             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Togba                                       :
                                                   :
                        v.                         :    No. 928 C.D. 2019
                                                   :    SUBMITTED: December 27, 2019
Commonwealth of Pennsylvania,                      :
Department of Transportation,                      :
Bureau of Driver Licensing,                        :
                         Appellant                 :


BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                          FILED: August 26, 2020


                The Department of Transportation, Bureau of Driver Licensing, appeals
from the order of the Court of Common Pleas of Delaware County sustaining the
statutory appeal of Samuel Togba, Licensee, from an eighteen-month suspension of
his operating privilege. The suspension had been imposed by the Department
pursuant to Section 1547(b)(1)(ii) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1)(ii),1
as a consequence of Licensee’s reported refusal to submit to chemical testing in
connection with his arrest for violating Section 3802 of the Vehicle Code, 75 Pa.C.S.

    1
       Subsections 1547(a) and (b) of the Vehicle Code, 75 Pa.C.S. § 1547(a) and (b), are referred
to as the Pennsylvania Implied Consent Law, under which the Department is required to suspend
a licensee’s operating privilege for at least one year for refusing a police officer’s request to submit
to chemical testing. Additionally, to impose a suspension of eighteen months in length, the
Department was required to show that Licensee was subject to one of the statutory enhancing
provisions contained in 75 Pa.C.S. § 1547(b)(1)(ii); here, the Certified Driving History entered
into evidence by the Department showed that Licensee was convicted on February 28, 2017, of
violating 75 Pa.C.S. § 3802(a)(1) on May 26, 2016 (Reproduced Record “R.R.” at 83a).
§ 3802 [relating to driving under the influence of alcohol or controlled substance
(DUI)]. We reverse.
             The trial court, which conducted a hearing de novo, at which Licensee
and Upper Darby Police Officer Robert Bennett testified, filed findings of fact and
conclusions of law in June 2019 (Findings of Fact and Conclusions of Law
“F.F./C.L” 1-51, Reproduced Record “R.R.” at 87a-93a). Following appeal to this
Court, the trial court issued an opinion pursuant to Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure, Pa. R.A.P. 1925(a) (R.R. at 106a-118a).             We
summarize the trial court’s findings below.
             Officer Bennett testified in relevant part as follows. On March 11,
2018, Officer Bennett responded to a dispatch at 3:55 a.m. about a motor vehicle
accident and arrived thirty seconds later. On the sidewalk, he saw a gray Porsche
SUV with extensive damage. Licensee was outside the vehicle, staggering in circles
on the highway, and bleeding from his forehead. The officer smelled alcohol on
Licensee’s person. Licensee had bloodshot and watery eyes and slurred speech. He
admitted that he consumed alcohol in the form of a couple glasses of champagne
that evening. He admitted to driving the Porsche SUV, stating that he had swerved
to avoid another vehicle that had cut him off. Licensee could not remember any
further details about the accident, including a description of the other vehicle.
Officer Bennett, concerned with Licensee’s physical condition, did not administer
field sobriety tests and called an ambulance. Medics took Licensee to the hospital
via ambulance.
             Officer Bennett arrived at the hospital twenty minutes later and saw
Licensee on an emergency room bed. He did not speak to anyone at the hospital
about Licensee’s medical condition. Officer Bennett testified that other than hospital



                                          2
personnel giving him something to hold on his head, Licensee had not received
medical treatment prior to speaking to him at the hospital. Officer Bennett informed
Licensee that he was under arrest for DUI and read him the DL-26 Form verbatim.2
Officer Bennett testified that although he could not recall the words Licensee used,
Licensee refused to submit to chemical testing.
              Licensee testified in relevant part as follows. Licensee had two or three
glasses of champagne on the evening of the incident. Licensee recalled another
vehicle cutting him off, but did not remember hitting anything. Although Licensee
recalled telling Officer Bennett about how the accident occurred, his next memory
was of being discharged from the hospital. Licensee had no other memory of what
happened between the time the other vehicle cut him off and his discharge from the
hospital in the afternoon and evening hours of Sunday, March 11. Licensee testified
that he bled from cuts inside his nose and received instructions on treatment, and
that for more than two weeks after the accident, his nose bled periodically and he
had a headache.
              The trial court found credible the testimony of Licensee and, more
limitedly, Officer Bennett regarding Licensee’s injuries. (F.F./C.L. 48-49, R.R. at
93a.) The trial court concluded that Licensee was incapable of making a knowing
and conscious refusal based upon his “obvious[,] severe, [and] incapacitating
injuries.” (F.F./C.L. 50, R.R. at 93a.)
              The Department appealed to this Court and, at the direction of the trial
court, filed a statement of errors complained of on appeal under Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b). The trial court’s


    2
     The Department’s DL-26 Form contains the chemical test warnings and report of refusal to
submit to chemical testing as authorized by Section 1547 of the Vehicle Code.


                                             3
opinion under Pa. R.A.P. 1925(a) expanded upon its analysis and found that it
properly sustained the appeal.
                 On appeal, the Department raises the following issues, paraphrased
slightly and reordered:

                 Did Licensee fail to satisfy his burden of proof that his
                 admitted consumption of alcohol did not contribute to his
                 inability to make a knowing and conscious refusal of
                 chemical testing?
                 Was the trial court’s finding that Licensee satisfied his
                 burden of proof that he was incapable of making a
                 knowing and conscious decision to refuse chemical testing
                 supported by competent evidence?

(Department Br. at 4.)3 We agree with the Department that Licensee was required
to show by unequivocal expert medical testimony that his alcohol consumption did
not contribute to his inability to make a knowing and conscious refusal and that
Licensee failed to meet this burden.
                 It is not disputed that the Department met its prima facie burden to
sustain a suspension of operating privilege under Section 1547.4 That being so, the



    3
        As these issues raise questions of law, our review is plenary.

    4
      In order to support the suspension of Licensee’s operating privilege under Section
1547(b)(1), the Department had the burden of proving the following:

                 (1) Licensee was arrested for violating Section 3802 of the Vehicle
                 Code by a police officer who had “reasonable grounds to believe”
                 that Licensee was operating or was in actual physical control of the
                 movement of a vehicle while in violation of Section 3802 (i.e., while
                 driving under the influence); (2) Licensee was asked to submit to a
                 chemical test; (3) Licensee refused to do so; and (4) Licensee was
                 specifically warned that a refusal would result in the suspension of



                                                   4
burden shifted to Licensee to show that he was incapable of making a knowing and
conscious refusal. Therefore, Licensee was required to prove that (1) he was
physically incapable of completing the chemical (blood) test or (2) his refusal was
not knowing and conscious. Kollar v. Dep’t of Transp., Bureau of Driver Licensing,
7 A.3d 336, 339 (Pa. Cmwlth. 2010). Here, Licensee did not contend that he was
physically incapable of completing a blood test and thus was required to show that
his refusal was not knowing and conscious.
              Generally, expert medical testimony is required in order to establish a
licensee was unable to provide a knowing and conscious refusal to submit to
chemical testing. Id. at 340. A medical expert must rule out alcohol as a contributing
factor to the licensee’s inability to offer a knowing and conscious refusal in order to
satisfy the licensee’s burden. Id. Indeed, if the motorist’s inability to make a
knowing and conscious refusal of testing is caused in whole or in part by
consumption of alcohol, the licensee is precluded from meeting his or her burden as
a matter of law. Id. [citing DiGiovanni v. Dep’t of Transp., Bureau of Driver
Licensing, 717 A.2d 1125 (Pa. Cmwlth. 1998)]. This Court has repeatedly held that
a licensee has not met his or her burden, even where expert medical testimony was
presented, if such testimony did not establish with a reasonable degree of medical
certainty that alcohol was not a contributing factor to the licensee’s inability to make
a knowing and conscious refusal. Kollar (reversing trial court’s sustaining of appeal
because physician’s testimony was equivocal concerning whether concussion or
alcohol consumption caused inability to give knowing and conscious refusal); Scott

              his operating privileges and would result in enhanced penalties if he
              was later convicted of violating Section 3802(a)(1).

Garlick v. Dep’t of Transp., Bureau of Driver Licensing, 176 A.3d 1030, 1035 (Pa. Cmwlth. 2018)
(en banc) (emphasis omitted).


                                               5
v. Dep’t of Transp., Bureau of Driver Licensing, 6 A.3d 1047 (Pa. Cmwlth. 2010)
(reversing trial court’s sustaining of appeal where doctor did not testify
unequivocally that a panic attack prevented a knowing and conscious refusal);
Dailey v. Dep’t of Transp., Bureau of Driver Licensing, 722 A.2d 772 (Pa. Cmwlth.
1999) (reversing trial court’s sustaining of appeal where psychiatrist could not
separate effects of alcohol from bipolar disorder); DiGiovanni (reversing trial court’s
sustaining of appeal where physician did not definitively state that licensee’s head
injuries prohibited him from making a knowing and conscious refusal).
             In this case, there is no dispute that Licensee consumed alcohol shortly
before his collision. Licensee testified that he had consumed alcohol at a party
shortly before the incident and the trial court specifically found his testimony
credible. Officer Bennett corroborated Licensee’s testimony, including observing
evidence of intoxication at the scene and taking Licensee’s statement that he had
consumed alcohol. Given this evidence, it was Licensee’s burden to show through
unequivocal medical evidence that alcohol was not a contributing factor to his
inability to offer a knowing and conscious refusal. Licensee instead presented no
medical evidence at all. Thus, he clearly failed to meet his evidentiary burden.
             We also find inapposite the cases relied upon by the trial court in
concluding that medical evidence was not necessary in this case. Such cases allow
a licensee to establish inability to make a knowing and conscious refusal without
medical evidence where there are “severe, incapacitating injuries that are
obvious[.]” Ostermeyer v. Dep’t of Transp., Bureau of Driver Licensing, 703 A.2d
1075, 1077 (Pa. Cmwlth. 1997) (emphasis in original). It is not obvious on the facts
found by the trial court that Licensee’s injuries were so severe and incapacitating as
to render him incapable of making a knowing and conscious refusal. Compare Dep’t



                                          6
of Transp., Bureau of Traffic Safety v. Day, 500 A.2d 214 (Pa. Cmwlth. 1985)
(finding medical evidence unnecessary where record showed licensee suffered a
broken jaw, severe facial lacerations, a broken arm, an injured leg, and blows to the
back of the head), and Ostermeyer (reversing trial court’s sustaining of appeal where
alleged head injuries were insufficiently obvious not to require licensee to produce
medical evidence). While whether a licensee is capable of making a knowing and
conscious refusal is a factual determination to be made by the trial court, Kollar, 7
A.3d at 340, such a determination must be supported by competent evidence in the
record, Lanthier v. Department of Transportation., Bureau of Driver Licensing, 22
A.3d 346, 352 (Pa. Cmwlth. 2011).         Here, we conclude that the facts found
concerning Licensee’s injuries are more analogous to those found in cases like
Ostermeyer than those in Day.
             In light of the foregoing, we reverse.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge




                                          7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Togba                            :
                                        :
                   v.                   :   No. 928 C.D. 2019
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                         Appellant      :


                                     ORDER


            AND NOW, this 26th day of August, 2020, the order of the Court of
Common Pleas of Delaware County in the above-captioned matter is hereby
REVERSED. It is DIRECTED that the eighteen-month suspension of Samuel
Togba’s operating privilege imposed by the Department of Transportation, Bureau
of Driver Licensing be reinstated.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
