            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Andrew Factor,                            :
                       Appellant          :
                                          :
               v.                         :
                                          :
Commonwealth of Pennsylvania,             :
Department of Transportation,             :   No. 163 C.D. 2018
Bureau of Driver Licensing                :   Argued: November 15, 2018



BEFORE:        HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION
BY JUDGE FIZZANO CANNON                       FILED: December 6, 2018


               Andrew Factor (Licensee) appeals from the January 11, 2018 order of
the Court of Common Pleas of Montgomery County (trial court) denying his
statutory appeal from a 12-month driver’s license suspension imposed by the
Pennsylvania Department of Transportation, Bureau of Driver Licensing (DOT),
pursuant to the Vehicle Code’s Implied Consent Law, 75 Pa. C.S. § 1547(b) (Implied
Consent Law), as a result of Licensee’s refusal to submit to chemical testing upon
his arrest for driving under the influence of alcohol or a controlled substance (DUI).1
Upon review, we affirm.
               While traveling northbound in a marked police vehicle on a two-lane
road at approximately 9:15 p.m. on the night of November 11, 2016, Upper Merion
Township police officer Brian Manion observed Licensee’s vehicle cross the road’s

      1
          75 Pa. C.S. § 3802.
double yellow center line as it approached in the opposite lane of traffic, requiring
Officer Manion to move his vehicle into the emergency lane on his side of the road.
Notes of Testimony (N.T.) 11/13/2017 at 3-4, 13, 15. Once Licensee’s vehicle
passed his patrol car, Officer Manion made a U-turn, caught up to, and followed
Licensee’s vehicle. Id. at 4, 15. After observing Licensee’s vehicle cross the center
line two more times, Officer Manion engaged his emergency lights and siren and
initiated a traffic stop. Id. at 4, 15-16.
               After stopping the vehicle, Officer Manion approached the vehicle on
the passenger’s side and made contact with Licensee. N.T. 11/13/2017 at 5.
Licensee rolled down his window and Officer Manion immediately detected a strong
odor of alcohol emanating from Licensee’s breath. Id. at 5, 17. Officer Manion also
observed Licensee’s eyes were glassy and his speech was slurred. Id. at 5, 21.
Licensee told Officer Manion that he was going home, but he was not sure from
where he was coming.2 Id. at 5. Officer Manion collected Licensee’s license,
registration, and insurance information and returned to his patrol vehicle, where he
called for backup. Id. at 17-18.
               Once the requested backup arrived, Officer Manion asked Licensee to
alight from his vehicle and perform three field sobriety tests. N.T. 11/13/2017 at 5,
18. After Officer Manion demonstrated the field sobriety tests, Licensee attempted
but failed to satisfactorily perform all three.3 Id. at 5-6. Based on Licensee’s


       2
        Licensee also told Officer Manion that he was traveling from Philadelphia, although he
was actually traveling toward Philadelphia when stopped. N.T. 11/13/2017 at 5.
       3
          Officer Manion had Licensee say the alphabet and perform the one-leg stand and balance
test and the nine-step walk-and-turn test. N.T. 11/13/2017 at 5-6, 18. Licensee failed the alphabet
exercise by stopping after reaching the letter V. Id. at 19. He failed the one-leg balance test by
dropping his foot to the ground eight times and failing to keep his arms at his side as instructed.

                                                2
performance on the field sobriety tests, Officer Manion administered a portable
breath test (PBT). Id. at 6, 20. The PBT registered Licensee’s blood alcohol content
at 0.20%, above the legal limit of 0.08%. Id. at 6-7, 20.
              After Licensee failed the field sobriety tests and the PBT, Officer
Manion took him into custody for DUI and placed him in the back seat of his patrol
vehicle. N.T. 11/13/2017 at 7. Once Licensee was in the back of the patrol vehicle,
Officer Manion read him the entire DOT DL-26B Request for Chemical Testing
form (DL-26B form) verbatim and requested that Licensee consent to chemical
testing. Id. at 7-8, 22. Licensee refused to submit to chemical testing. Id. at 8, 23-
24. Following Licensee’s refusal to consent to chemical testing, Officer Manion
transported Licensee back to the police station for processing. Id. at 11, 26.
              On December 14, 2015, following his conviction for DUI, DOT mailed
Licensee a letter notifying him that, as a result of his refusal to submit to chemical
testing on November 11, 2016, his license would be suspended pursuant to the
Implied Consent Law for 12 months, effective January 25, 2017. See License
Suspension Hearing Exhibit C-1. Licensee appealed and the trial court conducted a
hearing on Licensee’s license suspension appeal on November 13, 2017. See N.T.
11/13/2017. On January 11, 2018, following the hearing and briefing by the parties,
the trial court entered its order denying Licensee’s appeal. See Trial Court Order
dated January 11, 2018. On January 22, 2018, Licensee filed a timely notice of
appeal to this Court.4


Id. at 20. Licensee failed the walk-and-turn test by losing his balance four times and failing to
walk heel-to-toe in a straight line as directed. Id.
       4
         “Our standard of review in a license suspension case 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 an abuse of discretion.” Negovan v. Dep’t of Transp., Bureau of
Driver Licensing, 172 A.3d 733, 735 n.4 (Pa. Cmwlth. 2017).
                                               3
             Licensee raises two claims in this appeal. First, Licensee claims that
the trial court’s finding that Licensee refused chemical testing was not supported by
competent evidence. See Licensee’s Brief at 4. Second, Licensee alleges that license
suspensions imposed pursuant to Pennsylvania’s Implied Consent Law are punitive
and not civil in nature and therefore unconstitutional under Birchfield v. North
Dakota, __ U.S. __, 136 S. Ct. 2160 (2016). Id. at 4.
             Licensee first argues that the trial court erred in holding that Licensee
refused the request that he submit to chemical testing because Officer Manion could
not recall the exact words of Licensee’s refusal in his testimony. See Licensee’s
Brief at 11-12. We disagree.
             Initially, we note:

             To sustain a license suspension under [the Implied
             Consent Law], DOT has the burden of establishing that (1)
             the licensee was arrested for drunken driving by a police
             officer having reasonable grounds to believe that the
             licensee was driving while under the influence, (2) the
             licensee was requested to submit to a chemical test, (3) the
             licensee refused to do so and (4) the licensee was warned
             that refusal would result in a license suspension. Once
             DOT meets this burden, the burden shifts to the licensee
             to establish that he or she either was not capable of making
             a knowing and conscious refusal or was physically unable
             to take the test.

Giannopoulos v. Dep’t of Transp., Bureau of Driver Licensing, 82 A.3d 1092, 1094
(Pa. Cmwlth. 2013) (quoting Wright v. Department of Transp., Bureau of Driver
Licensing, 788 A.2d 443, 445 (Pa. Cmwlth. 2001)). In the instant matter, Licensee
does not challenge that he was driving the vehicle, that police had probable cause
upon which to arrest him and request that he submit to chemical testing, or that the


                                          4
police read him the DOT DL-26B form that warned that refusal would result in a
license suspension. Thus, we need only concern ourselves with whether Licensee
refused to submit to the requested chemical testing.
               “The question of whether a licensee refuses to submit to a chemical test
is a legal one, based on the facts found by the trial court.” Nardone v. Dep’t of
Transp., Bureau of Driver Licensing, 130 A.3d 738, 748 (Pa. 2015); see also Park
v. Dep’t of Transp., Bureau of Driver Licensing, 178 A.3d 274, 281 (Pa. Cmwlth.
2018). The question of refusal by a licensee to consent to chemical testing “turn[s]
on a consideration of whether the [licensee’s] overall conduct demonstrates an
unwillingness to assent to an officer’s request for chemical testing.” Nardone, 130
A.3d at 749.
               Pennsylvania courts have long and consistently held that anything less
than an unqualified, unequivocal assent to submit to chemical testing constitutes a
refusal to consent thereto. See Dep’t of Transp., Bureau of Driver Licensing v.
Renwick, 669 A.2d 934, 939 (Pa. 1996); see also McKenna v. Dep’t of Transp.,
Bureau of Driver Licensing, 72 A.3d 294 (Pa. Cmwlth. 2013) (licensee’s questioning
police regarding consequences of refusal and refusing to sign consent form
constituted refusal to consent to chemical testing); Hudson v. Dep’t of Transp.,
Bureau of Driver Licensing, 830 A.2d 594 (Pa. Cmwlth. 2003) (repeated interruption
and aggressive behavior while being read warnings constituted a refusal to consent
to chemical testing). Further, an explicit refusal is not required to find a licensee
refused to consent to chemical testing; “a licensee’s conduct may constitute a
refusal.” Park, 178 A.3d at 281; see also Walkden v. Dep’t of Transp., Bureau of
Driver Licensing, 103 A.3d 432, 440 (Pa. Cmwlth. 2014) (a general unwillingness




                                           5
to submit to testing demonstrated by a licensee’s overall conduct demonstrated a
refusal to consent to chemical testing).
               Of course, as fact-finder in license suspension appeals, the trial court
determines both the credibility of witnesses and weight assigned to the evidence
presented. Park, 178 A.3d at 284. “It is well settled that the trial court’s credibility
determinations in a license suspension appeal will not be second-guessed on appeal.”
Id.
               Here, Officer Manion testified at Licensee’s license suspension appeal
hearing that, after concluding Licensee was intoxicated and placing him into
custody, he explained the chemical testing process to Licensee. See N.T. 11/13/2017
at 7-8. After explaining the process, Officer Manion read the entire DL-26B form
to Licensee verbatim and asked whether Licensee would consent to chemical testing.
Id. at 8, 22, 27. Officer Manion testified Licensee understood what Officer Manion
explained, read, and requested. Id. at 27. Although he could not recall Licensee’s
exact response to being asked whether he would consent to chemical testing, Officer
Manion repeatedly testified that he understood Licensee’s reply to be a refusal to
submit to the requested chemical testing. Id. at 8, 24, 28. The trial court credited
Officer Manion’s testimony. See Trial Court Opinion at 11. Additionally, DOT
submitted, and the trial court accepted, the DL-26B form and other certified
documents related to Licensee’s suspension into evidence at the hearing. Id. at 8-
10.5 The DL-26B form included certifications signed by Officer Manion that: (1) he

       5
          DOT moved a collection of certified records identified as Exhibit C-1 into evidence. N.T.
11/13/2017 at 8-10. Licensee objected to the portions of Exhibit C-1 that contained Officer
Manion’s incident report and Licensee’s driver’s license record, and DOT agreed to remove the
report from C-1. Id. With that modification, the trial court admitted the first five pages of Exhibit
C-1, consisting of the DOT certification, the license suspension letter, and a copy of the DL-26B
form, into evidence without objection. Id.

                                                 6
read Licensee the DL-26B warnings6 and (2) Licensee refused to sign the form after
being advised of the warnings. See Exhibit C-1, DL-26B form. The DL-26B form
also included an affidavit signed by Officer Manion attesting that: (1) Licensee was
placed under arrest for DUI; (2) Officer Manion had requested Licensee submit to
blood testing; (3) Officer Manion had read the DL-26B warnings to Licensee; and
(4) Licensee had refused to submit to blood testing after having been read the
warnings. Id. Licensee offered neither testimony nor documentary evidence to rebut
Officer Manion’s testimony.
                Based on this evidence the trial court determined Licensee refused to
consent to the chemical testing. See Trial Court Opinion at 9-11. The trial court
found the testimony of Officer Manion and the DL-26B form submitted into
evidence supported a conclusion that Licensee refused to provide unqualified,
unequivocal consent to chemical testing when it was requested. Id. Further, the trial


      6
           The DL-26B form provides the following warnings to be read to a motorist under arrest
for DUI:

                1. You are under arrest for driving under the influence of alcohol or
                a controlled substance in violation of Section 3802 of the Vehicle
                Code.

                2. I am requesting that you submit to a chemical test of blood.

                3. If you refuse to submit to the blood test, your operating privilege
                will be suspended for at least 12 months. If you previously refused
                a chemical test or were previously convicted of driving under the
                influence, you will be suspended for up to 18 months.

                4. You have no right to speak with an attorney or anyone else before
                deciding whether to submit to testing. If you request to speak with
                an attorney or anyone else after being provided these warnings or
                you remain silent when asked to submit to a blood test, you will have
                refused the test.

Exhibit C-1, DL-26B form.
                                                  7
court found that Licensee’s argument that his response may have been
misinterpreted was largely speculative and unsupported by the testimony presented,
which the court found credible. Id. Finally, the trial court noted that Licensee
presented no authority for the proposition that a police officer’s failure to record or
testify verbatim as to the response a licensee provided in refusing to consent to
chemical testing invalidates a refusal-based license suspension. Id.
             We find no abuse of discretion in the trial court’s determination that
Licensee refused to consent to the requested chemical testing. Officer Manion
repeatedly stated in his testimony, which the trial court credited, that Licensee
refused to consent to chemical testing when requested. That Officer Manion could
not recall Licensee’s exact words did not serve to negate the officer’s repeated,
unequivocal testimony that Licensee refused to consent to chemical testing when
requested. The DL-26B form entered into evidence corroborated Officer Manion’s
testimony and further supported the trial court’s finding that Licensee failed to
consent to chemical testing in an unqualified and unequivocal fashion. Additionally,
Licensee offered no evidence to establish that he either was not capable of making a
knowing and conscious refusal or was physically unable to take the test. We decline
Licensee’s invitation to reweigh the evidence presented in this matter and
consequently find no merit to Licensee’s argument that the trial court erred in this
regard.
             Next, Licensee argues that the license suspensions imposed pursuant to
the Implied Consent Law are unconstitutional under Birchfield v. North Dakota. See
Licensee’s Brief at 12-22. Licensee argues that Implied Consent Law license
suspensions are essentially punitive in nature and are therefore criminal, as opposed
to civil, sanctions. Id. We do not agree.


                                            8
              Initially, we note that this Court has definitively stated that license
suspensions imposed pursuant to the Implied Consent Law are civil, not criminal,
sanctions. See Boseman v. Dep’t of Transp., Bureau of Driver Licensing, 157 A.3d
10, 17 (Pa. Cmwlth.), appeal denied, 170 A.3d 996 (Pa. 2017); see also Garlick v.
Dep’t of Transp., Bureau of Driver Licensing, 176 A.3d 1030, 1037 n.7 (Pa. Cmwlth.
2018). In Boseman, this Court noted that, “[b]y its own language, Birchfield, does
not apply to implied consent laws that merely impose civil penalties.” Boseman,
157 A.3d at 21. The Court further explained:

              Unlike Birchfield, the present case involves a civil license
              suspension, not a criminal proceeding. . . . [A]lthough
              Birchfield may have some impact in criminal DUI
              proceedings in Pennsylvania where enhanced penalties
              based on refusal of a blood test are imposed, such is not
              the case before us in this civil license suspension appeal
              under the Implied Consent Law.

Id. (emphasis added).7
              In spite of this precedent, Licensee argues that Implied Consent Law
license suspensions are punitive, not civil, sanctions. See Licensee’s Brief at 12-22.
To establish this argument, Licensee relies on a two-part test wherein “the Court first
inquires whether the legislature’s intent was to impose punishment, and, if not,
whether the statutory scheme is nonetheless so punitive either in purpose or effect
as to negate the legislature’s non-punitive intent.” Commonwealth v. Williams, 832
A.2d 962, 971 (Pa. 2003). Under this test, a court first determines whether the
General Assembly intended to impose punishment. “In applying the first element of

       7
         We note, as did the trial court, that the DL-26B form employed in this matter is a post-
Birchfield form that removed the previous criminal consequences language of the DL-26 form and
now accurately advises individuals of the consequences faced for refusing to consent to chemical
testing upon their arrest for DUI. See Trial Court Opinion at 3.
                                               9
this test, the sole question is whether the General Assembly’s intent was to punish.”
Id. If the Court determines the General Assembly’s intent was to impose a civil
sanction as opposed to a criminal punishment, the analysis proceeds to the second
step of determining whether the law nevertheless provides a sanction so punitive as
to transform an intended civil remedy into a criminal penalty by balancing the
following non-exhaustive list of factors:

             (1) whether the sanction involves an affirmative disability
             or restraint; (2) whether it has historically been regarded
             as punishment; (3) whether it comes into play only on a
             finding of scienter; (4) whether its operation will promote
             the traditional aims of punishment—retribution and
             deterrence; (5) whether the behavior to which it applies is
             already a crime; (6) whether an alternative purpose to
             which it may rationally be connected is assignable for it;
             and (7) whether it appears excessive in relation to the
             alternative purpose assigned.

Id. at 973 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)).

             In applying these factors, the Supreme Court has stated
             that only the “clearest proof” that a law is punitive in effect
             may overcome a legislative categorization to the contrary.
             While a precise definition of what constitutes the “clearest
             proof” is rarely articulated, such requirement mirrors the
             general presumption of validity enjoyed in Pennsylvania
             by all lawfully enacted legislation. Thus, for present
             purposes we understand the “clearest proof” standard to
             indicate that the Mendoza–Martinez factors must weigh
             heavily in favor of a finding of punitive purpose or effect
             in order to negate the General Assembly’s intention that
             the Act be deemed civil and remedial.

Id. (citations omitted).


                                            10
            Regarding the first inquiry, whether the General Assembly’s intent in
enacting the law was to punish, Licensee argues that the General Assembly’s
amendment of Section 1547(b)’s title from “Suspension for refusal” to “Civil
penalties for refusal” “signals the General Assembly’s intent to turn a section that
was previously regarded as a punishment into a civil penalty.” Licensee’s Brief at
17. This argument is unsupported, unpersuasive, and contrary to settled law.
            Not previously viewed as a punishment, “[t]he implied consent
provisions of the Vehicle Code were enacted to address the hazard of impaired
drivers on public roads.” Todd v. Dep’t of Transp., Bureau of Driver Licensing, 723
A.2d 655, 658 (Pa. 1999). As this Court has stated:

            The objective of the Implied Consent Law is to protect the
            public by providing an effective means of denying
            intoxicated motorists the privilege of using the highways
            of this Commonwealth. A further purpose of the Implied
            Consent Law is to facilitate the acquisition of chemical
            analyses and to permit their utilization in legal
            proceedings. The mischief sought to be remedied by the
            Implied Consent Law is the number of fatalities and
            injuries which occur every day on our roads as a result of
            drivers operating vehicles under the influence of alcohol
            and/or drugs. The objective of preserving the life and
            health of this Commonwealth’s motorists is most
            important, and the statute should be liberally construed to
            effect its objective and promote justice.

Occhibone v. Dep’t of Transp., Bureau of Driver Licensing, 645 A.2d 327, 330–31
(Pa. Cmwlth. 1994), aff’d sub nom. Occhibone v. Commonwealth, 669 A.2d 326 (Pa.
1995) (citations and footnote omitted). Contrary to Licensee’s suggestion, for which
he provides no legal support, the General Assembly intended the Implied Consent



                                        11
Law as a civil penalty intended to protect Pennsylvanians by removing drunk drivers
from the road.8
               Likewise, despite Licensee’s suggestions to the contrary, the Mendoza-
Martinez factors weigh against a determination that the Implied Consent Law
provides a sanction so punitive as to transform an intended civil remedy into a
criminal penalty.9 Regarding the first factor, whether the sanction involves an
affirmative disability or restraint, this Court has ruled that a one-year license
suspension is not an affirmative restraint akin to incarceration or deportation. See
Kozieniak v. Dep’t of Transp., Bureau of Driver Licensing, 100 A.3d 326, 331 (Pa.
Cmwlth. 2014) (disqualification of a commercial driver’s license). Likewise, the
second factor, whether the sanction has historically been regarded as punishment,
weighs against Licensee because the suspension of an individual’s driving privilege
has traditionally been considered a civil sanction as opposed to a criminal
punishment. Id. at 331-32. As to the third factor regarding the necessity of a finding
of scienter, DOT need not prove scienter in a refusal-based license suspension
appeal. See Garlick, 176 A.3d at 1035. Regarding the fourth factor, while the goal

       8
          Licensee also makes a passing reference to Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), cert. denied sub nom. Pennsylvania v. Muniz, __ U.S. __, 138 S. Ct. 925 (2018), in an
apparent effort to equate the civil punishment of a 12-month license suspension upon a DUI
conviction with lifetime registration requirements imposed by Pennsylvania’s Sex Offender
Registration and Notification Act, 42 Pa.C.S. §§ 9799.10–9799.41, on convicted sexual offenders.
See Licensee’s Brief at 16. To the extent Licensee raises any argument based on a comparison to
Muniz, it is waived as undeveloped. See Berner v. Montour Twp., 120 A.3d 433, 437 n.6 (Pa.
Cmwlth. 2015) (ruling that a party’s failure to sufficiently develop an issue in a brief constitutes a
waiver of the issue). Waiver aside, we note that any comparison to our Supreme Court’s decision
regarding lifetime sex offender registration is inapt: the license suspension involved in the instant
matter is for a distinct time period in keeping with the General Assembly’s goal of protecting its
citizens by keeping unsafe drivers off the Commonwealth’s highways.
       9
         Viewing the determination of a statute as constitutional or otherwise as the function of
appellate courts, the trial court declined to engage in a weighing of the Mendoza-Martinez factors.
See Trial Court Opinion at 14-15.
                                                 12
of the Implied Consent Law is to protect the citizens of the Commonwealth by
deterring drunk driving, “[r]etribution . . . has not been recognized as a goal of the
statute.” Commonwealth v. Abraham, 62 A.3d 343, 352 (Pa. 2012). The fifth factor
asks whether the behavior to which the sanction applies is already a crime. While
DUI is a crime, refusing a request for consent to submit to chemical testing is not,
and so this factor weighs against Licensee as well. See Dep’t of Transp., Bureau of
Driver Licensing v. Bird, 578 A.2d 1345, 1348 (Pa. Cmwlth. 1990) (“The implied
consent law is not a criminal statute, but a condition precedent to obtaining driving
privileges in this [C]ommonwealth.”). The sixth and seventh factors concern
whether the sanction has an alternative, non-punitive purpose and whether it is
excessive in relation to the alternative purpose assigned. Compared to the General
Assembly’s non-punitive purpose in protecting Pennsylvanians from the dangers of
drunk driving, it can hardly be said that temporally limited license suspensions
represent excessive penalties.
             The trial court’s refusal to declare the Implied Consent Law
unconstitutional based on Pennsylvania’s test for determining whether statutes
contain punitive, as opposed to civil, sanctions was neither an error of law nor an
abuse of discretion.
             For the above reasons, the trial court properly denied Licensee’s
statutory license suspension appeal. Accordingly, we affirm.



                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge


Judge Cohn Jubelirer did not participate in the decision of this case.


                                         13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Andrew Factor,                       :
                 Appellant           :
                                     :
           v.                        :
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :    No. 163 C.D. 2018
Bureau of Driver Licensing           :



                                 ORDER


           AND NOW, this 6th day of December, 2018, the January 11, 2018 order
of the Court of Common Pleas of Montgomery County is AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
