Wednesday, July 23, 2008

drivers license - refusal to take breath test - clear warning

Yourick v. DOT - Commonwealth Court- July 23, 21008

Alas, poor Yourick!

She was arrested for DUI and asked to take a blood alcohol test, which she refused. DOT then proposed to suspend her license because of that refusal, and she appealed. And what ho! The warning that the police gave to her about the consequences of a refusal to submit to such testing was held to be ambiguous and not "legally sufficient" to make her refusal knowing and conscious.

The warning stated that "if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence." (emphasis added) Claimant testified that she understood this to mean that her license would not be suspended if she refused chemical testing because she never had a prior refusal and had never before been sentenced for driving under the influence. She voiced her concern about this to the officer, who told her only that she didn't have a right to speak to anyone about this.

The trial and appellate courts found Licensee's understanding to be a "reasonable interpretation. Construing the ambiguous language against the Department as the drafter of the warnings, as we must, we hold that the warning given to Licensee was not sufficient to specifically warn her that a refusal to submit to chemical testing would result in the suspension of her operating privilege. As such, the Department failed to meet its burden of proof and the trial court did not err in sustaining Licensee’s appeal."

The Department reads the above-recited first “if clause” to apply to the entire provision, meaning that any refusal will result in a 12-month suspension and, further, that suspension could be increased to 18 months if the licensee has a history of prior refusals or convictions. However, the warning can be read another way. The qualifying language at the end of the sentence, i.e., “if you have prior refusals or have been previously sentenced…,” can be read to apply to the entire warning. Read that way, the suspension penalty applies only if the licensee has previously refused a test or previously been sentenced. The resulting suspension can range between 12 and 18 months. A passage that can be read two ways is ambiguous, and it is axiomatic that any ambiguity is to be construed against the drafter of the document if the other party’s interpretation is reasonable.

The trial court correctly found that the warning was "poorly drafted and vague, since a comma was placed randomly where perhaps a period might have been” and concluded that this vague language confused the Licensee and prevented her from making a knowing and conscious refusal to submit to chemical testing and that, therefore, a suspension was not warranted. N.B. Claimant's prior employment involved extensive work at a medical center, interpreting consent and waiver forms.

To sustain a license suspension under sec. 1547 of the Vehicle Code, DOT must prove that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver’s license. The last prong of the Department’s burden requires “a precisely enunciated warning that a driver’s license will be revoked.” If the Department meets its initial burden, the burden then shifts to the licensee to show that her refusal was not knowing or conscious or that she was physically unable to take the test. Where a licensee is not adequately informed of the consequences of a refusal, it is irrelevant whether the refusal to submit to chemical testing was knowing and conscious.

The "issue is whether the warning given to Licensee was legally sufficient The law required the Department to prove that Licensee was specifically warned that a refusal to submit to chemical testing would result in the suspension of her driving privilege. We conclude that the Department was not able to meet its burden in this regard."