             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Amanda Lukach,                                  :
                      Appellant                 :
                                                :    No. 1456 C.D. 2017
               v.                               :
                                                :    Submitted: March 2, 2018
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing                      :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                         FILED: June 4, 2018


               Amanda Lukach (Licensee) appeals from the September 12, 2017 order
of the Court of Common Pleas of Berks County (trial court) denying her statutory
appeal from a one-year suspension of her driving privilege imposed by the Department
of Transportation (DOT) pursuant to section 1547(b)(1)(i) of the Vehicle Code.1 The


       1
         Section 1547(b)(1)(i) provides that if any person placed under arrest for driving while under
the influence is requested to submit to a chemical test and refuses to do so, DOT shall suspend the
person’s operating privilege for one year. 75 Pa.C.S. §1547(b)(1)(i). In order to sustain a suspension
of operating privilege under this section, DOT must establish that the licensee (1) was arrested for
drunken driving by a police officer who had reasonable grounds to believe that the motorist was
operating a motor vehicle while under the influence of alcohol, (2) was requested to submit to a
chemical test, (3) refused to submit, and (4) was warned that refusal would result in a license
suspension. Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636,
640 (Pa. Cmwlth. 2006).
sole issue on appeal is whether the trial court erred in determining that Licensee refused
to submit to a blood draw.
                On October 16, 2016, Officer Jeffrey Futchko of the Western Berks
Regional Police Department witnessed Licensee commit a violation of the Vehicle
Code2 and instituted a traffic stop. Officer Futchko observed Licensee display the
classic signs of alcohol ingestion; Licensee admitted that she had consumed alcohol;
and she failed a breath test and field sobriety tests. Officer Futchko then placed
Licensee under arrest for driving under the influence (DUI) and transported her to the
DUI Center. There, Officer Futchko read the implied consent warnings to Licensee
from the DL-26 Form,3 requesting that she submit to a blood draw to measure her blood
alcohol content. After some wavering on the part of Licensee, and repeated insistence
that she talk to her sister, an attorney, before taking the blood draw, Officer Futchko
deemed Licensee’s conduct to be a refusal to submit to chemical testing. (Reproduced
Record (R.R.) at 1a-8a.)
                DOT received notice that Licensee refused to submit to chemical testing,
and thereafter mailed her a notice on October 31, 2016, advising her that her driving
privileges were being suspended for a period of 12 months, effective December 5,
2016, pursuant to section 1547(b)(1)(i) of the Vehicle Code. Licensee filed a timely




       2
           75 Pa.C.S. §§101-9805.

       3
          Form DL-26 contains the chemical testing warnings required by section 1547 of the Vehicle
Code, 75 Pa.C.S. §1547, pursuant to our Supreme Court’s decision in Department of Transportation,
Bureau of Traffic Safety v. O’Connell, 555 A.2d 873 (Pa. 1989). These warnings, also known as the
implied consent warnings or O’Connell warnings, inform a motorist that she is under arrest; that she
is being requested to submit to a chemical test; that she will lose her operating privileges if the request
is refused; and that there is no right to remain silent or speak to an attorney or anyone else prior to
taking the test.


                                                    2
appeal, and on September 12, 2017, the trial court held a de novo hearing. (Trial court
op. at 1; Ex. C-1.)
             At the hearing, Officer Futchko testified that, at the DUI Center, he read
Licensee the warnings on the DL-26 Form at 1:38 a.m., informing her, among other
things:

             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.

(R.R. at 6a-7a; Ex. C-1.)
             Officer Futchko testified that Licensee initially agreed to take the blood
test. However, when Licensee was escorted to the processing area, she affirmatively
stated “that she had to make a phone call to her sister first before taking the test.” (R.R.
at 7a.) Officer Futchko then asked Licensee “two or three more times if she was going
to take the blood test and each time [Licensee] indicated she would like to talk to her
sister before the blood was drawn and that her sister is her attorney.” Id. At 2:04 a.m.,
after providing Licensee with “two or three minutes” to “reconsider taking the blood
test,” Officer Futchko deemed her conduct to constitute a refusal to submit to the blood
draw. (Trial court op. at 4; R.R. at 7a.)
             Based on this testimony, the trial court found that Licensee engaged in a
“tacit refusal” by asking to “speak to her sister, who she explained was her lawyer, four
times.” (Trial court op. at 5.) The trial court additionally found that Licensee “was not
confused about the language of the warnings,” “never indicated that she had any
questions about the warnings,” and “was told several times that she had no right to
speak to her sister first.” (Id.) Citing Quigley v. Department of Transportation, Bureau



                                             3
of Driver Licensing, 965 A.2d 349 (Pa. Cmwlth. 2009), the trial court denied
Licensee’s appeal.
               Before this Court,4 Licensee argues that the trial court erred in determining
that she refused to take a blood draw. Licensee asserts that she never informed Officer
Futchko that she was unwilling to or would not take the test; Officer Futchko did not
wait a reasonable amount of time before deeming her actions a refusal; and she was not
asked to sign the DL-26 Form indicating that she refused to submit to the blood draw.
We find no merit in these contentions.
               Whether a motorist refused to submit to a chemical test is a question of
law that depends on the factual determinations of the trial court. Hudson v. Department
of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa. Cmwlth. 2003).
               Once a police officer provides the implied consent warnings to a licensee,
the officer has done all that is legally required to ensure the licensee is fully advised of
the consequences of her failure to submit to chemical testing.                     Department of
Transportation, Bureau of Driver Licensing v. Scott, 684 A.2d 539, 545 (Pa. 1996). A
police officer has no duty to make certain that a licensee understands the implied
consent warnings. Martinovic v. Department of Transportation, Bureau of Driver
Licensing, 881 A.2d 30, 35 (Pa. Cmwlth. 2005).
               In proving that a licensee refused to submit to chemical testing, DOT has
the burden of showing that the licensee was offered a meaningful opportunity to submit
to chemical testing. Petrocsko v. Department of Transportation, Bureau of Driver
Licensing, 745 A.2d 714, 716 (Pa. Cmwlth. 2000). If a licensee is provided with such


       4
         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. Pasecki v. Department of Transportation, Bureau of Driver Licensing, 6 A.3d
1067, 1070 (Pa. Cmwlth. 2010).


                                                  4
an opportunity, “anything less than an unqualified, unequivocal assent” to submit to
testing constitutes a refusal to submit to testing. Department of Transportation v.
Renwick, 669 A.2d 934, 938 (Pa. 1996); Lanthier v. Department of Transportation,
Bureau of Driver Licensing, 22 A.3d 346, 348 (Pa. Cmwlth. 2011). In situations where
a licensee initially agrees to submit to testing, the licensee’s subsequent conduct can
negate the assent and amount to a refusal; such refusal need not be expressly conveyed
in words and can be gleaned from the licensee’s silence or inaction. Boseman v.
Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10, 18-19 (Pa.
Cmwlth. 2017); Department of Transportation, Bureau of Traffic Safety v. Krishak,
496 A.2d 1356, 1360 (Pa. Cmwlth. 1985). Particularly, a refusal may be found where
the licensee’s “overall conduct demonstrates an unwillingness to assent to an officer’s
request for chemical testing.” Nardone v. Department of Transportation, Bureau of
Driver Licensing, 130 A.3d 738, 749 (Pa. 2015).
             In Quigley, the police officer read the licensee the chemical test warnings
on the DL-26 Form at the police station and asked the licensee to submit to a chemical
test. The licensee responded that she did not want to take the test, stating that she
desired to speak with her husband. The police officer concluded that the licensee
refused to take the test. In affirming the license suspension, this Court stated:

             [I]n this case, Quigley was not confused about the language
             of the warnings. She never indicated that she had any
             questions about it, or that she interpreted the language of the
             DL-26 Form to mean that her operating privilege[] would
             only be suspended if she had previous refusals or convictions
             for DUI. In addition, the only reason she gives for not
             wanting to submit to the breathalyzer is that she wanted to
             speak with her husband first, which she had been told she had
             no right to do.
Quigley, 965 A.2d at 354.



                                            5
                In DUI cases involving consent for a blood draw, we have long held that
when a licensee is specifically advised that there is no right to speak to an attorney or
any other person, and the licensee requests that she first speak with such individuals
prior to taking the test, this is compelling evidence that the licensee has refused to
submit to the test. See, e.g., Hirsch v. Department of Transportation, Bureau of Driver
Licensing, 702 A.2d 375, 377 (Pa. Cmwlth. 1997) (“Hirsch continued, in spite of that
warning, to assert that he wanted to speak with his attorney before submitting to the
blood test, the police officer performed his duty under O’Connell when he read Hirsch
the warnings from the DL-26 form . . . . Therefore, because the police officer gave
Hirsch the proper O’Connell warnings from the DL-26 form, Hirsch’s failure to submit
to chemical testing constitutes a refusal.”).5 The underlying rationale for the rule is
that a licensee has no constitutional or statutory right to speak to individuals before
deciding to take a chemical test, and attempts by a licensee to do so necessarily delay
the administration of the test and indicate that the licensee is unwilling to assent to the
test. Department of Transportation, Bureau of Traffic Safety v. Cannon, 286 A.2d 24,
26 (Pa. Cmwlth. 1972).

        5
          See also In re Appeal of Kilcullen, 520 A. 2d 947, 948-49 (Pa. Cmwlth. 1987) (“Just as
Appellant has no right to confer with an attorney prior to making a decision whether or not to assent
to an officer’s request to submit to a chemical test, he has no right to consult with a parent or other
relative prior to making such a decision. Appellant’s admitted failure to make a decision in response
to the officers’ requests constitutes a refusal.”); Department of Transportation, Bureau of Traffic
Safety v. Doherty, 490 A.2d 481, 482 (Pa. Cmwlth. 1985) (collecting and discussing cases)
(“Invariably the licensee wanted to consult his lawyer or have one present before submitting to the
breathalyzer test. In each case, this conditioned response was construed to be a refusal which justified
the suspension of a driver’s license.”) (emphasis in original); Department of Transportation, Bureau
of Traffic Safety v. Cannon, 286 A.2d 24, 26 (Pa. Cmwlth. 1972) (“[T]he licensee has no right . . . to
be able to call an attorney before deciding whether or not to take the test . . . . [I]t follows that appellee
had no right to condition his taking the test upon being able to make a telephone call . . . . [T]he
request for consultation with counsel necessarily involved a delay in administration of the test . . . .
The occasion is not one for debate, maneuver or negotiation, but rather for a simple ‘yes’ or ‘no’ to
the officer’s request.”).


                                                      6
               Moreover, in these DUI cases involving consent for a blood draw, a police
officer is not required to spend time either cajoling a licensee or waiting for her to
change her mind. Grogg v. Department of Transportation, Bureau of Driver Licensing,
79 A.3d 715, 719 (Pa. Cmwlth. 2013); Department of Transportation, Bureau of Traffic
Safety v. Ferrara, 493 A.2d 154, 157 (Pa. Cmwlth. 1985). In determining whether a
licensee had a sufficient opportunity to submit to testing, “the number of passing
minutes” between the time the officer reads the DL-26 Form and the deemed refusal
“is irrelevant, so long as a licensee’s conduct evidences a refusal.” Delprete v.
Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 961 C.D.
2012, filed January 22, 2013) (unreported), slip op. at 8 n.4;6 see also McCloskey v.
Department of Transportation, Bureau of Driver Licensing, 722 A.2d 1159, 1163 (Pa.
Cmwlth. 1999). “[T]his Court has never suggested that [a licensee] must be provided
with a specific time span in which to consent to testing,” and we generally defer to a
trial court’s finding that a licensee’s “conduct demonstrated a refusal” or “that her
failure to submit to testing was an attempt to delay the testing process.” Grogg, 79
A.3d at 720.
               Here, as found by the trial court, Officer Futchko read the DL-26 Form to
Licensee, specifically informing her that she had no right to speak to her sister in either
a personal or representative capacity, and reiterated this warning. Although Licensee
agreed to take the blood draw at 1:38 a.m., she changed direction when she was
escorted to the processing center, whereupon she embarked in a course of conduct that
displayed her unwillingness to assent to the blood draw.               More specifically, in
responding to Officer Futchko’s four requests that she take the blood draw, Licensee

       6
         Pursuant to Commonwealth Court Internal Operating Procedure section 414(a), an
unreported Commonwealth Court panel decision issued after January 15, 2008, may be cited for its
persuasive value, but not as binding precedent. 210 Pa. Code §69.414(a).


                                               7
insisted that she first speak with her sister/attorney four times, notwithstanding the
above-mentioned directives that she had no right to do so.
             Contrary to Licensee’s argument, a police officer is under no obligation
to provide a licensee with the opportunity to sign the “refusal” line on the DL-26 Form.
Keener v. Commonwealth (Pa. Cmwlth., Nos. 1003 and 1004 C.D. 2016, filed May 25,
2017) (unreported), slip op. at 11. This is because “DOT does not need to prove a
licensee’s unequivocal refusal,” id.; rather, “anything less than an unqualified,
unequivocal assent” to submit to testing constitutes a refusal. Renwick, 669 A.2d at
938. In this case, Licensee’s repeated invocations to speak to her sister/attorney before
submitting to the blood draw meets the legal standard for a refusal. Notably, the trial
court found that Licensee had a meaningful opportunity to agree and succumb to the
blood draw and was not confused by the warnings. Therefore, we conclude that the
trial court did not err in determining that Licensee refused to submit to the blood draw.
             Accordingly, we affirm the trial court’s order denying Licensee’s
statutory appeal from a one-year suspension of her driving privileges under section
1547(b)(1)(i) of the Vehicle Code.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Amanda Lukach,                         :
                  Appellant            :
                                       :    No. 1456 C.D. 2017
            v.                         :
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


                                   ORDER


            AND NOW, this 4th day of June, 2018, the September 12, 2017 order
of the Court of Common Pleas of Berks County is hereby affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
