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Degnan v. Commonwealth1/14/2004
er or attorney. Kolaczynski v. Dep't of Transp., Bureau of Driver Licensing, 657 A.2d 522 (Pa. Cmwlth. 1995).
Degnan does not cite, nor have we located, any case that stands for the proposition that failure to use the DL-26 form is fatal to PennDOT's suspension of a licensee's operating privilege under Section 1547. While a DL-26 form satisfies the minimum requirements for a proper O'Connell warning, Kolaczynski at 527, no case holds DL-26 must be used or the O'Connell requirement is not satisfied.
In fact, this Court affirms license suspensions under Section 1547 where DL-26 is not used, so long as the police officer gave the proper O'Connell warning. See, e.g., Foore v. Dep't of Transp., Bureau of Driver Licensing, 739 A.2d 619 (Pa. Cmwlth. 1999) (affirming license suspension under Section 1547 where officer gave O'Connell warning verbally; no mention of DL-26); Purcell (same).
Accordingly, Officer Wenzel's failure to use form DL-26 is not fatal to PennDOT's suspension of Degnan's license.
In his brief, Degnan argues, " t is probable that the officer's deviation from standard practices included a failure to specifically request further testing à. he evidence supports Defendant's contention that he was never asked to provide [blood] samples." Appellant's Br. at 12. It is clear Degnan's appeal is a challenge that the trial court's finding he was aware of his rights is not supported by competent evidence.
However, we are required to view the evidence in the light most favorable to the party that prevailed before the fact-finder. Hatalski v. Dep't of Transp., Bureau of Driver Licensing, 666 A.2d 386 (Pa. Cmwlth. 1995). Further, questions of credibility of witnesses and conflicts in the evidence are properly left to the trial court to resolve. O'Connell; Purcell (" onflicts in testimony and credibility determinations are to be made by the trial court.").
In Millili v. Dep't of Transp., Bureau of Driver Licensing, 745 A.2d 111 (Pa. Cmwlth. 2000), the licensee claimed he was never given the opportunity to submit to chemical testing, while the police officer testified he gave the licensee a proper O'Connell warning twice. This Court noted,
he Common Pleas Court received conflicting testimony concerning whether or not [licensee] was asked to submit to a chemical test, as well as whether he refused to take that test. Reconciling this conflict, the Common Pleas Court determined that [licensee] had been asked to submit to the test, but refused. Accordingly, we will not reverse that determination on appeal.
Id. at 114 (emphasis in original). Millili controls the current appeal and supports affirmance.
ROBERT SIMPSON, Judge
ORDER
AND NOW, this 14th day of January, 2004, the order of the trial court is affirmed.
ROBERT SIMPSON, Judge
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