          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicole Park,                                    :
                              Appellant         :
                                                :
               v.                               :   No. 522 C.D. 2017
                                                :   Argued: December 7, 2017
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing                      :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION
BY JUDGE SIMPSON                                FILED: January 19, 2018

               Nicole Park (Licensee) appeals from an order of the Court of Common
Pleas of York County1 (trial court) that denied her license suspension appeal and
reinstated the Department of Transportation, Bureau of Driver Licensing’s (DOT)
one-year suspension of her operating privilege under 75 Pa. C.S. §1547(b)(1)(i) for
refusing to submit to a chemical test of her blood after being arrested for driving
under the influence of alcohol (DUI), a violation of 75 Pa. C.S. §3802. Licensee
presents four issues for our review, including whether the trial court erred or abused
its discretion in denying Licensee’s appeal where she could not make a knowing and
conscious refusal because of the arresting officer’s confusing and changing
instructions. For the reasons that follow, we affirm.




      1
          The Honorable Lawrence F. Clark, Jr., Senior Judge, presided.
                                   I. Background
             On September 10, 2016, while on routine patrol on southbound
Interstate 83 in Conewago Township, York County, Pennsylvania State Trooper
Raymond R. Rutter (Arresting Officer) observed a Ford Escape in front of him
weaving in and out of the right lane. The vehicle touched the fog line six times.
Arresting Officer clocked the vehicle at 76 miles per hour (mph) in a 65 mph zone.
Arresting Officer followed the vehicle and initiated a traffic stop. After a quarter of
a mile, the vehicle stopped.


             Arresting Officer then made contact with the driver, who identified
herself as Licensee. Arresting Officer noticed Licensee had bloodshot and glassy
eyes and that her speech was slurred. The Officer also noticed a strong odor of
alcoholic beverage emanating from the vehicle. Arresting Officer asked Licensee to
exit the vehicle and perform field sobriety tests. Licensee complied with the
officer’s requests, including his request for a preliminary or pre-arrest breath test
(PBT).    Licensee had trouble with her footing while exiting the vehicle and
performing the tests. Licensee’s PBT indicated a blood alcohol content of .129.
Arresting Officer believed the rating would have been higher if Licensee would have
provided a full breath. The Officer then arrested Licensee for DUI and placed her
in his patrol vehicle.


             Once they were both in the vehicle, Arresting Officer advised Licensee
that she would be asked to submit to a chemical test of her blood. Licensee advised
Arresting Officer that she was going to refuse the test. Arresting Officer then read
DOT’s Form DL-26 to Licensee, which stated that a refusal to submit to chemical



                                          2
testing will result in a one-year suspension of her driving privilege. After reading
Licensee the DL-26 warnings, Arresting Officer then asked Licensee to submit to
the chemical test. Licensee again responded no.


             Arresting Officer then transported Licensee to the booking center in
York. On the way to the booking center, Arresting Officer twice asked Licensee if
she realized she was refusing testing. Licensee responded in the affirmative both
times. Arresting Officer then asked Licensee a third time if she was going to refuse
testing. Licensee replied: “Yes, I am.” Tr. Ct. H’rg, Notes of Testimony (N.T.),
3/29/17, at 10-11. Arresting Officer then released Licensee to the officials at the
booking center.


             At the appeal hearing, Arresting Officer testified on cross-examination
that Licensee repeatedly expressed concerns about how being arrested for DUI and
submitting to chemical testing would affect her job as a teacher. See N.T. at 7, 15.
Arresting Officer further testified he could not recall whether he told Licensee that
she would have time to consider whether to consent to the blood test on the way to
the booking center. Id. at 15-16. Nonetheless, Arresting Officer recalled that
Licensee advised him that she would not submit to chemical testing and that he then
called the booking center. Id.


             The trial court also played Arresting Officer’s dash-cam video. After
watching the video, Arresting Officer confirmed he told Licensee she would have
time to think about taking the blood test on the way to the booking center. N.T. at
21-22. Arresting Officer further testified he was the only one to sign the DL-26



                                         3
Form; Licensee did not sign it. See Ex. D-1 (attached to Appellee’s brief). To that
end, Licensee produced a second DL-26 Form also designated to be used for blood
tests. See Ex. D-2, DL-26B (attached to Appellee’s brief). On both forms, Arresting
Officer signed the affidavit indicating Licensee was arrested for DUI and given the
implied consent warnings and that she refused the blood test.


             On re-direct examination, Arresting Officer confirmed that he again
read Licensee the DL-26 warnings on the way to the booking center, and that
Licensee never agreed to take the test. N.T. at 28. The vehicle audio recorder
confirmed the conversation. Tr. Ct., Slip Op., 7/7/17, at 4.


             In addition, Arresting Officer admitted that he turned his microphone
off for 35 to 40 seconds during a phone conversation with his superior officer
regarding the new law governing blood test refusals following the U.S. Supreme
Court’s decision in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160
(2016), which held that a state cannot criminally penalize a motorist for refusing to
submit to a warrantless request for a blood test after being arrested for DUI.
Arresting Officer testified that he inquired as to what steps he needed to take when
a refusal occurred. N.T. at 26-27. Arresting Officer testified he did not believe the
conversation with his supervisor was of evidentiary value. N.T. at 27.


             Licensee also testified at the hearing. She stated she had never been in
the backseat of a patrol car or in handcuffs before, and she became very anxious.
N.T. at 33. Licensee asked Arresting Officer what was going to happen to her. Id.
He replied that they would go to the booking center, she would take a blood test and



                                          4
then go to jail. Id. Licensee then asked if she would have to take a blood test and
Arresting Officer responded: “You can refuse if you want to.” Id. at 34. Although
Arresting Officer shortly thereafter requested that she submit to a blood test,
Licensee testified: “I had already established in my brain that that [sic] was an option
to not have to give the blood test.” Id.


                Licensee further testified that she lost her composure, “kind of tuned
out” and “kind of slumped in the back in the car.” Id. Licensee could not remember
being read the DL-26 Form or refusing the blood test. Id. She further testified that
she would not have refused the blood test had she known the punitive consequences.
Id. at 34-35. Licensee did recall Arresting Officer saying “Excellent” when she gave
her answer. Id. at 35. Licensee interpreted “Excellent” as meaning that she was
compliant with the officer’s requests. Id.


                Nonetheless, on cross-examination, Licensee admitted that the dash-
cam video (Ex. D-3) showed Arresting Officer reading her the DL-26 warnings. Id.
at 35-36. However, Licensee testified she lost her composure during the car ride and
“wasn’t really listening.” Id. at 36-37. However, when asked if she ever told
Arresting Officer that she wanted to take the blood test, Licensee answered: “No.”
Id. at 37-38.


                Licensee’s attorney then argued that the court should consider
Licensee’s confused state of mind resulting in part from Arresting Officer’s
statement that she had the option of refusing the blood test. N.T. at 39-41. Licensee
thus believed she could refuse the blood test without repercussions. Licensee also



                                            5
pointed out that she never signed the DL-26 Form, indicating that it was never
offered her. Id.


              However, the trial court, in summarizing, observed that Arresting
Officer’s dash-cam video and audio made it clear that Arresting Officer read the DL-
26 Form to Licensee and that she refused to consent to chemical testing. N.T. at 43.
Further, although Arresting Officer used the word “Excellent,” it amounted to a
comment without any meaning. Rather, the trial court reasoned, the operative words
here were the “no” spoken by Licensee and her admission in court that she never
said “yes” to Arresting Officer’s request that she consent to chemical testing. Id. at
43-44. Consequently, the trial court dismissed Licensee’s appeal. N.T. at 44.
Licensee appeals.2


                                        II. Discussion
                          A. Knowing and Conscious Refusal
                                        1. Argument
              Licensee first contends the trial court erred or abused its discretion in
denying Licensee’s appeal where she could not make a knowing and conscious
refusal of chemical testing. Licensee asserts that based on Arresting Officer’s
confusing and changing instructions, she could not make a knowing and conscious
refusal of chemical testing. Her argument is as follows. To sustain a suspension of


       2
         Our review in a license suspension 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. Dep’t of Transp., Bureau of Traffic
Safety v. O’Connell, 555 A.2d 873 (Pa. 1989); Marchese v. Commonwealth, 169 A.3d 733 (Pa.
Cmwlth. 2017).



                                               6
a licensee’s operating privilege under Pennsylvania’s Implied Consent law, 75 Pa.
C.S. §1547(a) and (b), DOT must establish 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. Regula v. Dep’t of Transp., Bureau of Driver
Licensing, 146 A.3d 836 (Pa. Cmwlth. 2016). Once DOT satisfies this burden, the
burden shifts to the licensee to prove she was physically incapable of performing the
test or that her refusal was not knowing and conscious. Sitoski v. Dep’t of Transp.,
Bureau of Driver Licensing, 11 A.3d 12 (Pa. Cmwlth. 2010).


              Here, Licensee contends that although she may have been under the
influence of alcohol, she became confused by Arresting Officer’s multiple and
conflicting statements regarding whether she must submit to a blood test. Licensee
asserts Arresting Officer asked her if she thought she would be willing to take a
blood test and told her that is something she should think about on the way to the
booking center. See N.T. at 21-22.


              In short, Licensee argues, prior to reading her the DL-26 Form,
Arresting Officer gave her conflicting statements about the procedure involving the
blood test.   During this time, Licensee asked Arresting Officer if she had to take a
blood test, and he told her that she could refuse it if she wanted to do so. N.T. at 33-
34. Licensee stated that this established in her mind that she was compliant with
Arresting Officer’s requests and that she did not need to take the blood test. Id. at



                                           7
34-37. Licensee also testified she has a medical history of having a hard time giving
blood. Id.


             In support of her position that she was too confused by Arresting
Officer to make a knowing and conscious refusal, Licensee cites McDonald v.
Department of Transportation, Bureau of Driver Licensing 708 A.2d 154 (Pa.
Cmwlth. 1998). In McDonald, this Court affirmed a trial court’s decision sustaining
a license suspension appeal where the licensee initially had questions regarding her
right to call an attorney and the difference between criminal and civil proceedings.
The questions took about 10 to 15 minutes. After the police officer answered the
licensee’s questions, the licensee attempted to sign the consent form but the officer
grabbed it out of her hands and registered the licensee’s response as a refusal.


             Similar to McDonald, Licensee argues that she delayed her decision
because of confusing and changing statements from Arresting Officer regarding her
need to submit to the blood test. Here, the ramifications of not taking the blood test
were never made clear to Licensee. Therefore, Licensee asserts, she could not make
a knowing and conscious refusal of chemical testing.


             Licensee further argues there were problems with the DL-26 Forms
submitted into evidence. First, Licensee asserts Arresting Officer did not properly
fill out the forms. On one form, Arresting Officer left blank the space to write in the
type of test (breath or blood). In addition, Arresting Officer did not fill out the forms
completely. Arresting Officer failed to sign the line which indicates that he read the




                                           8
consent warnings to Licensee and gave her an opportunity to submit to the chemical
test.


                                      2. Analysis
             The question of whether a licensee refuses to submit to a chemical test
is a legal one subject to plenary review on appeal. Boseman v. Dep’t of Transp.,
Bureau of Driver Licensing, 157 A.3d 10 (Pa. Cmwlth.), appeal denied, 170 A.3d
996 (Pa. 2017). Once a police officer provides the implied consent warnings to a
motorist, the officer has done all that is legally required to ensure the motorist is
fully advised of the consequences of her failure to submit to chemical testing. Dep’t
of Transp., Bureau of Driver Licensing v. Scott, 684 A.2d 539 (Pa. 1996). All that
is required is that the officer read the warnings to the licensee and that the licensee
be given a meaningful opportunity to comply with the Implied Consent Law.
Sitoski. Anything substantially less than an unqualified, unequivocal assent to
submit to chemical testing constitutes a refusal. Id. Further, a licensee’s refusal
need not be expressed in words; a licensee’s conduct may constitute a refusal. Id.


             To that end, a reading of the DL-26 Form sufficiently apprises the
driver, either hearing or reading it, that if she refuses to submit to the chemical test,
her operating privileges will be suspended. Quigley v. Dep’t of Transp., Bureau of
Driver Licensing, 965 A.2d 349 (Pa. Cmwlth. 2009). The fact that a particular
motorist hearing the warning may question its interpretation is not a sufficient basis
upon which to argue that the refusal was not knowing and conscious. Id. Notably,
our Supreme Court recognizes that a licensee’s subjective beliefs do not provide a
sufficient justification for refusing to comply with the Implied Consent Law. Scott.



                                           9
             In short, an officer’s sole duty is to inform the motorist of the implied
consent warnings. Martinovic v. Dep’t of Transp., Bureau of Driver Licensing, 881
A.2d 30 (Pa. Cmwlth. 2005). As noted above, other than reading the warnings, an
officer need only provide a licensee with a meaningful opportunity to comply with
the Implied Consent Law. Sitoski. An officer has no duty to answer a licensee’s
questions. McKenna v. Dep’t of Transp., Bureau of Driver Licensing, 72 A.3d 294
(Pa. Cmwlth. 2013). In particular, officers do not have an obligation to make sure
that licensees understand the warnings or the consequences of a refusal. Martinovic.
Repeated questioning may also be deemed a refusal by conduct. Keenan v. Dep’t of
Transp., Bureau of Driver Licensing, 657 A.2d 134 (Pa. Cmwlth. 1995).


             Further, a motorist’s self-serving testimony that she was incapable of
providing a knowing and conscious refusal of a chemical test is insufficient to meet
her burden of proving incapacity. Kollar v. Dep’t of Transp., Bureau of Driver
Licensing, 7 A.3d 336 (Pa. Cmwlth. 2010). Rather, a licensee’s incapacity defense
must be supported by competent medical evidence where she suffers from no
obvious disability. Id. The medical expert must rule out alcohol as a contributing
factor in the motorist’s inability to make a knowing and conscious refusal. Id. Thus,
if a motorist’s inability to make a knowing and conscious refusal of chemical testing
is caused, in whole or in part, by the voluntary consumption of alcohol, the motorist’s
affirmative defense fails. Id.


             Here, Licensee asserts that because of Arresting Officer’s confusing
and conflicting statements regarding the implied consent warnings and whether she



                                          10
could refuse a blood test, she was so confused that she could not make a knowing
and conscious refusal of chemical testing. Licensee’s argument fails for a number
of reasons.


              First, Licensee admitted that Arresting Officer’s dash-cam video shows
that he read her the DL-26 Forms. N.T. at 35-36. Nevertheless, Licensee asserts
she asked Arresting Officer, during the period of time when the sound went out on
the video, if she had to take the blood test, and he told her that she did not have to
take the test. Because Licensee thought she did not need to take the blood test, she
decided not to take the test. Id. at 34-35.


              In addition, Licensee argues she was confused because Arresting
Officer told her that he was taking her to the booking center, but he did not
immediately do so. Further, Arresting Officer told her that she had time to consider
whether to take the blood test on the way to the booking center.


              Even assuming, however, that Arresting Officer told Licensee she did
not have to take the blood test, this is not a misstatement of the law. Any person
arrested for DUI has a right to refuse to submit to chemical testing. 75 Pa. C.S.
§1547(b)(1); Commonwealth v. Myers 164 A.3d 1162 (Pa. 2017). Of course, the
civil consequence under the Implied Consent Law for a refusal of chemical testing
is a suspension of driving privileges. These warnings are included in the DL-26
Form.




                                          11
             After the conversation about going to the booking center, Arresting
Officer read Licensee the DL-26 implied consent warnings. At this point, any
subjective confusion Licensee may have experienced was cured as a matter of law.
Scott; Sitoski; Martinovic. In short, Arresting Officer did all that he was legally
required to do to ensure that Licensee was fully advised of the consequences of
refusing to submit to chemical testing. Scott; Sitoski. Arresting Officer had no duty
to make sure that Licensee understood the consequences of refusing to take a
chemical test following a DUI arrest. The language in the DL-26 Forms is sufficient
as a matter of law to meet the warning requirement in the Implied Consent Law.
Yourick v. Dep’t of Transp., Bureau of Driver Licensing 965 A.2d 341 (Pa. Cmwlth.
2009) (en banc). As we noted in Yourick, it is unreasonable for a licensee to believe
that there would be no repercussions for refusing chemical testing after being
arrested for DUI.


             In addition, Licensee’s reliance on McDonald is misplaced.             In
McDonald, the trial court found that the licensee attempted to consent to chemical
testing after the officer explained the civil nature of the proceeding and that she had
no right to speak to an attorney before deciding whether to submit to testing. Unlike
McDonald, Licensee admitted that she never told Arresting Officer that she would
take the blood test. See N.T. at 37-38.


             Further, Licensee admitted to drinking prior to her DUI arrest and made
no evidentiary attempt to establish that her voluntary intoxication played no role in
her purported inability to a make a knowing and conscious refusal to submit to
chemical testing. Licensee’s failure to do so also constitutes grounds for the trial



                                          12
court’s determination that Licensee did not meet her burden of proving she was
incapable of making a knowing and conscious decision to refuse chemical testing.
Kollar.


             For the above reasons, we discern no error or abuse of discretion in the
trial court’s determination that Licensee did not meet her burden of proving she was
incapable of making a knowing and conscious decision to refuse chemical testing.
Scott; Sitoski; Kollar.


                          B. Credibility of Arresting Officer
                                     1. Argument
             Licensee next argues there are various reasons why the trial court
abused its discretion in finding Arresting Officer’s testimony credible.        First,
Arresting Officer removed 35-40 seconds of audio from the dash-cam video by
altering the sound so it would not be available. N.T. at 27. Only after being
questioned at the hearing did Arresting Officer admit that he removed the audio. Id.
The trial court should have considered this as tampering with the evidence.


             What is more, Arresting Officer admitted he intentionally removed the
audio. Although Arresting Officer claims the audio reflected a conversation with
his supervisor and had no evidentiary value, Licensee asserts if the audio was
available it would reveal that Arresting Officer was providing Licensee with
confusing and contradictory statements regarding the officer’s request for a blood
test.   Because of Arresting Officer’s confusing and contradictory statements,
Licensee testified she was under the impression she did not have to take the test.



                                          13
             Second, at the hearing Arresting Officer did not recall many of the
statements he made on the video despite having stated that he reviewed the video
that morning.     Only after the video played in court did Arresting Officer
acknowledge making these statements.


             Third, Arresting Officer used two different implied consent forms. One
is identified as DL-26 (5-16), and the other is identified as DL-26B (6-16). Although
Arresting Officer testified one form had been destroyed in the mail, Licensee
obtained both forms in criminal discovery. Licensee contends it is concerning why
Arresting Officer chose to create a new form and submit it as the original.


             Fourth, the two forms are different. In Exhibit D-1, there is a gap
between the third and fourth paragraphs. In Exhibit D-2, there is no gap. In Exhibit
D-1, there is a blank space to fill in a chemical test. In Exhibit D-2, that sentence
does not exist.


             Fifth, Arresting Officer failed to sign the certification on either form
that he read the DL-26 to Licensee and gave her an opportunity to submit to testing.
Rather, he signed the third line saying that Licensee refused to sign after being
advised of the implied consent warnings.


             Based on the intentional altering of the audio on the dash-cam video,
which may have removed exculpatory evidence, and the two versions of the DL-26,




                                         14
which were not properly completed, Licensee requests that we hold that the trial
court erred or abused its discretion in finding Arresting Officer’s testimony credible.


                                     2. Analysis
             In its opinion in support of its order dismissing Licensee’s suspension
appeal, the trial court explained that it found Arresting Officer’s testimony to be
entirely credible, including his explanation for turning off the audio. Tr. Ct., Slip
Op., 7/7/17, at 6. Arresting Officer explained that he turned off the audio while
talking to his supervisor about how to proceed with the warnings to Licensee
following her refusal. Id.


             It is well settled that the trial court’s credibility determinations in a
license suspension appeal will not be second-guessed on appeal.            O’Connell;
Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 954 A.2d 761 (Pa.
Cmwlth. 2008). Determinations as to the credibility of witnesses and the weight
assigned to the evidence are matters solely within the province of the trial court as
fact-finder. Reinhart. Conflicts in the evidence are for the trial court to resolve and
are thus improper questions for appellate review. Id. Therefore, we must determine
whether a licensee refused chemical testing based on the facts found by the trial court
rather than those the appellant prefers. Id.


             Here, we decline Licensee’s invitation to reweigh the evidence and find
Arresting Officer’s testimony not credible. As discussed above, Arresting Officer
testified that he turned off the audio while talking to his supervisor about how to
proceed with the warnings to Licensee. N.T. at 27. He did not believe that his



                                          15
conversation with his supervisor had any evidentiary value. Id. The trial court
accepted this explanation as credible. As such, we will not disturb the court’s
findings on appeal. O’Connell; Reinhart.


             With regard to the DL-26 Forms, Arresting Officer explained that the
difference in the two forms resulted from the U.S. Supreme Court’s decision in
Birchfield. N.T. at 9. On both forms, which specifically stated they are used for
blood tests only, Arresting Officer signed the affidavit indicating that he placed
Licensee under arrest for DUI, he requested that she submit to a blood test as
authorized by 75 Pa. C.S. §1547, that he read her the implied consent warnings, and
she refused to submit to a blood test after having been read the warnings. Both DL-
26 Forms were admitted into evidence without objection.


             Consequently, we reject Licensee’s contention that the trial court erred
or abused its discretion in finding Arresting Officer’s testimony credible despite the
alleged alteration of the dash-cam audio and Arresting Officer’s use of multiple DL-
26 Forms. O’Connell; Reinhart.


                              C. Birchfield Analysis
                                    1. Argument
             Licensee next contends that Arresting Officer’s request for a blood test
without a warrant violated the U.S. Supreme Court’s decision in Birchfield. To that
end, Licensee acknowledges our holding in Boseman that the U.S. Supreme Court’s
decision in Birchfield does not apply to civil license suspensions and that the
requirement to obtain a warrant for a blood test applied only in criminal cases.



                                         16
Although Licensee concedes that refusing a blood test is not an offense included in
the Crimes Code, 18 Pa. C.S. §§101-9402, she asserts that the restrictions and
sanctions for refusing chemical testing are very similar to those imposed in a first
offense DUI conviction.


             Further, Licensee contends, there is a significant pending change in the
license renewal fee which is tied to whether the licensee has any DUIs or license
suspensions. Licensee posits that the increased license renewal fees for those with
refusal suspensions will be similar to criminal sanctions. Therefore, Licensee
argues, refusals to submit to chemical testing should be treated as a crime for
purposes of a Birchfield analysis. As such, Licensee requests that this Court
consider applying Birchfield to refusal cases under the Implied Consent Law.


             In response, DOT contends Licensee waived her Birchfield argument
by not raising it before the trial court. To that end, DOT points out that Boseman
was decided 12 days prior to Licensee’s appeal hearing. Therefore, DOT asserts
Licensee waived her Birchfield argument. Campbell v. Dep’t of Transp., Bureau of
Driver Licensing, 86 A.3d 344 (Pa. Cmwlth. 2014).
             Alternatively, DOT argues there is no merit to Licensee’s argument.
Birchfield addressed the constitutionality of a state statute that made it a crime to
refuse a warrantless blood test after being arrested for DUI. Although Birchfield
may impact criminal DUI cases in Pennsylvania, we note our repeated holdings that
Birchfield does not apply to civil license suspensions under the Implied Consent
Law. Marchese v. Commonwealth, 169 A.3d 733 (Pa. Cmwlth. 2017); Boseman.




                                         17
                                      2. Analysis
               A review of the hearing transcript before the trial court, including the
arguments presented, reveals no mention of Birchfield or Boseman by Licensee or
her counsel. In Campbell, we determined that the licensee waived a challenge to the
validity of the implied consent warning given by not raising that issue during the
appeal hearing.     We also rejected the licensee’s argument that she preserved the
issue under the Pennsylvania Rules of Criminal Procedure by raising it in her
statement of errors complained of on appeal. Noting a license suspension appeal is
a civil proceeding, we determined that the Rules of Criminal Procedure were
inapplicable. Campbell is directly on point here. Therefore, we hold that Licensee
waived her Birchfield challenge.


               Alternatively, we note that we have previously addressed and rejected
the argument that Birchfield should apply to refusals of chemical testing under
Pennsylvania’s Implied Consent Law. Birchfield, by its own language, applies only
to the imposition of criminal penalties for refusing to submit to a blood test. A
driver’s license suspension is civil, not a criminal penalty. Marchese; Boseman. In
short, it is not a crime to refuse chemical testing under 75 Pa. C.S. §1547(b)(1).
Therefore, we decline to revisit this issue based on anticipated increases in license
renewal fees which would be contingent upon a licensee’s history of civil license
suspensions.


                     D. Preliminary or Pre-Arrest Breath Test
                                     1. Argument




                                           18
             In her last argument, Licensee contends that her preliminary or pre-
arrest breath test satisfied the protocol for chemical testing under 75 Pa. C.S. §1547.
In support of her position, Licensee cites 75 Pa. C.S. §1547(c), which provides:

             (c) Test results admissible in evidence—In any summary
             proceeding or criminal proceeding in which the defendant
             is charged with a violation of section 3802 or any violation
             of this title arising out of the same action, the amount of
             the alcohol or controlled substance in the defendants’
             blood, as shown by chemical testing of the person’s breath
             or blood, which tests were conducted by qualified persons
             using approved equipment, shall be admissible in
             evidence.

             Licensee asserts that the DL-26 Forms specifically talk about a breath
or blood test being offered. Licensee acknowledges that PBTs are not typically
admissible to show a motorist’s blood alcohol level. However, given the confusing
statements by Arresting Officer in this case, Licensee argues that the use of the PBT
to counter the refusal is appropriate. Therefore, Licensee maintains the trial court
erred in not allowing the PBT to be used in this case.




                                     2. Analysis
             We disagree. The sole purpose of a pre-arrest breath test, authorized
by 75 Pa. C.S. §1547(k) for an individual suspected of DUI, is to assist the
investigating officer in determining whether the driver should be placed under arrest.
Ryan v. Dep’t of Transp., Bureau of Driver Licensing 823 A.2d 1101 (Pa. Cmwlth.
2003). The PBT serves the same purpose as other more familiar field sobriety tests
such as walking a straight line. Id. Refusal to perform a pre-arrest breath test cannot
be the basis for a license suspension. Id.


                                          19
             The second type of chemical testing, which is specified by the Implied
Consent Law, 75 Pa. C.S. §1547(a), is a post-arrest test to determine the alcoholic
content of the driver’s breath or blood. Obviously, refusal to submit to this testing
can result in a civil license suspension under the Implied Consent Law.


             In Ryan, we noted that in Appeal of Attleberger, 583 A.2d 24 (Pa.
Cmwlth. 1990), a licensee argued that his performance of the pre-arrest breath test
should relieve him from having to submit to a post-arrest blood test under the
Implied Consent Law. This Court, sitting en banc in Attleberger, rejected the
licensee’s argument that he deserved protection from the confusion resulting from
being asked by the police to submit to a blood test after having complied with their
previous request for a pre-arrest breath test.


             Similarly, in Ryan the licensee submitted to a pre-arrest breath test and
was later transported to a hospital for a blood test under the Implied Consent Law.
The licensee refused to submit to the blood test on the ground that she already
performed a PBT. Reversing the trial court’s order sustaining the licensee’s appeal
based on Attleberger, we noted that any confusion over the licensee’s responsibility
to submit to second type of test arose not from statements made by the police officer,
but solely from the licensee’s self-induced confusion over what the law is or should
be.


             Ryan is controlling here. Our decision in Ryan was later confirmed in
Sitoski, where this Court again rejected the argument that a licensee’s subjective



                                          20
confusion based on his completion of a PBT established that his refusal of chemical
testing was not knowing or conscious.


              Consequently, we discern no error in the trial court’s conclusion that
DOT was not obligated to accept Licensee’s PBT results as an alternative to a
chemical test of her blood.


                                      III. Conclusion
              For the above reasons, we discern no error or abuse of discretion by the
trial court in denying Licensee’s statutory license suspension appeal. Accordingly,
we affirm. Further, we grant DOT’s request to reinstate the one-year suspension of
Licensee’s operating privilege under 75 Pa. C.S. §1547(b)(1)(i).3



                                            ROBERT SIMPSON, Judge




       3
         By order dated May 18, 2017, the trial court granted a supersedeas of the suspension of
Licensee’s operating privileges pending the disposition of Licensee’s appeal to this Court. See
Certified Record, Item #6.


                                              21
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nicole Park,                               :
                           Appellant       :
                                           :
               v.                          :   No. 522 C.D. 2017
                                           :
Commonwealth of Pennsylvania,              :
Department of Transportation,              :
Bureau of Driver Licensing                 :


                                       ORDER

               AND NOW, this 19th day of January, 2018, for the reasons stated in the
foregoing opinion, the order of the Court of Common Pleas of York County is
AFFIRMED.           Further, the Department of Transportation, Bureau of Driver
Licensing, is hereby directed to REINSTATE the one-year suspension of Nicole
Park’s operating privilege under 75 Pa. C.S. §1547(b)(1)(i).




                                        ROBERT SIMPSON, Judge
