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Maletic v. Commonwealth3/26/2003
Submitted: February 5, 2003
The Department of Transportation, Bureau of Driver Licensing (Department) appeals from the order of the Court of Common Pleas of Allegheny County, which sustained the appeal of Karen L. Maletic (Licensee) from the suspension of her operator's license. We reverse.
On December 18, 2000, the Department notified Licensee that her operating privileges were being suspended for one year pursuant to Section 1547 of the Vehicle Code, 75 Pa. C.S. §1547, for refusing to submit to a chemical test on November 22, 2000. She filed a timely appeal and the matter was heard de novo before the trial court. Testifying for the Department was Officer Michael Baird. Licensee testified on her own behalf. The trial court made the following pertinent findings.
On November 22, 2000, Officer Baird was dispatched to the site of a single-vehicle accident, where he observed Licensee's vehicle on its side with her trapped inside. When the officer offered help, Licensee responded that she was all right and that he should not call the police. An emergency medical service team extracted Licensee from the vehicle and transported her to the hospital. Prior to Licensee's going to the hospital, however, Officer Baird questioned her about the accident. She stated that she did not know how the accident occurred, but she did admit to drinking prior to the event. The officer detected a strong odor of alcohol on Licensee's breath, noted that she slurred her words, there was a case of beer in Licensee's vehicle and that Licensee had a lump on her head.
After Officer Baird spent one-half hour at the accident scene investigating, he went to the hospital where he found Licensee in the emergency room on a gurney. Medical personnel were treating her when he arrived, and he noticed that they were extracting blood from her for medical purposes. The officer told her, while she was lying on the gurney, that she was under investigation for driving while under the influence. He then read to her Form DL-26, which sets forth the warnings in accordance with Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). Form DL-26 includes the statement: "Please be advised that you are now under arrest for driving under the influence of alcohol or a controlled substance pursuant to Section 3731 of the Vehicle Code."
After reading the form to Licensee, Officer Baird requested several times that she consent to having blood drawn for "legal" as well as medical purposes. Licensee refused, even after being warned, once again, pursuant to O'Connell. Officer Baird then left the emergency room, deeming Licensee's action a refusal to consent to a blood test.
Officer Baird testified both that Licensee was not under arrest at the time he read the Form DL-26 to Licensee, and that he considered his reading of the form as placing Licensee under arrest. Aside from his verbatim reading of the Form DL-26, he did not tell Licensee that she was under arrest or was not free to leave. He did not give the form to Licensee to read, and he did not know whether Licensee understood what he was reading to her. He also stated that he never physically arrested Licensee or took her into custody. He testified that, had she not been injured, he would have arrested her, but stated that he did not arrest her.
Licensee testified that she did not recall the officer reading anything to her. She further testified that it was possible that the officer did read the form to her, but there was too much going on in the emergency room for her to recall. She stated that she was never told that she was under arrest. At the hearing, her position was that the lic
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