           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jack Keener,                                    :
                              Appellant         :
                                                :    No. 1003 C.D. 2016
                v.                              :        1004 C.D. 2016
                                                :    Submitted: December 23, 2016
Commonwealth of Pennsylvania,                   :
Department of Transportation, Bureau            :
of Driver Licensing                             :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE JULIA K. HEARTHWAY, Judge
                HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                FILED: May 25, 2017

                Jack Keener (Licensee) appeals from orders of the Court of Common
Pleas of Lebanon County (trial court)1 that denied his statutory appeals from a one-
year suspension of his operating privilege pursuant to Section 1547(b)(1) of the
Vehicle Code, commonly known as the Implied Consent Law,2 and a lifetime
disqualification of his privilege to drive a commercial motor vehicle, imposed in
accordance with the requirements of 75 Pa. C.S. §1611(c) (relating to two separate
and distinct incidents involving certain offenses and refusals).                    These civil
penalties were imposed as a consequence of Licensee’s refusal to submit to
chemical testing in connection with his arrest for violating 75 Pa. C.S. §3802

       1
           The Honorable Samuel A. Kline, presiding.

       2
          Section 1547(b)(1) requires any person placed under arrest for driving under the
influence (DUI) “to submit to chemical testing … [and if that person] 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 … for a period of 12 months.” 75 Pa. C.S. §1547(b)(1).
(relating to driving under the influence of alcohol or controlled substance (DUI)).
The Department of Transportation, Bureau of Driver Licensing (PennDOT)
suspended his operating privileges for refusing a blood test.


             Factually, Licensee contends the trial court erred when it held
Licensee refused chemical testing of his blood because he never informed the
officer that he would not take the test and the officer did not wait a reasonable
amount of time to determine Licensee’s actions amounted to a refusal to submit to
the requested blood test. Legally, Licensee also asserts suspension of his operating
privileges for refusing to submit to chemical testing violates his Fourth
Amendment right against warrantless blood tests incident to arrest and is therefore
unconstitutional in light of the U.S. Supreme Court decision in Birchfield v. North
Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016). Discerning no error below, we
affirm.


                                   I. Background
             PennDOT notified Licensee of the one-year suspension of his
operating privilege, and a lifetime disqualification of his privilege to drive a
commercial motor vehicle, as a consequence of his refusal to submit to chemical
testing after his arrest for DUI. Licensee timely appealed to the trial court.


             The trial court held a de novo hearing at which three witnesses
testified on behalf of PennDOT as follows. Police officer Andrew Harner (Officer
Harner) received a call for an incident on Lehman Street in Lebanon,
Pennsylvania.    Certified Record (C.R.), Item No. 11, Tr. Ct. Hr’g, Notes of
Testimony (N.T.), at 5-6. Dispatch notified Officer Harner of the registration of a

                                          2
truck that fled from the scene of the incident. Id. at 6. Dispatch also advised
Officer Harner that the truck was registered at an address located in the 400 block
of North Second Avenue in Lebanon. Id. Upon arrival at the North Second
Avenue address, Officer Harner observed a truck matching the description and
registration Dispatch provided to him. Id. at 7.


             Officer Harner approached the running vehicle and spoke with the
driver, Licensee. Id. at 7-8. Licensee informed Officer Harner he consumed a
little bit of alcohol on the day in question. Id. at 8. Officer Harner stated he knew
Licensee prior to this incident, and based on those previous interactions, Officer
Harner noticed Licensee’s speech and actions were lethargic. Id. at 8, 12-13.


             Police officer Chad Bowman (Officer Bowman) also testified on
behalf of PennDOT as follows. Officer Bowman received the same dispatch as
Officer Harner. Upon arrival at the address provided, Officer Bowman questioned
Licensee regarding his alcohol consumption. Id. at 15-16. In response, Licensee
only nodded up and down.         Id. at 16.   Officer Bowman asked if Licensee
remembered hitting a car on Lehman Street. Licensee answered that he did not
recall hitting a car. Id. at 17. Throughout his interactions with Licensee, Officer
Bowman detected a moderate odor of alcohol, slowed speech, slow movement and
bloodshot eyes. Officer Bowman “noticed damage on the passenger side of the
truck consistent with fresh damage of a vehicle accident of minor impact.” Id.


              Several times Officer Bowman requested that Licensee exit his
vehicle, but Licensee did not comply. Id. at 17. Thereafter, Officer Bowman



                                          3
opened the door and took the keys out of the ignition. Id. at 17-18. Officer
Bowman assisted Licensee out of the truck, “because, again, he wouldn’t perform
simple tasks.” Id. Officer Bowman placed him under arrest for suspicion of DUI
and took him to the hospital to perform tests. Id.


               At the hospital, Licensee declined to perform a Walk and Turn field
sobriety test because of his back. Id. at 19. Officer Bowman conducted another
test, which showed signs of impairment. Id. After the test, Officer Bowman
helped Licensee walk without staggering to another room to perform a blood draw.
Id. at 20. Officer Bowman read the chemical test warnings on PennDOT Form
DL-263 (Warning) to Licensee approximately two or three times because Licensee
stated he did not understand the Warning. Id. at 22.


               After the Warning was read to him, Licensee asked Officer Bowman
what he should do. Licensee also repeatedly requested to speak to his friend,
“George,” who Officer Bowman later discovered was an attorney. Id. at 22-23.
Officer Bowman spent approximately 10 or 12 minutes going over the Warning.
Id. Officer Bowman testified Licensee never verbally consented to the blood draw,
but never told Officer Bowman he refused the blood draw. Id. at 23, 25, 31.




       3
         Form DL-26 “inform[s] a motorist that [he:] is under arrest; ... is being requested to
submit to a chemical test; ... will lose [his] operating privileges and potentially face stricter
criminal penalties if the request is refused; and[,] there is no right to remain silent or speak to an
attorney.” Grogg v. Dep't of Transp., Bureau of Driver Licensing, 79 A.3d 715, 717 (Pa.
Cmwlth. 2013).



                                                  4
             Ashley Wynne, a phlebotomist at the hospital (Phlebotomist) testified
on behalf of PennDOT.        Phlebotomist testified she worked the day Officer
Bowman brought Licensee into the hospital. Phlebotomist testified she received a
page to draw blood, but was instructed to wait outside the room where Officer
Bowman and Licensee were located. Id. at 33-35. A few minutes later, Officer
Bowman informed Phlebotomist that she was no longer needed to perform the
blood draw. Id. at 35.


             At the hearing, PennDOT also submitted the Warning, and other
certified documents related to the case. These items were admitted into evidence
without objection. Id. at 21-22.


             One witness and Licensee testified on behalf of Licensee. Licensee
testified he went to the home of Richard Winters (Winters) to pick up snow shoes
for his snow plow and had a beer with him. Id. at 43. Licensee testified he pushed
in his passenger side mirror on his truck upon leaving Winters’ house because the
streets in Lebanon are narrow. Id. Licensee testified that shortly after he arrived at
his business in the 400 block of North Second Avenue, police pulled in behind him
and began to question him about an accident that occurred on Lehman Street. Id.
at 44. Licensee testified that he and Officer Bowman talked for a short period and
the conversation “didn’t go over very well.” Id. Licensee testified he was placed
in handcuffs and taken to the hospital. Upon arrival at the hospital, the handcuffs
were removed from Licensee and he sat on a chair. Licensee testified that Officer
Bowman asked him to consent to a blood draw. Id. at 45. Licensee testified he
never informed Officer Bowman he would not consent to the blood draw.



                                          5
However, Licensee also stated he never informed Officer Bowman he would
consent to the blood draw. Id. at 45, 47.
             Licensee also presented the testimony of Winters. Winters testified
Licensee picked up snow shoes at his home and each of them drank one 12-ounce
beer the afternoon of the incident. Id. at 39-40. Winters also testified he did not
believe Licensee was impaired and did not have any difficulty communicating with
Licensee before leaving. Id. at 40.


             Ultimately, the trial court denied Licensee’s appeal.        Licensee
appealed to this Court.


             In response to Licensee’s concise statement of errors complained of
on appeal, the trial court issued an opinion pursuant to Pa. R.A.P. 1925(a). The
trial court credited Officer Bowman’s testimony regarding his explanation of the
Warning. Specifically, the trial court explained:

             [A]fter reading the [Warning] for the first time to
             [Licensee], [Licensee] informed Officer Bowman that he
             did not understand the [Warning]. Officer Bowman
             testified that he slowly read the [Warning] again to
             [Licensee] and [Licensee] asked Officer Bowman what
             he should do. Officer Bowman informed [Licensee] that
             he could not give [Licensee] advice nor tell [him] what
             he should do. Thereafter, [Licensee] requested to speak
             to his friend George, which Officer Bowman advised
             [Licensee] he could not do. Officer Bowman stated that
             he read the [Warning] at least two to three times to
             [Licensee] and [Licensee] never verbally consented to the
             chemical blood test.

C.R., Item No. 15 at 8.



                                            6
              The trial court also read the Warning at the hearing and specifically
quoted the Warning in relevant part in its opinion:

              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 [advised] of these Warnings, you have remained
              silent when asked to submit to the chemical test. You
              have refused the test. (Emphasis added.)

Id. (citation omitted); see also C.R., Item No. 11 at 55.


              At the hearing, the trial court concluded, “[h]ow many more times
does Officer Bowman have to read this [Warning] before it’s a refusal?” Id. at 56.
In its opinion, the trial court explained that the Warning “[c]learly … advised
[Licensee] that anything less than clear consent to the chemical testing would be
considered a refusal and subject to consequences.” C.R., Item No. 15 at 9. Thus,
the trial court found no merit in Licensee’s argument that a reasonable amount of
time was not afforded to him, as the record clearly indicated Officer Bowman read
the Warning to Licensee “multiple times.” Id.


              The trial court also addressed Licensee’s reliance on Birchfield. The
trial court held that these civil penalties involved in these appeals are not impacted
as a result of Birchfield.           Consequently, the trial court found Licensee’s
assignments of error lacked merit. Licensee appeals.4

       4
        Our review is limited to determining whether the trial court’s necessary findings of fact
were supported by substantial evidence or whether the court committed an error of law or
otherwise abused its discretion. Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 954
(Footnote continued on next page…)

                                               7
                                         II. Issues
              Licensee contends the trial court erred in denying his appeal from a
suspension under the Implied Consent Law because PennDOT failed to establish
Licensee refused to submit to chemical testing of his blood. Licensee also argues
suspension of his operating privileges for refusing to submit to chemical testing of
his blood is unconstitutional in light of the U.S. Supreme Court decision in
Birchfield.


                                     III. Discussion
              To sustain a license suspension under the Implied Consent Law,
PennDOT must establish a licensee: (1) was arrested for DUI by a police officer
with reasonable grounds to believe the licensee operated the vehicle while under
the influence; (2) was asked to submit to a chemical test; (3) refused to do so; and,
(4) was specifically warned a refusal would result in suspension of his driver’s
license. See Quigley v. Dep’t of Transp., Bureau of Driver Licensing, 965 A.2d
349 (Pa. Cmwlth. 2009); Broadbelt v. Dep’t of Transp., Bureau of Driver
Licensing, 903 A.2d 636 (Pa. Cmwlth. 2006).


              In demonstrating whether a licensee refused chemical testing,
PennDOT must prove the police officer offered the licensee a meaningful
opportunity to comply with the Implied Consent Law. Broadbelt. If PennDOT


(continued…)

A.2d 761 (Pa. Cmwlth. 2008). In reviewing a license suspension appeal, we may not make new
or different findings of fact. Id. Rather, we will only review the trial court’s findings to
determine if they are supported by the record. Id. In doing so, we review the evidence in the
light most favorable to the prevailing party. Id.



                                             8
satisfies this burden, the burden shifts to the licensee to prove his refusal was not
knowing or conscious, or that he was physically incapable of submitting to the test.
Dep’t of Transp., Bureau of Driver Licensing v. Ingram, 648 A.2d 285 (Pa. 1994);
Broadbelt.


             The issue of whether a licensee refused chemical testing is one of law,
based on the facts as found by the trial court. Nardone v. Dep’t of Transp., Bureau
of Driver Licensing, 130 A.3d 738 (Pa. 2015); Tullo v. Dep’t of Transp., Bureau of
Driver Licensing, 837 A.2d 605 (Pa. Cmwlth. 2003). Whether there was a refusal
of chemical testing “turn[s] on a consideration of whether the motorist’s overall
conduct demonstrates an unwillingness to assent to an officer’s request for
chemical testing.” Nardone, 130 A.3d at 749.


             In addressing this issue, our courts consistently hold that anything less
than an unqualified, unequivocal assent to submit to testing constitutes a refusal.
Dep’t of Transp., Bureau of Driver Licensing v. Renwick, 669 A.2d 934 (Pa.
1996). Further, “[a] licensee need not explicitly refuse to submit to testing but may
demonstrate through his overall conduct a general unwillingness to submit to
testing. Officers are not required to ‘spend effort either cajoling the licensee or
spend time waiting to see if the licensee will ultimately change his mind.’”
Walkden v. Dep’t of Transp., Bureau of Driver Licensing, 103 A.3d 432, 440 (Pa.
Cmwlth 2014).


             Determinations as to the credibility of witnesses and the weight
assigned to their testimony are solely within the province of the fact-finder. Millili



                                          9
v. Dep’t of Transp., Bureau of Driver Licensing, 745 A.2d 111 (Pa. Cmwlth.
2000). “As fact-finder, the trial court may accept or reject the testimony of any
witness in whole or in part.” Reinhart v. Dep’t of Transp., Bureau of Driver
Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008) (citation omitted).


              Here, Licensee contends the trial court erred when it determined he
refused to submit to chemical testing of his blood because he never informed
Officer Bowman he would not take the test. Licensee further asserts Officer
Bowman did not wait a reasonable amount of time to determine Licensee’s actions
were a refusal. “The inherent concerns [Licensee] has is the lack of patience on
Officer Bowman’s part for a decision to be made during a criminal investigation.”
Pet’r’s Br. at 10. Licensee asserts simply asking a police officer one or two
questions does not imply to a reasonable person that the person is unwilling to
make a decision. Rather, Licensee asks that we construe this conduct as a “typical
response” during an otherwise stressful encounter.


              Contrary to Licensee’s assertions, Officer Bowman’s testimony at the
hearing demonstrates that once Licensee was transported to the hospital for testing,
he read the Warning for the first time to Licensee.5 Officer Bowman testified
Licensee did not understand the Warning. Officer Bowman testified he slowly
read the Warning again to Licensee, after which Licensee asked Officer Bowman
what he should do. Officer Bowman testified that at this point, Licensee requested


       5
         The warnings on the DL-26 Implied Consent Warning Form are sufficient as a matter of
law to advise a licensee of his rights under the Implied Consent Law. McKenna v. Dep’t of
Transp., Bureau of Driver Licensing, 72 A.3d 294 (Pa. Cmwlth. 2013).



                                             10
to speak to his friend George. Officer Bowman informed Licensee he could not
speak with George at this time. Officer Bowman further testified he read the
Warning to Licensee at least two to three times, and Licensee never verbally
consented to the chemical blood test. N.T. at 22-23.


             Licensee contends that Officer Bowman did not allow him the
opportunity to sign the Warning, “to demonstrate [Licensee’s] unequivocal refusal
to submit to the test.” Pet’r’s Br. at 11. This is a misstatement of the standard:
PennDOT does not need to prove a licensee’s unequivocal refusal.            To the
contrary, anything less than an unqualified, unequivocal assent is deemed a refusal.
Licensee’s conduct here clearly falls short of the “unqualified, unequivocal assent”
necessary for submission to chemical testing. See Winebarger v. Dep’t of Transp.,
Bureau of Driver Licensing, 655 A.2d 1093, 1095-96 (Pa. Cmwlth. 1995)
(licensee’s statement that only two attempts be made to draw blood and limiting
the second attempt to a specific arm placed “impediments and preconditions” that
were in effect a refusal to submit to testing).


             There is no merit in Licensee’s argument that he was not afforded a
reasonable amount of time to consent to testing. In addition to the time Officer
Bowman spent with Licensee before his arrest at the truck, after arrest on the way
to the hospital, and performing field sobriety testing at the hospital, Officer
Bowman read the Warning to Licensee multiple times, over a period of 10 to 12
minutes. Licensee clearly demonstrated his unwillingness to assent to Officer
Bowman’s request for blood testing by asking for George and asking Officer
Bowman what he should do. Licensee’s overall conduct constituted a refusal.



                                           11
Renwick. The trial court correctly held Licensee refused chemical testing because
he never submitted to the blood test requested by Officer Bowman. Nardone;
Renwick; Walkden.


             Licensee next asserts his operating privilege suspension and
commercial driving privilege disqualification are unlawful in light of Birchfield.


             We recently addressed and rejected the same argument in a reported
opinion in Boseman v. Department of Transportation, Bureau of Driver Licensing,
___ A.3d ___ (Pa. Cmwlth., No. 746 C.D. 2016, filed March 17, 2017). We noted
that Birchfield addressed the constitutionality of a state statute that made it a crime
to refuse a warrantless blood test after being arrested for DUI. We concluded that
although Birchfield may have some impact in criminal DUI proceedings in
Pennsylvania where enhanced penalties based on refusal of a blood test are
imposed, such is not the case in a civil license suspension appeal under the Implied
Consent Law.        Consequently, we determined that the licensee’s Fourth
Amendment challenge to the Implied Consent Law failed. We reach the same
conclusions here.


             For all the above reasons, we affirm.




                                        ROBERT SIMPSON, Judge




                                          12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jack Keener,                            :
                        Appellant       :
                                        :   No. 1003 C.D. 2016
            v.                          :       1004 C.D. 2016
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation, Bureau    :
of Driver Licensing                     :

                                    ORDER

            AND NOW, this 25th day of May, 2017, the orders of the Court of
Common Pleas of Lebanon County are AFFIRMED.



                                       ROBERT SIMPSON, Judge
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jack Keener,                              :
                   Appellant              :
                                          :
            v.                            :
                                          :
Commonwealth of Pennsylvania,             :   No. 1003 C. D. 2016
Department of Transportation,             :   No. 1004 C. D. 2016
Bureau of Driver Licensing                :   Submitted: December 23, 2016

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                             FILED: May 25, 2017

            This decision expands the definition of "refusal" far beyond that
which Nardone v. Department of Transportation, Bureau of Driver Licensing, 130
A.3d 738 (Pa. 2015) and Department of Transportation, Bureau of Driver
Licensing v. Renwick, 669 A.2d 934 (Pa. 1996) allow. While a finding of refusal
may be based on overall conduct, there was no such "conduct" in this case -- Mr.
Keener did nothing and said nothing. If an effort to perform the blood test were
undertaken and he then attempted to thwart the effort, that would be different.
That is not the case here, however. As a matter of law, we cannot assign a finding
of "refusal" under these circumstances.   I therefore dissent.




                                      ___________________________
                                      JOSEPH M. COSGROVE, Judge
