              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William B. Kline, Jr.,                     :
                         Appellant         :
                                           :
                   v.                      :
                                           :
Commonwealth of Pennsylvania,              :
Department of Transportation,              :      No. 1490 C.D. 2018
Bureau of Driver Licensing                 :      Submitted: April 12, 2019

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                FILED: July 9, 2019

             William B. Kline, Jr. (Licensee) appeals from the Clearfield County
Common Pleas Court’s (trial court) September 18, 2018 order dismissing Licensee’s
operating privilege suspension appeal from the Commonwealth of Pennsylvania,
Department of Transportation, Bureau of Driver Licensing (Department). The sole
issue before this Court is whether Licensee refused chemical testing. After review,
we affirm.
             On March 11, 2018, Lawrence Township Police Officer Craig Allen
Kanour (Officer Kanour) observed Licensee’s pick-up truck stopped at a stationary
green light for several minutes with a broken passenger side headlight. Officer
Kanour followed behind the vehicle and, thereafter, pulled Licensee over on the
bypass. As Officer Kanour approached the vehicle, he detected the odor of an
intoxicating beverage emitting from the truck and Licensee. He further observed that
Licensee had red, glassy eyes and slurred speech. When Officer Kanour asked if
Licensee had anything to drink, he responded that he had two beers and he was
coming from the Toasted Monkey.
              Officer Kanour asked Licensee if he would perform standard field
sobriety tests and Licensee agreed. However, during the tests, Licensee complained
that the testing was ridiculous and he did not want to continue because he was pulled
over for a broken headlight. Licensee failed the finger dexterity test; he showed signs
of impairment when he performed the one-leg stand test; and he refused to perform
the walk-and-turn test. Officer Kanour then asked Licensee if he would be willing to
submit to a blood test, to which Licensee responded no. When Officer Kanour asked
Licensee to place his hands behind his back, Licensee said no, he was not going.
              Thereafter, another officer assisted Officer Kanour in handcuffing
Licensee and taking him to Penn Highlands Clearfield Hospital (Hospital). At the
Hospital, Officer Kanour read Licensee the implied consent warnings (Form DL-26).1
When Officer Kanour asked Licensee if he would be willing to consent to a blood
draw, Licensee responded, inter alia, that he did not understand the warnings.
Officer Kanour read the Form DL-26 a second time, after which Officer Kanour
again asked Licensee if he would agree to submit to a blood test. Because Licensee
began to argue, Officer Kanour stated that he would mark Licensee’s response as a
refusal. At that point, Licensee stated he would do whatever Officer Kanour wanted
him to do.
              Officer Kanour did not order the blood test because he did not receive a
clear yes or no from Licensee. Officer Kanour believed the words “do whatever you
want[,]” were insufficient to qualify as consent. Reproduced Record (R.R.) at 74a.
When Officer Kanour asked Licensee to exit the Hospital, Licensee became agitated.


       1
         “The [Form] DL-26 [] contains the chemical test warnings required by Section 1547 of the
Vehicle Code, [75 Pa.C.S. § 1547,] which are also known as the implied consent warnings.” Vora
v. Dep’t of Transp., Bureau of Driver Licensing, 79 A.3d 743, 745 n.2 (Pa. Cmwlth. 2013).
                                               2
Officer Kanour grabbed Licensee’s arm and escorted him out of the Hospital and into
the patrol car. Officer Kanour transported Licensee to the Clearfield County Jail and
placed him on a 48-hour detainer until Licensee could become sober.
              On March 19, 2018, the Department notified Licensee that his driver’s
license privileges would be suspended for a period of one year, effective April 26,
2018, pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547, due to his
refusal to submit to chemical testing. On April 2, 2018, Licensee appealed from the
suspension to the trial court. A hearing was held and, on September 18, 2018, the
trial court dismissed Licensee’s appeal.             Licensee appealed to this Court. 2         On
October 17, 2018, the trial court ordered Licensee to file a concise statement of the
matters complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) (Rule 1925(b) Statement).                Licensee filed his Rule 1925(b)
Statement with the trial court on November 5, 2018. The trial court filed its opinion
on December 7, 2018.
              Licensee argues that his statement: “I will do whatever he wants me to
do[,]” “was an unqualified and unequivocal consent to a chemical test[.]” Licensee
Br. at 4. This Court disagrees.
              Initially,

              [a]s finder of fact, the trial court is the sole arbiter of
              questions concerning the credibility and weight of the
              evidence, and the trial court’s determinations in these
              respects will not be disturbed unless the trial court abuses
              its discretion. However, whether a motorist’s conduct
              constitutes a refusal to submit to chemical testing is a
              question of law. In addressing this issue, we have
              consistently held that ‘anything substantially less than an

       2
        “Our review 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 abused its discretion.”
Renfroe v. Dep’t of Transp., Bureau of Driver Licensing, 179 A.3d 644, 648 n.3 (Pa. Cmwlth.
2018).


                                                 3
               unqualified, unequivocal assent’ to submit to testing
               constitutes a refusal to do so. Dep[’t] of Transp[.] v.
               Renwick,. . . 669 A.2d 934, 938 ([Pa.] 1996); Lanthier v.
               Dep[’t] of Transp[.], Bureau of Driver Licensing, 22 A.3d
               346, 348 (Pa. Cmwlth. 2011); Miele v. Commonwealth, . . .
               461 A.2d 359, 360 ([Pa. Cmwlth.] 1983).

McKenna v. Dep’t of Transp., Bureau of Driver Licensing, 72 A.3d 294, 298 (Pa.
Cmwlth. 2013) (emphasis added; citations omitted). “Further, a licensee’s refusal
need not be expressed in words; a licensee’s conduct may constitute a refusal.” Park
v. Dep’t of Transp., Bureau of Driver Licensing, 178 A.3d 274, 281 (Pa. Cmwlth.
2018). Finally, “this Court has consistently held that once a licensee refuses chemical
testing, the refusal cannot be vitiated by a later assent.” Vora v. Dep’t of Transp.,
Bureau of Driver Licensing, 79 A.3d 743, 747 (Pa. Cmwlth. 2013) (citation omitted).
               Here, Officer Kanour read Licensee the Form DL-26 warnings twice.
Officer Kanour testified that, after he read the Form DL-26 to Licensee the first time:

               I do not remember exactly what [Licensee] said. I know it
               was along the lines of -- because he went back and forth, he
               would state that he wanted his attorney, I believe, or that he
               didn’t understand the test. Or, what I read to him, I believe
               is what he said.

R.R. at 72a. Officer Kanour described that, after he read the Form DL-26 to Licensee
the second time:

               [Licensee] began to argue the fact that he was stopped for a
               headlight. Or, I’m sorry. Yes, he began to argue the fact
               that he was stopped for a headlight, becoming very agitated,
               saying that he’s a business owner.
               ....
               I advised him that he would be marked as a refusal. And
               that he was read the form multiple times. He then began to
               state that he will do whatever he wants me to do -- or, he
               will do whatever I want him to do.

R.R. at 74a.

                                             4
            Licensee did not give an unqualified, unequivocal assent to submit to
chemical testing at any time during his interaction with Officer Kanour. It is not an
officer’s duty to tell a licensee what to do. “An officer’s sole duty is to inform
motorists of the implied consent warnings; once they have done so, they have
satisfied their obligation.”   Martinovic v. Dep’t of Transp., Bureau of Driver
Licensing, 881 A.2d 30, 35 (Pa. Cmwlth. 2005). Even if this Court was to conclude
that Licensee’s statement that he would do whatever Officer Kanour wanted him to
do was an assent to the blood test, it followed two refusals which were not vitiated by
Licensee’s later assent.   Vora.    Accordingly, the trial court properly dismissed
Licensee’s appeal.
            For all of the above reasons, the trial court’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           5
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William B. Kline, Jr.,                      :
                         Appellant          :
                                            :
                   v.                       :
                                            :
Commonwealth of Pennsylvania,               :
Department of Transportation,               :     No. 1490 C.D. 2018
Bureau of Driver Licensing                  :


                                     ORDER

             AND NOW, this 9th day of July, 2019, the Clearfield County Common
Pleas Court’s September 18, 2018 order is affirmed.



                                     ___________________________
                                     ANNE E. COVEY, Judge
