        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kathleen Starck,                         :
                         Appellant       :
                                         :
            v.                           :   No. 523 C.D. 2018
                                         :   Submitted: November 15, 2019
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Driver Licensing               :


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


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                         FILED: January 17, 2020


            Appellant Kathleen Starck (Licensee) appeals from an order of the
Court of Common Pleas of Luzerne County (trial court), dated March 8, 2018. The
trial court’s order denied Licensee’s appeal and reinstated Licensee’s license
suspension. For the reasons discussed below, we affirm the trial court’s order.
            By letter with a mailing date of October 24, 2017, the Commonwealth
of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
(Bureau) notified Licensee that, effective November 28, 2017, her operating
privilege would be suspended for one year pursuant to Section 1547(b)(1)(i) of the
Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i),1 commonly referred to as the Implied
Consent Law. (Supplemental Original Record (S.O.R.), Item No. 1 at 3.) On
November 22, 2017, Licensee appealed to the trial court the Bureau’s decision to
suspend her operating privilege for a period of one year. (Id. at 1.) The trial court,
thereafter, held a de novo hearing in order to determine the validity of Licensee’s
appeal. (Original Record (O.R.), Item No. 17; Tr. of March 5, 2018 hearing, attached
to Licensee’s Br. as App. C.)
               At the hearing, a police officer with the Dallas Borough Police
Department, Officer David Rinehimer (Officer Rinehimer), testified regarding his
encounter with and eventual arrest of Licensee. Officer Rinehimer testified that on
July 21, 2017, he observed Licensee driving into the lane reserved for oncoming
traffic and causing a vehicle in the opposing lane to “slow significantly, take an
evasive action, and drive onto the curbing . . . on the sidewalk.”                           (Tr. of
March 5, 2018 hearing, attached to Licensee’s Br. as App. C at 4.)                           Officer
Rinehimer signaled for Licensee to stop her vehicle shortly thereafter, and Licensee
complied after some time. (Id. at 5.) Officer Rinehimer approached the vehicle, and
Licensee rolled down her window. (Id.) At that point, Officer Rinehimer smelled
“an intoxicating beverage” emanating from inside the vehicle. (Id. at 5-6.) Officer
Rinehimer then asked Licensee to complete certain field sobriety tests, and Licensee

      1
          Section 1547(b)(1)(i) of the Vehicle Code provides:
      (b) Civil penalties for refusal.--
               (1) If any person placed under arrest for a violation of [S]ection 3802 [of
               the Vehicle Code, relating to driving under the influence,] is requested to
               submit to chemical testing and 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 as follows:
                       (i) Except as set forth in subparagraph (ii), for a period of 12 months.

                                                  2
could not complete them. (Id. at 6-7.) At that point, Officer Rinehimer arrested
Licensee on suspicion of driving under the influence (DUI) of alcohol and offered
Licensee a preliminary breath test, which Licensee refused. (Id. at 8.) Thereafter,
Officer Rinehimer transported Licensee to the Wilkes-Barre Police Station and then
to the Luzerne County DUI Center where he turned custody of Licensee over to
Sergeant Joe Ziegler (Sergeant Ziegler), who also testified at the hearing. (Id.)
             Sergeant Ziegler testified that he is employed on a full-time basis by
Wilkes-Barre City Police, but he also works for the Luzerne County DUI Center.
(Id. at 4.) He testified that when Licensee arrived at the Luzerne County DUI Center,
he asked Licensee to take a chemical test by reading to Licensee an intake form from
the DUI Center.     (Id. at 11.)   When Licensee refused, Sergeant Ziegler read
Licensee—verbatim—the chemical testing warnings required by Section 1547(b) of
the Vehicle Code, as they appear on the DL-26 Implied Consent Form. (Id. at 11-12;
O.R., Item No. 19 at 2.) Licensee again refused to give her consent, and Sergeant
Ziegler, once more, provided her with another opportunity to consent to chemical
testing by summarizing the penalties he just read to her and asking for her consent a
third time. (Tr. of March 5, 2018 hearing, attached to Licensee’s Br. as App. C
at 12.)   Licensee responded to Sergeant Ziegler succinctly, simply stating,
“negative.” (Id.)
             Licensee testified at the hearing on her own behalf and explained that,
at the time of the incident, she “was in complete crisis and mental duress” because
she was in the process of securing a temporary protection from abuse order from her
partner. (Id. at 17.) Licensee also admitted that she had been drinking prior to her
arrest that evening. (Id. at 18.) After the hearing concluded, the trial court issued
an order, denying Licensee’s appeal and reinstating the license suspension. (S.O.R.,


                                          3
Item No. 5.) The trial court issued a memorandum in support of its order, which
explained the reasons behind the trial court’s decision. (Memorandum, attached to
Licensee’s Br. as App. B.) In its memorandum, the trial court concluded that
Licensee did not successfully prove that she could not physically take the chemical
test or lacked the capability to make a knowing and conscious refusal. (Id. at 4.)
Officer Rinehimer’s and Sergeant Ziegler’s testimony concerning Licensee’s
express refusal to consent to chemical testing provided sufficient proof that Licensee
had the capability to, and did in fact, provide a knowing and conscious refusal to
submit to chemical testing. (Id.) Licensee then appealed the matter to this Court.
               On appeal,2 Licensee contends that the trial court committed an error of
law in concluding that Licensee made a knowing and conscious refusal to submit to
chemical testing and reinstating Licensee’s license suspension. In response, the
Bureau contends that the trial court did not err in concluding that Licensee made a
knowing and conscious refusal to submit to chemical testing.
               In order to uphold the suspension of a licensee’s operating privilege
under Section 1547 of the Vehicle Code, the Bureau must establish that the licensee:
               (1) was arrested for DUI by a police officer with
               reasonable grounds to believe the licensee was operating a
               vehicle while under the influence of alcohol or a controlled
               substance; (2) was requested to submit to chemical testing;
               (3) refused to submit to chemical testing; and, (4) was
               warned by the officer that her license will be suspended if
               she refused to submit to chemical testing.

Park, 178 A.3d at 280. “Once [the Bureau] satisfies this burden, the burden shifts
to the licensee to prove she was physically incapable of performing the test or that
       2
          This Court’s review in license suspension matters “is limited to determining whether the
trial court’s necessary findings of fact were supported by substantial evidence and whether the trial
court committed an error of law or otherwise abused its discretion.” Park v. Dep’t of Transp.,
Bureau of Driver Licensing, 178 A.3d 274, 279 n.2 (Pa. Cmwlth. 2018).

                                                 4
her refusal was not knowing and conscious.” Id. Where the licensee has not
sustained an injury so serious that it is apparent the licensee is unable to comply with
a request for chemical testing, the licensee may establish the requisite incapacity by
competent medical testimony. Gombar v. Dep’t of Transp., Bureau of Driver
Licensing, 678 A.2d 843, 847 (Pa. Cmwlth. 1996). “However, if a [licensee’s]
inability to make a knowing and conscious refusal of testing is caused, in whole or
in part, by the consumption of alcohol, the [licensee’s] affirmative defense fails.”
Id.
             Here, neither party disputes the fact that the Bureau has met its initial
burden for sustaining Licensee’s license suspension. The sole question before this
Court is whether the trial court erred in concluding that Licensee made a knowing
and conscious refusal to submit to chemical testing. Licensee contends that she
could not knowingly and consciously refuse chemical testing because she
experienced mental distress due to her ongoing efforts to secure a protection from
abuse order against her partner. We are sympathetic to the well-documented fact
that various traumas often arise with cases of domestic abuse. In cases such as this
one, however, where a licensee alleges that a non-apparent injury prevented her from
knowingly and consciously refusing chemical testing, our case law requires the
licensee to provide competent medical evidence of that injury. Gombar, 678 A.2d
at 847. Licensee did not suffer, nor did she allege that she suffered, an injury so
serious that she could not knowingly and consciously refuse to partake in the
chemical test. Because Licensee claimed to suffer a type of psychological injury, as
opposed to an apparent physical one, Licensee was required to provide competent
medical evidence to support her contention that she was under such psychological
distress that she could not provide the requisite consent to chemical testing. Without


                                           5
such evidence, Licensee could not meet her burden to prove that she was incapable
of providing a knowing and conscious refusal of chemical testing. Accordingly, the
trial court did not commit an error of law in concluding that Licensee failed to meet
her burden to prove she did not knowingly and consciously refuse chemical testing.
             Based on the above discussion, we affirm the trial court’s order.




                                         P. KEVIN BROBSON, Judge




                                         6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kathleen Starck,                      :
                        Appellant     :
                                      :
            v.                        :   No. 523 C.D. 2018
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing            :



                                    ORDER


            AND NOW, this 17th day of January, 2020, the order of the Court of
Common Pleas of Luzerne County, dated March 8, 2018, is AFFIRMED.




                                      P. KEVIN BROBSON, Judge
