N. Renner v. Bureau of Driver Licensing (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Nevin Cole Renner, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing BEFORE: : : : : : : : : : No. 2289 C.D. 2007 Submitted: June 20, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: July 10, 2008 Nevin Cole Renner (Licensee) petitions for review of an order of the Court of Common Pleas of Greene County (trial court) dismissing Licensee s appeal and reinstating the decision of the Department of Transportation, Bureau of Driver Licensing (Bureau), to suspend his driving privileges for 18 months pursuant to Section 1547(b)(1)(ii) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(ii).1 For the reasons discussed herein, we affirm the order of the trial court. 1 Section 1547(b)(1)(ii) of the Vehicle Code states that: (Continued ¦) The Bureau issued an Official Notice of Suspension (Notice) to Licensee on March 12, 2007. The Notice stated that Licensee s driving privileges would be suspended for 18 months pursuant to Section 1547(b)(1)(ii) of the Vehicle Code. Licensee appealed this suspension to the trial court, arguing that he did not refuse to submit to chemical testing. The trial court held a suspension hearing on August 20, 2007 at which Licensee, Officer Thomas Ankrom, and Officer Shawn Wood testified. Subsequently, the trial court issued an order on August 21, 2007, dismissing the appeal and reinstating the license suspension. In response to the trial court s order, Licensee timely filed a notice of appeal to this Court. On November 21, 2007, the trial court filed an opinion, in compliance with Rule 1925 of the Pennsylvania Rules of Appellate Procedure, supporting its August 21, 2007 order. The trial court s opinion sets out the following relevant facts. (1) If any person placed under arrest for a violation of section 3802 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 privilege of the person as follows: .... (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; (III) an offense equivalent to an offense under subclause (I) or (II); or (IV) a combination of the offenses set forth in this clause. 75 Pa. C.S. § 1547(b)(1)(ii). 2 Licensee was involved in an automobile accident on February 2, 2007, in which his pickup truck slid off High Street in the Borough of Waynesburg and hit a building. The building was slightly damaged, but unoccupied at the time. Licensee stated that he called the owner and left a message identifying himself and informing the owner of the damage. A neighbor notified the police after witnessing the accident. Officer Thomas Ankrom responded to the scene to investigate the accident. By the time Officer Ankrom arrived at the scene, Licensee and his truck were gone. Officer Ankrom later observed a truck in the area that matched the description of the vehicle involved in the accident. Officer Ankrom initiated a stop and noticed that the truck appeared to have recent damage that corresponded with the damage to the building. Officer Ankrom then noticed that Licensee, the operator of the truck, exuded the smell of alcohol and displayed red, bloodshot eyes. Officer Ankrom ordered Licensee to exit the vehicle to perform field sobriety tests. Licensee declined to do a one leg stand, the first test requested, because he had a bad ankle. When asked to perform the walk and turn test, Licensee again declined because he was wearing cowboy boots. Officer Ankrom then placed Licensee under arrest on suspicion of driving under the influence and took him to the Waynesburg Police station for Intoxilyzer testing. At the station, Officer Ankrom read Licensee the chemical test warnings printed on the form provided by the Department of Transportation. Licensee told Officer Ankrom that he did not want to take the test and that he would refuse to sign the warning form. Officer Ankrom recorded Licensee s comments as a refusal and called a friend of Licensee to pick him up. Licensee never gave a reason for his refusal and did not request a blood draw. Licensee was subsequently charged with 3 driving under the influence, in violation of Section 3802(a)(1) of the Vehicle Code, 75 Pa. C.S. § 3802(a)(1). Licensee testified at the suspension hearing and explained that he refused to take the breath test because he suffers from an umbilical hernia which causes pain or discomfort if he puffs forcefully. Licensee presented the testimony of Karen Campbell, RN, a healthcare provider he has seen for this problem. Nurse Campbell verified that Licensee had a hernia and reported that she had given Licensee a note, at his request, which said he was unable to perform testing requiring the use of his abdominal muscles, which implicated his ability to blow forcefully. Licensee admitted that he did not tell Officer Ankrom why he thought he could not perform the breath test and testified that he, instead, asked for a blood test. Upon the conclusion of the hearing, the trial court determined that Licensee failed to notify Officer Ankrom of a condition that interfered with his ability to successfully complete a breath test. Accordingly, the trial court dismissed Licensee s appeal and reinstated the license suspension. (Trial Ct. Order.) In a license suspension case, this Court s scope of review is limited to determining whether the trial court committed an error of law, abused its discretion, or whether its findings are supported by substantial evidence. Whistler v. Department of Transportation, Bureau of Driver Licensing, 882 A.2d 537, 540 n.2 (Pa. Cmwlth. 2005). Questions of credibility and conflicts in the evidence presented are for the trial court to resolve . . . . Department of Transportation, Bureau of Traffic Safety v. O Connell, 521 Pa. 242, 248, 555 A.2d 873, 875 (1989). In order to sustain a license suspension, the Bureau must establish that the licensee: 4 (1) was arrested for driving while under the influence by a police officer who had reasonable grounds to believe that the licensee was operating a vehicle while under the influence of alcohol or a controlled substance, (2) was asked to submit to a chemical test, (3) refused to do so, and (4) was warned that a refusal would result in a license suspension. Maletic v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 640, 643 (Pa. Cmwlth. 2003). For an 18-month suspension, the Bureau must also show that the licensee satisfied one of the statutory requirements contained in Section 1547(b)(1)(ii) of the Vehicle Code. A refusal occurs unless a licensee provides his unqualified, unequivocal assent to submit to chemical testing. Finney v. Department of Transportation, Bureau of Driver Licensing, 721 A.2d 420, 423 (Pa. Cmwlth. 1998). Once [the Bureau] has met its burden, the licensee has the obligation to establish that his refusal was not knowing or that he was physically unable to take the test. Whistler, 882 A.2d at 540. On appeal, Licensee contends that he refused to submit to chemical testing because he was physically unable to take the test. He argues that: (1) he was entitled to a blood test pursuant to Section 1547(h) and (i) of the Vehicle Code, 75 Pa. C.S. § 1547(h) and (i);2 (2) he did not refuse to submit to chemical testing since his actions, 2 Subsections (h) and (i) of Section 1547 of the Vehicle Code state that: (h) Test by personal physician.--The person tested shall be permitted to have a physician of his own choosing administer an additional breath, blood or urine chemical test and the results of the test shall also be admissible in evidence. The chemical testing given at the direction of the police officer shall not be delayed by a person's attempt to obtain an additional test. (i) Request by driver for test.--Any person involved in an accident or placed under arrest for a violation of section 1543(b)(1.1), 3802 or 3808(a)(2) may request a (Continued ¦) 5 coupled with his request to take a blood test, put Officer Ankrom on notice that he could not physically take the breath test; and (3) that the testimony of Nurse Campbell was sufficient to establish that he had a medical condition that prevented him from performing the breath test. (Licensee s Br. at 3, 6). However, given clear precedent and because the trial court s finding that Licensee did not inform the police officer of any medical reasons for his refusal to take the breath test is supported by substantial evidence, we disagree with Licensee s position. As to the first issue, Licensee cites subsections (h) and (i) of Section 1547 of the Vehicle Code and argues that he is entitled to request a blood test, rather than a breath test. We first note that the trial court found that Licensee did not request a blood test. (Trial Ct. Op. at 2). There is substantial evidence to support this credibility determination.3 However, even if Licensee had requested a blood test, Section 1547 of the Vehicle Code does not afford a driver a choice among the three tests provided under that section; rather, it is the police officer who has the option to choose the type of chemical test to administer. McGee v. Department of Transportation, Bureau of Driver Licensing, 803 A.2d 255, 259 (Pa. Cmwlth. 2002). Also, Section 1547(i) of the Vehicle Code was intended to allow a person to chemical test of his breath, blood or urine. Such requests shall be honored when it is reasonably practicable to do so. 75 Pa C.S. § 1547 (h), (i). 3 Officer Ankrom, when asked if Licensee informed him of any reason why he was unwilling to blow into the breath testing instrument, stated that [i]t was refused without incident. He didn t argue it in any way. (Trial Ct. Hr g Tr. at 24, August 20, 2007.) Officer Wood testified that Licensee did not ask for a blood test at any time when he (Officer Wood) was present. (Trial Ct. Hr g Tr. at 39.) 6 voluntarily request a chemical test of his breath when he has not been requested by an officer to submit to one in the first instance. Department of Transportation, Bureau of Traffic Safety v. Schauer, 465 A.2d 101, 102 (Pa. Cmwlth. 1983) (emphasis in original). Additionally, Section 1547(h) of the Vehicle Code only provides drivers with a right to request an additional test from a physician of his choosing. Department of Transportation, Bureau of Driver Licensing v. Quinn, 539 A.2d 509, 510 (Pa. Cmwlth. 1988). Thus, Licensee was not entitled to select a blood test as his preferred chemical testing option. As to the notice issue, a licensee has an obligation to inform the police officer of any known medical conditions that render him incapable of taking a chemical test. Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456, 460 (Pa. Cmwlth. 2000) (citing Finney, 721 A.2d at 424). If a licensee fails to do so, the licensee is precluded from presenting testimony that a medical condition existed at the time of the test. Finney, 721 A.2d at 424. Licensee argues that his actions and statements on the evening of his arrest show that he did not refuse to submit to chemical testing. Rather, Licensee asserts that he told Officer Ankrom that he could not perform field sobriety tests due to his bad leg and poor road conditions. (Trial Ct. Hr g Tr. at 53-54, August 20, 2007.) Licensee also asserts that he told Officer Ankrom that he couldn t take the breath test, was not refusing, and wanted instead to take a blood test. (Trial Ct. Hr g Tr. at 46.) According to Licensee, these events would have put Officer Ankrom on notice that he had a condition that prevented him from completing the breath test. However, Licensee admitted that he did not give Officer Ankrom a medical reason as to why he could not take the breath test. (Trial Ct. Hr g Tr. at 46.) 7 Licensee unquestionably knew that he had an umbilical hernia, which he now claims precluded him from completing a breath test, since he testified that he had been seen by a doctor for this condition prior to his arrest on February 2, 2007. (Trial Ct. Hr g Tr. at 47.) Moreover, apparently believing the officers testimony, the trial court specifically found that Licensee did not request a blood test. (Trial Ct. Op. at 2). Furthermore, a reasonable police officer would not necessarily interpret a refusal of a field sobriety test because of a bad ankle and wearing cowboy boots to mean that a subsequent unqualified refusal of a breath test was for other, different, medical reasons. Accordingly, the trial court s finding that Licensee failed to give a reason for refusing the breath test is clearly supported by substantial evidence. Because Licensee did not inform the police officer that he had a medical reason for refusing the breath test, he is precluded from raising the medical condition as an affirmative defense. Finney, 721 A.2d at 424. We, therefore, do not reach Licensee s argument that Nurse Campbell s testimony was sufficient to establish that he had a medical condition that precluded him from successfully completing a breath test.4 4 Even if the trial court found that Officer Ankrom was sufficiently informed of Licensee s medical condition, and we were to address Licensee s final argument, the evidence presented at the suspension hearing is, nonetheless, insufficient to satisfy Licensee s burden of providing competent medical evidence to show that his umbilical hernia would have prevented him from completing a breath test. The facts in this case are similar to that in Bridges, where this Court held that the doctor s testimony was incompetent since he was unaware of the force required to satisfy the requirements of a breathalyzer test, unfamiliar with the period of time a breath must be sustained, or how hard a person must blow to perform the test. Bridges, 752 A.2d at 460. This case is also similar to Whistler, in which this Court held that equivocal statements that a motorist s condition could have or may have prevented him from performing the breathalyzer test properly are insufficient to show that a condition rendered him physically unable to perform the test. Whistler, 882 A.2d at 541. Similar to the experts in the above cases, Nurse Campbell was unfamiliar with how much air needs to be blown into the Intoxilyzer machine, or how hard someone needs to blow into the Intoxilyzer machine. (Campbell Dep. at 7.) Nurse Campbell also testified that deep breathing or exhaling of air might cause an individual with an umbilical hernia pain and discomfort, but not necessarily actual tissue damage. (Campbell Dep. at 9.) Accordingly, the (Continued ¦) 8 For the aforementioned reasons, the order of the trial court is affirmed.5 RENÃ E COHN JUBELIRER, Judge Senior Judge Kelley concurs in the result only. finding of the trial court that Licensee failed to present competent medical evidence that he was unable to perform the breath test is supported by substantial evidence. 5 In its brief, the Bureau contends that Licensee s appeal is devoid of merit and, therefore, frivolous. However, Licensee sets forth a good faith argument that he had a medical reason for failing to take the test and that Nurse Campbell s testimony was sufficient evidence of that reason. Thus, we decline to award reasonable counsel fees and costs pursuant to the discretion conferred on this Court by Rule 2744 of the Pennsylvania Rules of Appellate Procedure. 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Nevin Cole Renner, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing : : : : : : : : : No. 2289 C.D. 2007 ORDER NOW, July 10, 2008, the order of the Court of Common Pleas of Greene County in the above-captioned matter is hereby AFFIRMED. RENÃ E COHN JUBELIRER, Judge

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