4) was specifically warned that refusal would result in the suspension of his/her driver’s license. Martinovic v. Dep’t of Transp., Bureau of Driver Licensing, 881 A.2d 30 (Pa.Cmwlth.2005). Once PennDOT’s “burden has been met, the motorist must prove that his refusal was not knowing or conscious or that he was physically unable to take the test.” Dep’t of Transp., Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 446, 691 A.2d 450, 453 (1997).

There is no question that Yourick was placed under arrest for driving under the influence of alcohol, was asked to submit to a chemical test, she refused to do so, and Officer Summers read all four warnings on the DL-26 Form verbatim to Yourick three times, and that she read it herself. N.T. at 4-8,10-11,13-14; R.R. at 14a-18a, 20a-21a, 23a-24a, 33a, 51a. In order for *345Yourick to prevail on the appeal of her license suspension Yourick must, therefore, prove that her refusal to submit to chemical testing was not knowing or conscious.5 She attempts to do so by proving that her subjective interpretation of the wording of Warming 3 led her to refuse the test.

Because the “knowing and conscious” standard is not explicitly found in Section 1547, it “must be strictly construed as it creates exceptions to the clear language and policy of the implied consent law.” Hoover at 1269. There is no requirement in Vehicle Code Section 1547(b)(2)(i) that the implied consent warning issued by an officer contain any specific wording. It must merely “inform” a licensee that his/ her “operating privilege will be suspended upon refusal to submit to chemical testing.” 75 Pa.C.S. § 1547(b)(2)©. The Pennsylvania Supreme Court affirmed this Court’s holding that a warning is legally sufficient if it informs the licensee that refusing a request for chemical testing means that he/she “will be in violation of the law and will be penalized for that violation.” Dep’t of Transp., Bureau of Driver Licensing v. Weaver, 590 Pa. 188, 191, 912 A.2d 259, 261 (2006), citing Weaver v. Dep’t of Transp., Bureau of Driver Licensing, 873 A.2d 1, 3 (Pa.Cmwlth.2005).6 The DL-26 Form did just that.

Warning 3 of the DL-26 Form begins, “[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence.” (R.R. 33a). We hold that this warning sufficiently apprises the driver hearing and/or reading it that, if he/she refuses to submit to the chemical test, his/her operating privileges “will be suspended.” That a particular motorist hearing the warning may question its interpretation is not a sufficient basis upon which to state that the refusal was not knowing and conscious. In fact, the Pennsylvania Supreme Court has held that “[a] motorist’s subjective beliefs are an insufficient justification for refusing to comply with the mandates of the Implied Consent Law.” Dep’t of Transp., Bureau of Driver Licensing v. Scott, 546 Pa. 241, 249, 684 A.2d 539, 543 (1996) (driver did not believe the officer’s warning). Further, we find it is unreasonable for a driver, whose operating privileges were granted subject to his/her implied consent to submit to chemical testing where there is reasonable cause to believe a licensee is driving under the influence of alcohol, to believe that there would not be a penalty for failure to submit to that testing.

We hold, therefore, that the DL-26 Form is sufficient as a matter of law to meet the warning requirement under Vehicle Code Section 1547(b), and that it appropriately apprised Yourick that her license would be suspended if she refused chemical testing on February 28,2007.

Based upon the foregoing, we hold that the trial court erred, and its November 16, 2007 order must be reversed.

*346 ORDER

AND NOW, this 4th day of February, 2009, the November 16, 2007 order of the Court of Common Pleas of Allegheny County is REVERSED.

. 75 Pa.C.S. § 1547. Section 1547(b)(l)(i) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(l)(i), commonly referred to as the "Implied Consent Law," authorizes suspension of the driving privileges of a licensee where the licensee is placed under arrest for driving under the influence of alcohol, and the licensee refuses a police officer's request to submit to chemical testing.

. The August 2006 version of the DL-26 Form states:

1. Please be advised that you are under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code. *3432. I am requesting that you submit to a chemical test of - (blood, breath or urine. Officer chooses the chemical test).
3. It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence. In addition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, because of your refusal, you will be subject to the more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code, the same as if you would be convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000.
4. It is also my duty as a police officer to inform you that you have no right to speak with an attorney or anyone else before deciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or remaining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privileges and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code.

. According to Yourick, Warning 3 in the DL-26 Form was revised in December of 2007 to read: “[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months if you have prior refusals or have been previously sentenced for driving under the influence.” Appellant’s Brief at 22 n. 8. PennDOT explains that it was again revised in May of 2008 to read: “[i]f you refuse to submit to the chemical 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, you will be suspended for up to 18 months ...." Appellee's Brief at App. A. (Emphasis added).

. The trial court issued its opinion on January 30, 2008.,-

. There is no allegation in the record or on appeal that Yourick was physically unable to take the test.

. We acknowledge that Weaver examined the sufficiency of an earlier version of the implied consent warning under Section 1547(b)(2)(ii), as opposed to Section 1547(b)(2)(i); however, the variation in subsections and versions does not change the ultimate conclusion that an implied consent warning in Pennsylvania must notify a licensee that he/she will be in violation of the law and will be penalized for that violation if he/she refuses to submit to chemical testing.