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Zimmerman v. Commonwealth11/18/2003
Scott G. Zimmerman (Licensee) appeals from an order of the Court of Common Pleas of Chester County (trial court) dismissing his statutory appeal from a one-year license suspension issued by the Department of Transportation, Bureau of Diver Licensing (Bureau) for refusing to submit to chemical testing pursuant to Pennsylvania's Implied Consent Law (Implied Consent Law).
By official notice dated November 9, 1999, the Bureau informed Licensee of his license suspension for refusing a chemical alcohol test. Licensee appealed his suspension. At the hearing before the trial court, the Bureau presented the testimony of Officer Susette Wilson (Officer Wilson ) with the East Pikeland Police Department. She testified that on October 20, 1999, at approximately 2:30 p.m., she received a dispatch from the Chester County radio room that there was an erratic driver traveling on a road in Phoenixville Borough in a green Ford Bronco. While proceeding to the location of the Bronco, Officer Wilson was told that the Bronco pulled into the Alpha Health Spa parking lot. After she determined that the driver was Licensee, she entered the spa and asked the receptionist there to have him step outside. Officer Wilson observed that Licensee appeared to be highly intoxicated because he was very unsteady on his feet, his eyes were glassy, and he smelled like alcohol. She then asked if he had been drinking to which he responded affirmatively.
The Bureau also called Corporal Thomas Sjostrom (Corporal Sjostrom) of the Phoenixville Police Department. He testified that when he arrived at the scene, he observed that Licensee smelled like alcohol, had slurred speech, and had bloodshot eyes. When he asked Licensee to step forward so he could administer a field-sobriety test, Licensee stumbled and fell but never hit the ground because he caught him. At that time, he placed Licensee under arrest for DUI, placed him in handcuffs, and attempted to place him in the police car. Because Licensee did not enter the car and would not sit down, Corporal Sjostrom had to physically force him into the back seat and force him to bend in a way that he would sit in the back seat.
Corporal Sjostrom then testified that he escorted Licensee to the Phoenixville Hospital, took him to a lab room where his handcuffs were removed, and placed him in a chair used by lab technicians to draw blood. This chair had a pad or bar that closes in order to secure patients seated therein. During this time, Licensee was very loud and continuously used vulgar language despite Corporal Sjostrom's request that Licensee remain quiet.
In the presence of another officer, a lab technician, and a security guard, Corporal Sjostrom testified that he attempted to read Form DL-26 (Form) to Licensee verbatim. Because Licensee interrupted him by shouting obscenities and mumbling continuously, he had to read the Form to Licensee at least three different times. After the final reading of the Form in its entirety, he gave Licensee the opportunity to read it and, if he agreed, to sign it. At that point, Licensee took the pen, threw it across the room, and shouted, "fuck you guys." Corporal Sjostrom testified that Licensee's demeanor up to that point, coupled with his statement, led him to believe that Licensee refused the blood test. Licensee did not testify at the hearing.
The trial court issued an order dismissing Licensee's appeal and reinstating his suspension, reasoning that Corporal Sjostrom, in fact, requested that Licensee submit to a blood test and, under the circumstances, Licensee refused the test. This appeal followed.
Licensee's first argument is essentially that a verbatim recitation of the Form cannot constit
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