Thursday, November 05, 2009

drivers license - refusal to take chemical test - location of request/refusal - silence

Deal v. PennDOT - Cmwtlh. Court - November 5, 2009 - unpublished memorandum opinion

http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/344CD09_11-5-09.pdf

silence - In Broadbelt v. DOT, 903 A.2d 636 (Pa. Cmwlth. 2006), our court determined that the licensee’s silence when asked to submit to chemical testing after having been read the DL-26 form, constituted a refusal in violation of Section 1547 of the Vehicle Code. This court has consistently held that “police officers are not required to spend effort either cajoling the [licensee] or spend time waiting to see if the [licensee] will ultimately change his mind.” King v. DOT, 828 A.2d 1, 5, n.8 (Pa. Cmwlth.), appeal denied, 577 Pa. 738, 848 A.2d 931 (2002)

location of request/refusal - Our Supreme Court in DOT v. Scott, 546 Pa. 241, 253, 684 A.2d 539, 545 (1996), stated that: the police must advise the motorist that in making this decision, he does not have the right to speak with counsel, or anyone else, before submitting to chemical testing, and further, if the motorist exercises his right to remain silent as a basis for refusing to submit to testing, it will be considered a refusal and he will suffer the loss of his driving privileges.

[I]t would be absurd for an officer to drive a licensee to the situs of the breath, blood or urine testing equipment, which could be miles away from the scene of arrest, in order to allow the licensee to look at the equipment prior to the licensee’s silence being considered a refusal. Requiring a police officer to drive the licensee to the situs of testing when the licensee has already been properly warned but has refused chemical testing, either explicitly or through his silence, would fail to serve the purposes of the current Implied Consent Law and would be a waste of valuable and limited police, and State Trooper, resources.

As police officers are now required to give licensees warnings prior to asking them to consent to chemical testing, and such warnings state that “remaining silent when asked to submit to chemical testing will constitute a refusal,” remaining silent will constitute a refusal, irrespective of where the licensee is at the time the warnings are given.

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