            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Deborah Sharkey,                              :
                       Appellant              :
                                              :
                v.                            : No. 1543 C.D. 2015
                                              : Submitted: January 22, 2016
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing                    :


BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                              FILED: February 16, 2016


                Deborah Sharkey (Licensee) appeals the order of the Court of
Common Pleas of Montgomery County (trial court) denying her appeal from the
Pennsylvania Department of Transportation, Bureau of Driver Licensing’s
(PennDOT) one-year suspension of her operating privileges for refusing to submit
to chemical testing pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S.
§1547(b),1 in connection with her arrest for driving under the influence (DUI) in

      1
          Section 1547(b)(1)(i) of the Vehicle Code provides, in relevant part:

                (b) Suspension for refusal.—

                        (1) If any person placed under arrest for a violation of
                section 3802 is requested to submit to chemical testing and refuses
(Footnote continued on next page…)
violation of Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. For the reasons
that follow, we affirm.


                                                I.
               On the evening of February 25, 2015, while on routine patrol, Officer
Francis Joseph Cattie, Jr. (Officer Cattie) of the Lower Moreland Township Police
Department observed Licensee’s vehicle stopped in a travel lane with its hazard
signal flashing.      Officer Cattie approached the vehicle and in speaking with
Licensee, detected a strong odor of alcohol and observed that Licensee was
slurring her speech. Licensee advised Officer Cattie that she hit a pothole and
thereby disabled her vehicle. Officer Cattie noticed that both the front and rear
tires of the vehicle were flat and requested that Licensee produce her license,
registration and insurance information. Licensee produced her license and was
asked again for her registration and insurance information. She then produced her
insurance information. She was asked a third time for her registration before she
produced it.




(continued…)

               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:

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

75 Pa. C.S. §1547(b)(1)(i).




                                                2
                  Suspecting Licensee to be under the influence, Officer Cattie asked
Licensee to undergo three field sobriety tests,2 which Licensee failed to
successfully complete. Officer Cattie also administered a pre-arrest breath test.
Based on the foregoing, Licensee was placed under arrest for suspicion of DUI.


                  In the back of Officer Cattie’s patrol vehicle, Officer Cattie read
Licensee the Implied Consent Warnings verbatim and requested that she submit to
a blood test in order to determine her blood alcohol content (BAC). Pursuant to
the Implied Consent Warnings, an officer may choose which test – blood, breath,
or urine – to administer, and Officer Cattie chose the blood test, reading only that
option to Licensee. As Officer Cattie was reading the warnings, Licensee asked if
it was sufficient that she provided a pre-arrest breath test, to which Officer Cattie
responded “no.” Licensee was unwilling to undergo a blood test at that time. She
was then transported to the Lower Moreland Police Department and was read the
Implied Consent Warnings a second time. She again refused to submit to testing
and signed the Implied Consent Warnings form, indicating that she had been
advised of the consequences of refusal and nonetheless refused.


                  As a result, Licensee received notice from PennDOT that her
operating privilege was suspended for a period of one year pursuant to Section
1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1)(i), for refusal to submit
to chemical testing. Licensee appealed the suspension to the trial court.


        2
             Licensee attempted a one-leg stand test, a finger-to-nose test, and a nine-step walk-and-
turn test.




                                                    3
                                          II.
             Before the trial court, Licensee testified that on the evening of her
arrest, she went out for dinner, during which she had two cosmopolitans and half
of a glass of wine, along with bread, soup, meat and potatoes. She testified that
she did not feel intoxicated when she left the restaurant and that two-and-a-half
glasses of alcohol is not normally a lot for her. She stated that when Officer Cattie
requested information from her, she had difficulty finding her license because she
was nervous and her wallet contains approximately 20 different cards. With regard
to Officer Cattie’s multiple requests, she stated that she did not “recall it that way,
but he says that’s the way it was.” (Reproduced Record (R.R.) at 28.)


             Licensee recalled performing the field sobriety test, in heels, and then
giving a breath sample for the pre-arrest breath test. She stated that she did not
remember Officer Cattie reading her the Implied Consent Warnings or signing it,
but that “[t]hat is my signature, though. I did sign it.” (Id. at 32.) She further
testified that she thought she complied with chemical testing by providing a breath
sample and did not think she had to submit to a blood test because she “was
married to a police officer that worked in AID [sic], and gave the … breathalyzer
for years. And never in that time did he ever speak about giving blood to anybody
-- or taking people’s blood.” (Id. at 33.) Licensee admitted to refusing chemical
testing because she did not think she had to give blood.




                                          4
               The trial court denied Licensee’s appeal and reinstated her suspension,
reasoning that PennDOT established its prima facie case3 by showing that: Officer
Cattie arrested Licensee for DUI after he observed her in her vehicle in a travel
lane, detected the smell of alcohol emanating from her vehicle, and conducted
three field sobriety tests that Licensee failed; Officer Cattie read Licensee the
Implied Consent Warnings verbatim, thereby informing her of what would happen
if she failed to submit to a chemical test; and Officer Cattie requested a blood test
from Licensee, which she refused to provide. The trial court was not persuaded by
Licensee’s argument that she thought she had complied with the law when she
provided a breath sample because there is no legal support for such an argument.
Moreover, the trial court emphasized that Officer Cattie read the entirety of the
Implied Consent Warnings to Licensee twice, verbatim, and apprised Licensee of
the consequences of a refusal, and yet she signed the form, indicating her refusal to
submit to a blood test. As such, the trial court concluded that Licensee’s refusal
was knowing and voluntary.




       3
          In cases where PennDOT suspends a driver’s license for refusal to submit to chemical
testing, PennDOT must prove that: 1) the licensee was placed under arrest for DUI by a police
officer who had reasonable grounds to believe that he or she was operating or was in actual
physical control of the movement of the vehicle while under the influence of alcohol; 2) he or
she was requested to submit to chemical testing; 3) he or she was informed that a refusal to
submit to such testing would result in a suspension of his or her operating privileges; and 4) the
licensee refused to submit to the test. Gregro v. Department of Transportation, Bureau of Driver
Licensing, 987 A.2d 1264, 1267 n. 3 (Pa. Cmwlth. 2010).




                                                5
                                              III.
                                               A.
              On appeal,4 Licensee does not deny that PennDOT established its
prima facie case but instead contends that her compliance with the pre-arrest
breath test resulted in her reasonable assumption that she satisfied her obligation to
submit to chemical testing under Section 1547 of the Vehicle Code.


              In Ryan v. Department of Transportation, Bureau of Driver Licensing,
823 A.2d 1101 (Pa. Cmwlth. 2003), a case similar to the instant one, this Court
addressed whether a licensee’s incorrect belief that a pre-arrest breath test is a
sufficient defense for failing to satisfy her obligation to submit to a chemical test
under the Implied Consent Law. In that case, when a licensee failed to provide
enough air for a pre-arrest breath test, the officer received her permission to
administer another pre-arrest breath test using a different model breath test kit.
Based on the results of the second kit, the officer arrested licensee for DUI,
informed her that he was taking her to the hospital for a blood test, and requested
that she consent to the test. At the hospital, the officer read her the Implied
Consent Warnings and again requested that she submit to the blood test. However,
she refused to do so, testifying that, “I told him no because I was asking him why,
like I took all the other tests and I didn’t know if that was really required because I
agreed to both breathalyzers and the field tests.” Id. at 1103 (internal citations


       4
         Our scope of review in a motor vehicle license suspension case is limited to determining
whether the findings of fact are supported by substantial evidence, whether errors of law have
been committed, and whether the trial court’s decision demonstrates a manifest abuse of
discretion. Hewitt v. Commonwealth of Pennsylvania, 541 A.2d 1183, 1184 (Pa. Cmwlth. 1988),
appeal denied, 554 A.2d 511 (Pa. 1989).



                                               6
omitted). The licensee signed the Implied Consent Warnings, acknowledging her
refusal to submit to the test.


             The trial court sustained the licensee’s appeal, finding that she was
confused over her responsibility to submit to the blood test. On appeal, this Court
explained that the Vehicle Code provides two different types of tests: the pre-
arrest breath test and the post-arrest chemical test. Citing Section 1547(k) of the
Vehicle Code, 75 Pa. C.S. §1574(k), we explained that the purpose of the pre-
arrest breath test is “to assist the officer in determining whether or not the person
should be placed under arrest. The preliminary breath test shall be in addition to
any other requirements of this title. … Refusal to submit to the test shall not be
considered for purposes of subsections (b) and (e).” 823 A.2d at 1104 (citations
omitted).


             We distinguished between the pre-arrest breath test and the post-arrest
test, explaining:

                    The second type of test contemplated by the
             Vehicle Code is a test administered after arrest “for the
             purpose of determining the alcoholic content of the
             blood…. ” and implicates the Implied Consent Law. See
             Sections 1457(a) and (b) of the Vehicle Code [75 Pa.
             C.S. §1457(a) and (b)]. Unlike the preliminary breath
             test, refusal to submit to a post-arrest test to determine
             the alcoholic content of the blood under the Implied
             Consent Law can result in license suspension.

                                        ***

                   Courts take a different approach to a licensee’s
             responsibilities where the first test is a pre-arrest


                                         7
             preliminary breath test and the second test is a post-arrest
             test under the Implied Consent Law.               Appeal of
             Attleberger, 136 Pa. Cmwlth. 329, 583 A.2d 24 (1990).
             In Attleberger, a licensee performed poorly on field
             sobriety tests, and a preliminary breath test at the scene
             of the traffic stop resulted in a reading of .168 percent.
             The licensee was placed under arrest and taken to a
             medical center for a blood test. He questioned why he
             should take another test, and he refused to have blood
             drawn. On appeal after the trial court upheld the
             suspension of his license, the licensee contended that he
             deserved protection from confusion as to his
             responsibility to submit to repeated tests. . . . This Court
             sitting en banc specifically declined to protect the
             licensee from self-created confusion which arose from
             his wrongful assumptions of the law and not from any
             statement by the police officer. See also Kromelbein v.
             Commonwealth, 161 Pa. Cmwlth. 532, 637 A.2d 728
             (1994); Wall.


823 A.2d at 1104-05 (emphasis in original). We concluded that the licensee’s
confusion was not a defense for failing to submit to a blood test, explaining that
compliance with a pre-arrest breath test does not preclude administration of the
post-arrest chemical test to determine BAC, and that any confusion as to licensee’s
responsibility to submit to the blood test “arose not from statements made by the
police officer but solely from Licensee’s ‘self-induced and self-destructive
confusion about what the law is or should be.’” Id. at 1105 (citation omitted).


             Based on the foregoing, Licensee’s incorrect belief that her
compliance with the pre-arrest breath test satisfied her obligation to submit to a
blood test is not a valid defense. Furthermore, even if she was confused as to her
responsibilities under the Implied Consent Law, her misunderstandings should
have been quelled after she asked Officer Cattie, during his first reading of the


                                          8
Implied Consent Warnings, whether the pre-arrest breath test could take the place
of the blood test, to which he replied “no.” This Court cannot protect Licensee
from her “self-induced and self-destructive confusion” about the law. Id.


                                          B.
             Next, relying on Solomon v. Department of Transportation, Bureau of
Driver Licensing, 982 A.2d 61 (Pa. 2009), Licensee argues that she was not given
a “meaningful opportunity” to comply with her chemical testing obligation because
she did not explicitly refuse chemical testing as she submitted to the breath test and
she should not be penalized simply because she was not informed that she could
only submit to the test desired by Officer Cattie.


             Licensee’s reliance on Solomon is misplaced. In Solomon, after a
licensee was read the Implied Consent Warnings, he “responded ‘[g]o f* * *
yourself, and do what you’ve got to do,’” which the officer interpreted as a refusal
to submit to testing. Id. at 641. This Court found that PennDOT failed to prove
that the licensee was “offered a meaningful opportunity to comply,” reasoning:

             Although [licensee’s] expletives were inappropriate, his
             response as a whole was certainly ambiguous and not an
             explicit refusal. [Licensee’s] response could have been
             fairly taken to mean go ahead with the chemical test. The
             officer should have made an attempt at that point to
             confirm whether [Licensee] would submit to testing.
             Instead, the officer escorted him out of the room and
             immediately deemed a refusal.


Id. at 643 (emphasis added).



                                          9
             Our Supreme Court has held that “anything substantially less than an
unqualified, unequivocal assent” to submit to testing constitutes a refusal to do so.
Department of Transportation v. Renwick, 669 A.2d 934, 939 (Pa. 1996).
“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.
Department of Transportation, Bureau of Driver Licensing, 103 A.3d 432, 440
(Pa. Cmwlth. 2014) (citations omitted). Whether a licensee’s conduct constitutes a
refusal to submit to chemical testing is a question of law fully within this Court’s
discretion to review. Id. Where an officer has read a licensee the Implied Consent
Warnings twice, he or she is deemed to have had a “meaningful opportunity” to
submit to chemical testing. See id. at 441.


             Here, unlike in Solomon, Licensee was given two separate
opportunities to consent to a blood test.      She was read the Implied Consent
Warnings twice and was requested both times to submit to a blood test, but she
refused to do so each time despite knowing the consequences of her refusal.
Moreover, she signed the Implied Consent Warnings form, indicating her refusal to
consent to a blood test. Officer Cattie was under no further obligation to convince
Licensee to take the blood test; he provided her with sufficient meaningful
opportunity, which she chose to reject.


                                          C.
             Finally, Licensee argues that the Implied Consent Warnings are
deficient as they do not inform a licensee that completing the pre-arrest breath test
does not satisfy one’s obligation under the Implied Consent Law.



                                          10
             However, it is well settled that the warnings contained in the Implied
Consent Warnings are sufficient as a matter of law to advise a licensee of his or her
rights under the Implied Consent Law and that they “contain[ ] sufficient
information upon which a licensee can base a decision as to whether to submit to
testing.” McKenna v. Department of Transportation, Bureau of Driver Licensing,
81 A.3d 79 (Pa. 2013). Moreover, as our Supreme Court held, once an officer
provides a licensee with the Implied Consent Warnings, the officer “has done all
that is legally required to ensure that the [licensee] has been fully advised of the
consequences of refusing to submit to chemical testing.”              Department of
Transportation, Bureau of Driver Licensing v. Scott, 684 A.2d 539, 546 (Pa. 1996).


             Licensee was read the Implied Consent Warnings twice and during
one of the readings, she was explicitly advised that her pre-arrest breath test would
not satisfy her legal obligation. She made her decision to refuse a blood test
knowing full well the ramifications of her refusal.


             Accordingly, the order of the trial court is affirmed.



                                       ____________________________________
                                       DAN PELLEGRINI, Senior Judge




                                         11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Deborah Sharkey,                    :
                      Appellant     :
                                    :
            v.                      : No. 1543 C.D. 2015
                                    :
Commonwealth of Pennsylvania,       :
Department of Transportation,       :
Bureau of Driver Licensing          :




                                  ORDER


            AND NOW, this 16th day of February, 2016, the order of the Court of
Common Pleas of Montgomery County dated August 17, 2015, at No. CP-2015-
10587, is affirmed.



                                    ____________________________________
                                    DAN PELLEGRINI, Senior Judge
