                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adeayo Turton,                                    :
                        Appellant                 :
                                                  :    No. 1390 C.D. 2018
                v.                                :
                                                  :    Submitted: April 18, 2019
Commonwealth of Pennsylvania,                     :
Department of Transportation,                     :
Bureau of Driver Licensing                        :


BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                       FILED: July 10, 2019


                Adeayo Turton (Licensee) appeals, pro se, from the August 29, 2018 order
of the Court of Common Pleas of Philadelphia County (trial court) denying his appeal
from a one-year suspension of his operating privilege imposed by the Commonwealth
of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT),
under section 1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S. §1547(b)(1)(i), commonly
referred to as the Implied Consent Law.1

      1
          Section 1547(b)(1)(i) reads, in pertinent part, as follows:

                (1) If any person placed under arrest for a violation of section 3802
                [relating to driving under the influence of alcohol or a controlled
                substance] is requested to submit to chemical testing and refuses to do
                so, the testing shall not be conducted but upon notice by the police
                               Facts and Procedural History
              On December 31, 2017, while patrolling an area of Interstate 76 in
Philadelphia, Pennsylvania, State Trooper Michael Laurendeau observed a red Mazda
sport utility vehicle (SUV), which he later learned was driven by Licensee, travelling
erratically. More specifically, Trooper Laurendeau observed the SUV leave the lane of
travel several times without properly signaling a lane change and following too closely
behind other vehicles. Upon reaching a safe area, Trooper Laurendeau initiated a traffic
stop.   Upon approaching the vehicle and requesting Licensee’s license, Trooper
Laurendeau immediately detected an overwhelming smell of alcohol coming from the
vehicle. Trooper Laurendeau also observed that Licensee’s eyes were glassy and
bloodshot and that Licensee was slurring his speech. Trooper Laurendeau requested
that Licensee exit the vehicle and he proceeded to perform three different field sobriety
tests. Licensee failed all three tests, at which point he was placed under arrest for
suspicion of driving under the influence (DUI). (Trial court op. at 2-3.)
              Trooper Laurendeau thereafter transported Licensee to the police
detention unit (PDU) for processing. Following protocol, Trooper Laurendeau asked
Licensee if he would consent to a blood draw, which Licensee refused. Trooper
Laurendeau then read verbatim the DL-26 form warnings to Licensee advising of the
consequences of refusing the chemical testing of his blood. Trooper Laurendeau
offered Licensee another chance to consent to the blood draw but Licensee again
refused. Trooper Laurendeau signed the DL-26 form stating that he read the warnings

              officer, the department shall suspend the operating privilege of the
              person as follows:

                      (i) Except as set forth in subparagraph (ii), for a period
                      of 12 months.

75 Pa.C.S. §1547(b)(1)(i).


                                                  2
to Licensee and offered him an opportunity to submit to the chemical testing, and
Licensee also signed the form acknowledging that he had been advised of the warnings
contained therein. (Trial court op. at 3.)
             Trooper Laurendeau subsequently advised DOT of Licensee’s refusal to
submit to chemical testing. By letter dated January 29, 2018, DOT notified Licensee
that his operating privilege was being suspended for one year as a result of this refusal.
Licensee filed a statutory appeal with the trial court. (Reproduced Record (R.R.) at
52a-54a.) The trial court conducted a hearing on August 29, 2018. (R.R. at 29a-50a.)
At this hearing, DOT submitted into evidence, without objection, a certified packet of
documents, which included the January 29, 2018 notice of suspension, the DL-26 form
read to Licensee and signed by Trooper Laurendeau, and Licensee’s driving history.
(R.R. at 32a-34a, 51a-60a.)
             DOT thereafter presented the testimony of Trooper Laurendeau, who
related the above-described events. Trooper Laurendeau testified that he administered
three field sobriety tests, including the horizontal gaze nystagmus, the walk and turn,
and the one-leg stand, and that Licensee showed signs of impairment and/or failed to
complete these tests. Believing that Licensee was unable to safely operate a vehicle,
Trooper Laurendeau placed Licensee under arrest for suspicion of DUI. Trooper
Laurendeau stated that he placed Licensee in the back of his patrol car, explained that
Licensee was going to be transported to the PDU, and asked if Licensee would consent
to a blood draw. Trooper Laurendeau indicated that Licensee responded that he would
not consent to the same. After reading Licensee the DL-26 form warning, Trooper
Laurendeau provided Licensee with another opportunity to submit to a blood draw, but
Licensee again refused, responding that he would not consent, and Licensee thereafter
signed the DL-26 form. Trooper Laurendeau identified a copy of the DL-26 form and



                                             3
the form was submitted into evidence without objection.            Trooper Laurendeau
specifically denied that Licensee ever referenced a medical condition or any religious
issues related to his refusals of the requests for a blood draw. (R.R. at 31a-33a.)
             On cross-examination by Licensee, Trooper Laurendeau identified two
reports he prepared regarding the traffic stop, an incident report and a Philadelphia
Police Department arrest report. Trooper Laurendeau acknowledged that the latter
report indicated at the top that Licensee’s vehicle was uninsured but later in the report
stated the opposite. After continued questioning regarding the insurance of the vehicle
and police protocol for towing a vehicle, counsel for DOT objected to Licensee’s line
of questioning on the basis of relevance, noting that the underlying criminal
proceedings had no relevance to a civil suspension hearing. The trial court sustained
the objection, indicating that the only issue before the court related to the request for
the blood draw. (R.R. at 35a-38a.)
             Trooper Laurendeau also conceded that although Licensee was driving
dangerously, he followed Licensee for approximately four miles before initiating the
traffic stop. However, Trooper Laurendeau explained that several factors come into
play when deciding to initiate a stop, including safety, the number of other vehicles on
the road, and the position of the vehicle. Trooper Laurendeau denied any recollection
of asking Licensee to perform a preliminary breath test. Trooper Laurendeau also
denied any recollection of Licensee raising religious issues as the basis for his refusal
to submit to a blood draw. Trooper Laurendeau further denied ever witnessing the
nurse at the PDU providing blood pressure medication to Licensee or him taking the
same. Trooper Laurendeau denied that he advised the nurse at the PDU that a blood
draw could not be done because of Licensee’s faith. On re-cross examination, Licensee
attempted to question Trooper Laurendeau regarding his discretion to choose which



                                            4
type of chemical testing, breath or blood, he may ask for, but counsel for DOT objected
on the basis that case law holds that an officer has the discretion to choose, and the trial
court sustained the objection. Licensee acknowledged law enforcement’s discretion
but indicated that it must be balanced against a constitutional right to freedom of
religion. (R.R. at 39a-42a.)
             Licensee then testified on his own behalf, denying that he was drinking on
the night of the incident or driving erratically. He noted that it was only nine degrees
outside when he was asked to submit to the field sobriety tests and he was lightly
dressed, but that he completed each test. Licensee asserted that he advised Trooper
Laurendeau that a blood draw was against his faith while handcuffed in the back of the
patrol car. Licensee submitted a copy of the tenets of his faith which prohibit the
drawing of blood. Licensee also submitted medical records reflecting his refusal to
have blood drawn for religious reasons. Licensee further alleged that he was asked to
sign the DL-26 form while he was dizzy and disoriented at the nurse’s station in the
PDU and that he signed the form without ever being read the warnings. (R.R. at 42a-
47a.)
             By order dated August 29, 2018, the trial court denied Licensee’s appeal
and directed that the one-year suspension of his operating privilege be reinstated. (R.R.
at 20a.) Licensee thereafter filed a notice of appeal with the trial court. (R.R. at 21a.)
By order dated October 4, 2018, the trial court directed Licensee to file a concise
statement of errors complained of on appeal. (R.R. at 2a.) On October 18, 2018,
Licensee filed his concise statement, alleging that the trial court erred as a matter of
law in denying his appeal. More specifically, Licensee alleged that the trial court erred
and/or abused its discretion by failing to recognize that his refusal to submit to a blood
draw was based on his constitutionally protected religious beliefs, by failing to



                                             5
conclude that Trooper Laurendeau never properly provided him with the O’Connell
warnings,2 and by failing to issue a decision setting forth the reasons underlying its
decision. (R.R. at 22a-28a.)
               The trial court thereafter issued an opinion in support of its order. With
respect to Licensee’s argument concerning his constitutionally protected religious
beliefs, the trial court noted that Licensee never raised his religious objection at or
around the time of his arrest. More specifically, the trial court stated that it found that
Licensee never told Trooper Laurendeau that he objected to the blood draw because of
his religious beliefs, but instead merely refused to have his blood drawn. The trial court
noted that it found the testimony of Trooper Laurendeau more credible than the
testimony of Licensee.3 The trial court also noted that section 1547(a) of the Vehicle
Code, 75 Pa.C.S. §1547(a), deems any person operating a vehicle in this
Commonwealth to have given consent to a chemical test of his breath or blood and
while section 1547(i), 75 Pa.C.S. §1547(i), permits a person under arrest to request
such a test, it is generally the arresting officer who has the discretion to decide which




       2
          Licensee’s reference relates to our Supreme Court’s decision in Department of
Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873 (Pa. 1989), holding that a police
officer has a duty to warn a licensee that the refusal to submit to chemical testing will result in the
suspension of one’s operating privilege and that there is no right to speak to an attorney prior to taking
the test.

       3
          Also, when comparing Licensee’s situation to a federal case relied upon by Licensee, namely
Callahan v. Woods, 658 F.2d 679 (9th Cir. 1981), which upheld a father’s challenge to a regulation
requiring him to obtain a social security number for his daughter before she could obtain public
assistance benefits as violative of the father and daughter’s constitutionally protected religious beliefs,
the trial court noted that the only similarity between the two was that Licensee’s history with DOT
showed a lack of cooperation with DOT and its rules.




                                                    6
test will be administered and there is no right to alternative testing. 4 With regard to
Licensee’s argument that Trooper Laurendeau failed to provide the O’Connell
warnings, the trial court indicated that the credible testimony of Trooper Laurendeau
established that Licensee received the appropriate warnings. Finally, the trial court
stated that its August 29, 2018 order was sufficient and a full opinion addressing
Licensee’s appeal was unnecessary.


                                            Discussion
               On appeal,5 Licensee raises several arguments. First, Licensee argues that
the trial court erred as a matter of law by applying a preponderance of the evidence
standard of review. In the argument section of his brief, Licensee restates this argument
as the trial court’s factual findings were not supported by competent evidence. We
disagree with both of these arguments.
               In order to support a suspension of Licensee’s operating privilege under
section 1547(b)(1) of the Vehicle Code, DOT 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 [l]icensee 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 his operating privileges and would result in

       4
          See Nardone v. Commonwealth, 130 A.3d 738, 751 (Pa. 2015) (holding that a motorist had
no right to request an alternative test to the arresting officer’s preferred test).

       5
         Our scope of review is limited to determining whether the findings of fact are supported by
substantial evidence or whether the trial court committed an error of law or an abuse of discretion in
reaching its decision. Piasecki v. Department of Transportation, Bureau of Driver Licensing, 6 A.3d
1067, 1070 (Pa. Cmwlth. 2010).


                                                  7
             enhanced penalties if he was later convicted of violating
             Section 3802(a)(1).
Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d
30, 34 (Pa. Cmwlth. 2005). The credible testimony of Trooper Laurendeau, coupled
with the certified record admitted before the trial court, which included the DL-26 form
signed by Trooper Laurendeau and Licensee, satisfied DOT’s burden herein.
Moreover, we have previously held that “[d]river’s license suspension proceedings are
civil, not criminal in nature, and DOT must prove the elements of its case by a
preponderance of the evidence, and not beyond a reasonable doubt.”                Sebek v.
Department of Transportation, Bureau of Driver Licensing, 714 A.2d 526, 528 (Pa.
Cmwlth. 1998). Thus, we find no merit to Licensee’s arguments with respect to the
standard of review.
             Next, Licensee argues that the trial court erred by denying him the right
to cross-examine Trooper Laurendeau on certain allegedly relevant facts leading to his
arrest. DOT contends that Licensee waived this argument by failing to raise it below.
We agree with DOT. Licensee’s concise statement of errors complained of on appeal
failed to raise this argument. The law is well-settled that issues not raised in the concise
statement are waived and need not be addressed by this Court.               See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the [Concise] Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”); Kolva v.
Department of Transportation, Bureau of Driver Licensing, 977 A.2d 1248, 1252 (Pa.
Cmwlth. 2009) (“It is clear from reading DOT’s Rule 1925(b) statement of errors that
it failed to raise any challenge regarding its supposed consent to Kolva’s withdrawal
from [Accelerated Rehabilitative Disposition] or regarding federal anti-masking
provisions. Accordingly, these issues are deemed waived and need not be addressed
by this Court.”).


                                             8
             Even if not waived, we note that Licensee’s argument would fail. The
only time that the trial court limited Licensee’s cross-examination of Trooper
Laurendeau was when it sustained the objections of DOT’s counsel to Licensee’s lines
of questioning relating to whether his vehicle was insured and the authority to search
his vehicle, issues that were irrelevant to the current matter of whether Licensee refused
to submit to chemical testing, and whether an officer has discretion to choose which
type of chemical test will be administered, an issue that has been firmly decided by the
case law.
             Next, Licensee essentially argues that the trial court’s finding that he never
asserted his religious beliefs as his reason for refusing to consent to a blood draw was
not supported by the record. We disagree.
             As noted above, the testimony of Trooper Laurendeau, which the trial
court specifically accepted as more credible than the testimony of Licensee, supports
this finding. Trooper Laurendeau specifically denied during his direct-examination
testimony that Licensee ever asserted a religious objection to either of his requests for
a blood draw. The law is well-settled that questions of credibility and the weight to be
assigned to the evidence are within the exclusive province of the trial court. Reinhart
v. Department of Transportation, Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa.
Cmwlth. 2008) (“Determinations as to the credibility of witnesses and the weight
assigned to the evidence are solely within the province of the trial court as fact-
finder.”).
             Moreover, Licensee’s argument in this regard appears to be an attempt to
persuade this Court to reweigh his testimony and documentary evidence, something
this Court cannot do. See Sitoski v. Department of Transportation, Bureau of Driver
Licensing, 11 A.3d 12, 17 (Pa. Cmwlth. 2010) (“Licensee essentially asks this Court to



                                            9
reweigh the evidence, find his evidence credible, and conclude that the Department
failed to establish its burden of proof. However, this Court is not vested with the
authority to do so.”).
             Next, Licensee argues that the trial court abused its discretion and acted
in a biased and prejudicial manner when it found that he had a propensity to be
uncooperative with DOT. Once more, we disagree.
             While the trial court noted that Licensee had a history of “a lack of
cooperation with [DOT] and its rules,” (Trial court op. at 5), the trial court did not rely
on the same in reaching its ultimate decision in this case. The trial court merely
referenced Licensee’s driving history as the only possible comparison between his
situation and a federal case, Callahan, upon which Licensee relied for support of his
argument relating to his constitutionally protected religious beliefs. Instead, the trial
court’s decision was premised upon the credible testimony of Trooper Laurendeau that
Licensee never raised a religious objection to the requested blood draw.
             Finally, Licensee argues that the trial court erred as a matter of law by
failing to consider his constitutional and legal rights as an affirmative defense.
However, in light of the trial court’s finding that Licensee never raised a religious
objection to the requested blood draw, we find no merit to this argument. Because
Licensee never invoked his constitutionally protected right to religious freedom before
Trooper Laurendeau, it was unnecessary for the trial court to further address this issue
in its opinion.
             Accordingly, the order of the trial court is affirmed.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge


                                            10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adeayo Turton,                         :
                  Appellant            :
                                       :    No. 1390 C.D. 2018
            v.                         :
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


                                   ORDER


            AND NOW, this 10th day of July, 2019, the order of the Court of
Common Pleas of Philadelphia County, dated August 29, 2018, is hereby affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
