           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philip Bryce Griffith,                          :
                               Appellant        :
                                                :
                       v.                       :    No. 636 C.D. 2015
                                                :    Submitted: October 9, 2015
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing                      :

BEFORE:         HONORABLE BERNARD L. McGINLEY, Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                FILED: November 18, 2015

                Philip Bryce Griffith (Licensee) appeals from an order of the Court of
Common Pleas of Cambria County (trial court)1 that denied his statutory appeal
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
The Department of Transportation, Bureau of Driver Licensing (PennDOT)
suspended his operating privileges for refusing a blood test. Licensee contends the
trial court abused its discretion by crediting the arresting officer’s testimony. He
also asserts the trial court erred in concluding he had a meaningful opportunity to
comply with the statute. Discerning no error below, we affirm.

       1
           The Honorable F. Joseph Leahey, Senior Judge, 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)(i).
                                          I. Background
               PennDOT notified Licensee of the one-year suspension of his operating
privilege as a consequence of refusing to submit to chemical testing after his arrest
for driving under the influence (DUI). Licensee timely appealed to the trial court.


               The trial court held a de novo hearing at which Officer Eric Yackulich
(Officer) of the Ferndale Borough Police Department testified on behalf of PennDOT
as follows. Officer stopped Licensee after observing his vehicle speeding, crossing
the center line of the road twice, and swerving between the center and fog lines.
While stopped, Officer smelled intoxicant in the vehicle, and he noted Licensee’s
speech “was a little slurred.” Reproduced Record (R.R.) at 76a. Licensee admitted
he had a couple of drinks. Officer administered field sobriety testing to Licensee,
which he failed. Officer then transported Licensee to the hospital for a blood test.


               Officer testified he read the chemical test warnings on PennDOT Form
DL-263 (Warning) to Licensee twice. The first time he read “[l]ine one through
line four” to Licensee “[v]erbatim word for word.” R.R. at 81a. “The second time
actually following with my pen[,] allowing [Licensee] to follow with his eyes.” Id.
Although Licensee requested to read the Warning himself, Officer did not allow
him to do so. Id. at 80a. When Officer asked Licensee if he would comply with
chemical testing, Licensee responded “he was losing his license for 12 months so it
didn’t matter, he was refusing.” Id.

       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).



                                                   2
             On cross-examination, Licensee’s counsel questioned Officer about
his testimony during the preliminary hearing before the magisterial district judge
on the DUI charges. Specifically, he read portions of the preliminary hearing
transcript (Preliminary Hearing Transcript) into the record, asking Officer to
explain the discrepancy in his testimony. Officer explained he mistakenly testified
at the preliminary hearing that Licensee did not ask to read the Warning himself;
the mistake occurred because Officer was unable to consult his police report while
testifying. Id. at 90a.


             In rebuttal, Licensee testified he “[didn’t] think [Officer] read me the
warning. I think what happened was he summarized his interpretation of the
consequences that were set forth in that document. He definitely did not read it to
me a second time.” Id. at 93a. Licensee testified that he advised Officer he did not
understand the Warning, and so he wanted to read it himself.          He explained
because “[he was not] able to read it[,] I refused to sign it.” Id. at 94a. When the
trial court sought confirmation as to whether Licensee advised Officer he was
going to lose his license for a year, Licensee conceded he said that to Officer. Id.
at 95a.


             Ultimately, based on the evidence presented at the hearing, the trial
court denied Licensee’s appeal. Licensee appealed to this Court.


             In response to Licensee’s concise statement of the errors complained
of on appeal, the trial court issued an opinion pursuant to Pa. R.A.P. 1925(a). The




                                         3
trial court credited Officer’s testimony regarding his explanation of the Warning.
Specifically, the trial court explained:

             Although [Licensee] attacks [Officer’s] credibility, the trial
             court, as the sole finder of fact, considered [Officer’s]
             explanation (regarding the discrepancy of whether [Licensee]
             asked to read the form) credible because he testified at the
             Preliminary Hearing without his report. See [Tr. Ct. Hr’g,
             Notes of Testimony, 3/16/15,] at 21. Additionally, [Licensee]
             did not provide a transcript from that hearing and thus, the
             trial court could not determine the context of the attacked
             testimony. Regardless, whether [Licensee] asked to read the
             warnings is irrelevant. Like the reasoning in McNulty [v.
             Department of Transportation, Bureau of Driver Licensing,
             629 A.2d 278 (Pa. Cmwlth. 1993)] [Licensee] was not entitled
             to read the warnings to himself. Again, [Officer] met his duty
             by conveying the warnings to him. Ultimately, [Licensee]
             conceded that he knew the consequences of refusal.
             Therefore, the trial court properly found [Licensee] was fully
             aware of the required warnings.

Tr. Ct., Slip Op., 6/11/15, at 6-7 (underlined emphasis added). The trial court
reasoned Officer did not need to ensure Licensee understood the Warning. Based
on Officer’s credited testimony and Licensee’s concessions, the trial court
concluded Licensee “received the warnings, understood the warnings, and refused
chemical testing” in violation of the Implied Consent Law. Id. at 6.


             When Licensee filed his reproduced record with this Court, he
included a copy of the Preliminary Hearing Transcript. Although the Preliminary
Hearing Transcript was available and Licensee’s counsel consulted it during cross-
examination, counsel did not attempt to admit the transcript into the record before
the trial court.   PennDOT filed a motion to strike the Preliminary Hearing
Transcript from the reproduced record.         After a telephonic argument, the


                                           4
undersigned granted the motion, striking that portion of the reproduced record.
The matter is now before us for disposition.


                                      II. Discussion
              On appeal,4 Licensee argues Officer did not afford Licensee a
meaningful opportunity to submit to chemical testing. Primarily, he challenges the
trial court’s credibility determination as to Officer’s testimony about the Warning.
He also asserts Officer did not discharge his duty under the Implied Consent Law
because he did not allow Licensee to read the Warning for himself, and he did not
ensure Licensee understood the repercussions of refusal.


              Initially, we note, the issue of whether a licensee refused chemical
testing is one of law, based on the facts as found by the trial court. Tullo v. Dep’t
of Transp., Bureau of Driver Licensing, 837 A.2d 605 (Pa. Cmwlth. 2003). 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).


              To sustain a license suspension under the Implied Consent Law,
PennDOT must establish a licensee: (1) was arrested for a violation of 75 Pa. C.S.
§3802 (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

       4
        Our review is limited to determining whether the trial court committed error of law or
abused its discretion, and whether necessary findings of fact were supported by competent
evidence. Piasecki v. Dep’t of Transp., Bureau of Driver Licensing, 6 A.3d 1067 (Pa. Cmwlth.
2010).



                                              5
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 satisfies this burden, the burden
shifts to the licensee to prove his refusal was not knowing or conscious, or 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); Dep’t of Transp., Bureau of Traffic
Safety v. O’Connell, 555 A.2d 873 (Pa. 1989); Broadbelt.


                                   A. Credibility
             Licensee contends the trial court erred in crediting Officer’s testimony.
He asserts the inconsistencies between his testimony at the de novo hearing and his
testimony at the preliminary hearing constitute grounds to reject Officer’s
testimony in its entirety.


             Determinations as to the credibility of witnesses and the weight
assigned to their testimony are solely within the province of the fact-finder. Millili
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). “Because
questions of credibility are for the trial court to resolve, and not this Court, we may



                                          6
not reverse the trial court’s order on the ground that it erroneously accepted and
relied upon the testimony of [Officer].” McGee v. Dep’t of Transp., Bureau of
Driver Licensing, 803 A.2d 255, 258-59 (Pa. Cmwlth. 2002); see also Sitoski v.
Dep’t of Transp., Bureau of Driver Licensing, 11 A.3d 12 (Pa. Cmwlth. 2010).


              Here, at the de novo hearing, Licensee attempted to discredit Officer.
To that end, Licensee’s counsel read portions of the Preliminary Hearing
Transcript into the trial court record to show inconsistencies in Officer’s
testimony.5 Specifically, Officer testified at the preliminary hearing that Licensee
did not ask to read the Warning, which was contrary to his testimony at the de novo
hearing. However, Officer addressed this discrepancy on cross-examination, and
the trial court credited Officer’s explanation. Accordingly, Licensee’s attempts to
impeach with a prior inconsistent statement were unsuccessful.


              In fact, the trial court resolved all conflicts in testimony against
Licensee. The trial court explicitly credited Officer’s testimony and explained why
it rejected Licensee’s testimony.            The trial court characterized Licensee’s
testimony regarding the alleged inadequacy of the warnings as “self-serving.” Tr.
Ct., Slip Op. at 6.




       5
          Because the Preliminary Hearing Transcript is stricken, and was not part of the
evidentiary record before the trial court, we do not consider it. Millili v. Dep’t of Transp.,
Bureau of Driver Licensing, 745 A.2d 111 (Pa. Cmwlth. 2000). However, we may consider
those parts of the Preliminary Hearing Transcript that were read into the trial court record. Id.



                                               7
            Licensee essentially asks this Court to reweigh the evidence.
However, we cannot do so.       Gammer v. Dep’t of Transp., Bureau of Driver
Licensing, 995 A.2d 380 (Pa. Cmwlth. 2010).


            We discern no abuse of discretion in the trial court’s decision to credit
Officer’s testimony over that of Licensee. “Thus, we must determine the issue of
whether [Licensee] refused chemical testing ‘under the facts found by the trial
court [and] not under the testimony [Licensee] prefers.’” Reinhart, 954 A.2d at
765-66 (quoting McDonald v. Dep’t of Transp., Bureau of Driver Licensing, 708
A.2d 154, 156 (Pa. Cmwlth. 1998)).


                               B. Comprehension
            Licensee also asserts he did not have a meaningful opportunity to
comply with the chemical testing. He claims he did not fully understand the
consequences of refusal because he did not have the opportunity to read the
Warning himself.    Licensee also contends the Officer had a duty to ensure
Licensee comprehended the Warning. These arguments lack merit.


            Officer’s sole duty was to inform Licensee of the consequences of
refusing to submit to a chemical test. Broadbelt. Our Supreme Court holds the
warnings set forth on PennDOT’s DL-26 Form meet the requirements of the Implied
Consent Law. Dep’t of Transp., Bureau of Driver Licensing v. Weaver, 912 A.2d
259 (Pa. 2006). According to the facts found by the trial court, Officer read the
Warning to Licensee twice. See Tr. Ct., Slip Op. at 6. Thus, Officer discharged
his statutory duty. Weaver.



                                         8
               Further, Officer had no duty to ensure Licensee understood the
consequences of refusal.          McKenna v. Dep’t of Transp., Bureau of Driver
Licensing, 72 A.3d 294 (Pa. Cmwlth. 2013); Broadbelt; Martinovic v. Dep’t of
Transp., Bureau of Driver Licensing, 881 A.2d 30 (Pa. Cmwlth. 2005). This Court
holds “confusion over issues other than Miranda6 rights does not negate a refusal
based upon that confusion” because “[i]t is impractical to require officers to
explain every conceivable point which may confuse a motorist ….” McNulty v.
Dep’t of Transp., Bureau of Driver Licensing, 629 A.2d 278, 282 (Pa. Cmwlth.
1993) (reasoning officer was not required to allow licensee to read statute before
refusing chemical testing).


               Essentially, Licensee argues his refusal was reasonable because he
was not permitted to read the Warning himself. Licensee cites no requirement in
statute or case law that an officer is required to permit a licensee to read the
Warning before executing a knowing refusal. In fact, Licensee concedes that
under McNulty, he was not entitled to read the Warning himself. See Appellant’s
Br. at 19.


               In McNulty, the licensee argued he had a right to read a cited section
of the Vehicle Code prior to submitting to a blood test. There, the licensee asked
to read the section in order to clarify his confusion.        Similar to Licensee’s
argument here, he asserted “unless the police attempt[ed] to clarify his confusion,
any refusal to submit to the chemical test is vitiated.” Id. at 281. We disagreed,
reasoning an officer does not have an obligation to ensure a licensee’s

      6
          Miranda v. Arizona, 384 U.S. 436 (1966).



                                               9
comprehension of the consequences of refusal when issuing the warning. Id.
We explained a licensee’s confusion does not excuse his refusal to submit to
chemical testing.


             Applying McNulty here, Officer was not required to allow Licensee to
read the Warning for himself as a prerequisite for consenting to chemical testing.
Officer’s reading of the Warning sufficed.


             Nevertheless, accepting for sake of argument Licensee’s testimony
that Officer summarized rather than read the Warning, it would not alter the result
here.


             There is no statutory requirement that an officer’s warning contain
any specific wording. This Court holds that paraphrasing of the Warning may
suffice. See Podgurski v. Dep’t of Transp., Bureau of Driver Licensing, 654 A.2d
232 (Pa. Cmwlth. 1995) (where officer paraphrased language on DL–26 Form,
informing licensee her driver’s license would be suspended if she refused testing,
but did not state suspension would be for a year, warning was adequate); see also
Kennedy v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 2308
C.D. 2012, filed May 24, 2013) (unreported), 2013 WL 3156635, at *3 (citing
Podgurski). Our Supreme Court affirmed this Court’s holding that a warning is
legally sufficient if it informs the licensee that refusing a request for chemical
testing means that he “will be in violation of the law and will be penalized for that
violation.” Weaver, 912 A.2d at 261 (citing Weaver v. Dep’t of Transp., Bureau of
Driver Licensing, 873 A.2d 1, 3 (Pa. Cmwlth. 2005)).



                                         10
            Here, Licensee conceded Officer summarized the consequences of
refusal. Licensee also confirmed Officer advised that refusal may result in a 12-
month suspension. R.R. at 95a. Thus, Licensee was aware of the consequences of
refusal at the time he refused chemical testing. That is all the law requires.
Weaver. As a result, the trial court did not err in finding Officer’s warning
adequate to advise Licensee of the consequences of refusal. Id.; Broadbelt.


            Based on the credited evidence, PennDOT met its prima facie burden.
Licensee did not establish that he was not capable of making a knowing refusal.
Therefore, the suspension was proper.


                                 III. Conclusion
            For the foregoing reasons, we affirm the order of the trial court.




                                        ROBERT SIMPSON, Judge




                                         11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philip Bryce Griffith,                 :
                         Appellant     :
                                       :
                   v.                  :   No. 636 C.D. 2015
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :



                                     ORDER

             AND NOW, this 18th day of November, 2015, the order of the Court
of Common Pleas of Cambria County is AFFIRMED.




                                      ROBERT SIMPSON, Judge
