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Zimmerman v. Commonwealth11/18/2003
ute a "request to submit to chemical testing" as required by Section 1547(b). In this case, the record indicates that Corporal Sjostrom was requesting a blood test from Licensee regardless of whether he read the request from the Form or asked Licensee in his own words. Either way, a request is a request, particularly because the request Corporal Sjostrom read to Licensee at least three different times was, "I am requesting that you submit to a chemical test of blood" and particularly because Licensee was seated in the lab room awaiting blood to be drawn by a lab technician. Officers need not make multiple, fruitless requests of licensees to submit to chemical tests when the circumstances indicate that no response is forthcoming. One unequivocal request for chemical testing read verbatim from the Form, as in the case before us, will suffice. Because Corporal Sjostrom's request was sufficient, the trial court did not err.
Licensee next argues that he never refused any chemical test. It is well-settled that anything short of an unqualified, unequivocal assent to submit to a chemical test is a refusal. Balthazar v. Department of Transportation, Bureau of Driver Licensing, 553 A.2d 1053 (Pa. Cmwlth. 1989), petition for allowance of appeal denied, 525 Pa. 586, 575 A.2d 116 (1990). Refusal need not be expressed in words, but can be deduced or implied by a licensee's actions. Finney v. Department of Transportation, Bureau of Driver Licensing, 721 A.2d 420 (Pa. Cmwlth. 1998). Here, the actions of Licensee in this case, taken as a whole and which are supported by the record, indicate that Licensee was obviously under the influence and clearly uncooperative from the time he was detained by Wilson to his placement in the police car to his words at the hospital. At no time during Corporal Sjostrom's multiple recitations of the Form and requests to take a blood test did Licensee "unequivocally assent" to any chemical test.
Finally, Licensee argues that under Department of Transportation, Bureau of Driver Licensing v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996), his refusal, if any, was a refusal to sign the Form and thus cannot constitute a refusal to submit to chemical testing. In Renwick, however, our Supreme Court made clear that although mere failure to sign an implied consent form is not a refusal per se, conduct by a licensee indicating a refusal to submit to chemical testing is a refusal, even if such conduct is coupled with a statement by a licensee that he or she would submit to testing. In this case, to put it mildly, there was no assent by Licensee to a chemical test, his actions show that he was completely uncooperative, and he refused to assent to anything. Though his refusal to sign the implied consent form, coupled with unequivocal assent to submit to chemical testing, would not constitute a refusal, such is not the case based on the facts before us.
Accordingly, the order of the trial court dismissing Licensee's appeal and reinstating his suspension is affirmed.
ORDER
AND NOW, this 18th day of November, 2003, the order of the Court of Common Pleas of Chester County, dated February 4, 2003, at No. 00-10362, is affirmed.
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