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Hopkins v. Commonwealth11/13/2003
Clark J. Hopkins (Licensee) appeals from an order of the Court of Common Pleas of Bucks County (trial court), dismissing his appeal from a one-year suspension of his operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (PennDot) as a result of his refusal to submit to chemical testing pursuant to Section 1547(b)(1) of the Vehicle Code (Code), 75 Pa. C.S. §1547(b)(1)(Implied Consent Law). We affirm.
Following the appeal of the one-year suspension of Licensee's driver's license imposed by PennDot, a de novo hearing was conducted by the trial court. At this hearing, PennDot presented the testimony of Kathleen McGurney, a police officer with the Warwick Township Police Department. She testified that after stopping Licensee's vehicle, she noticed that Licensee smelled of alcohol and had bloodshot eyes. At that time she called for back-up. She then gave Licensee a series of sobriety tests, all of which he failed. He was then placed under arrest for driving under the influence of alcohol and she requested that he take a blood alcohol test. Officer McGurney stated that Licensee responded that he had not been drinking and that he would not agree to have blood drawn. She stated that she warned him twice that, under the Implied Consent Law, he would lose his operating privileges for one year if he refused. She then read the implied consent warning to him and asked him if he understood the warning and the consequences. She stated that Licensee replied that he understood. She told him that she was signing the form that he had been warned of the consequences of his refusal to take the test.
Officer McGurney then transported Licensee to the police station. She testified that while driving to the station, she told Licensee that she would still take him to the hospital for a blood test if he wanted. She stated that at first he claimed he was refusing the test because he was afraid of needles. However, she offered him the option of taking a urine test, but he still refused. When they arrived at the station, Officer McGurney stated that she showed him the implied consent form and asked him to sign it, which he did.
Officer McGurney testified that about forty-five minutes after he signed the form, Licensee stated that " aybe I should take the test." (R.R. at 30). She then went to her supervisor to advise him of Licensee's statement. She noted that by then Licensee had already had water to drink and had urinated. Licensee was not given another opportunity to take the test.
On cross-examination, counsel for Licensee noted that Officer McGurney had first told Licensee of the Implied Consent Law in her own words and then later showed him the printed form which set forth the Law. She was questioned as to whether she had first told him that if he did not submit to the test "there a chance" he would lose his license. (R.R. at 22). Counsel asked if she told Licensee that if he refused, there was only a chance that he would lose his license for a year. Officer McGurney replied that as he had not yet refused to submit to the test; she was only explaining the risks to him. She stated that she was informing him that there was still an opportunity not to lose his license if he agreed to the test and that she told him that his license would be suspended if he refused.
PennDot then called Edward Loux, a police officer with the Warwick Township Police Department, as its next witness. He testified that he observed Licensee take, and fail, the field sobriety tests. He also observed Licensee complete a portable breath test and register a blood alcohol reading of.14. (R.R. at 42). He then went to do a search of Licensee's vehicle. At that time
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