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Grech v. Commonwealth10/14/2005
Charles J. Grech (Licensee) appeals an order of the Court of Common Pleas of Monroe County that denied his statutory appeal from a one-year suspension of his operating privilege pursuant to Section 1547(b)(1) of the Vehicle Code (Implied Consent Law).
By official notice, dated January 13, 2005, the Department of Transportation, Bureau of Driver Licensing (DOT), notified Licensee that his operating privilege was being suspended for a period of one year as a consequence of his reported refusal to submit to chemical testing. Licensee appealed to the trial court on January 21, 2005. A de novo hearing was ordered and a supersedeas of his suspension was granted on January 24, 2005.
At the de novo hearing, Police Officer John Zito testified that, on December 29, 2004, he was dispatched to an accident scene wherein Licensee ran into the rear of another car on Route 191 in Stroud Township, Monroe County. Upon arriving at the scene, Officer Zito encountered Licensee, who exhibited an odor of alcohol and "questionable" speech. (Test. at 4.) Officer Zito called for assistance and Officer Robert Eberle arrived at the scene. Upon arrival, Officer Eberle testified that Licensee "displayed an odor of an alcoholic beverage upon his person, and also displayed slurred speech." Id. at 7. Licensee was requested to perform two field sobriety tests, both of which he failed. Id. at 7-8.
Officer Eberle placed Licensee under arrest for driving under the influence of alcohol (DUI). Id. Officer Eberle verbally advised Licensee that he would be requested to submit a blood sample for chemical testing and, if he refused, his license would be suspended for one year to eighteen months with the possibility of enhanced penalties for a criminal conviction. Id. at 9. Officer Eberle also advised Licensee that he had no right to speak to an attorney before deciding whether to take the blood test. (Test. at 9.) Officer Eberle then presented Licensee with a revised Form DL-26 which explains the consequences of refusing to submit to chemical testing. Licensee signed the revised Form DL-26 acknowledging that he had been advised of his rights. Id. at 10. When Officer Eberle requested Licensee to provide a blood sample for chemical testing, Licensee refused to do so in an animated and belligerent manner. Id. at 9. Officer Eberle then reported the refusal to DOT.
Licensee did not testify at the de novo hearing. However, his counsel argued that the revised Form DL-26 is not sufficient to comply with the requirements pursuant to Section 1547 of the Implied Consent Law and that, as a result of recent amendments to Pennsylvania's DUI law, the constitutional right to counsel is now implicated.
The trial court issued an order and opinion on April 25, 2005 denying Licensee's appeal. The trial court held that the revised Form DL-26 is sufficient to enable a driver to make a knowing and conscious decision of whether to submit to chemical testing, especially in light of the fact that he was given an opportunity to read the revised Form DL-26 and was also provided a verbal explanation of his rights as indicated on the form. (Trial Ct. Op. at 4.) The trial court also determined, by relying on Dep't of Transp., Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539 (1996)(finding that sanctions imposed by the Implied Consent Law are wholly separate and unrelated to the consequences of a criminal DUI prosecution), that a licensee is not entitled to speak to counsel prior to deciding whether to submit to chemical testing. The trial court went on to state that "nothing in the new provision of the Vehicle Code changes that conclusion." (Trial Ct. Op. at 5.) In finding that Licensee was advised of th
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