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Reardon v. Commonwealth11/21/2005
Eugene Arthur Reardon (Reardon) appeals from an order of the Court of Common Pleas of Monroe County (trial court), which denied Reardon's appeal from the order of the Department of Transportation, Bureau of Driver Licensing (Department) suspending his operating privilege for a period of one year. We affirm.
By notice dated October 20, 2004, the Department notified Reardon that, as a consequence of his refusal to submit to chemical testing in relation to his arrest for driving under the influence on September 17, 2004, his operating privilege was being suspended for one year as required by Section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1). Reardon filed a statutory appeal from the one-year suspension pursuant to Sections 1547(b)(3) and 1550(a) of the Vehicle Code with the trial court. A de novo hearing on Reardon's statutory appeal was held on February 23, 2005.
Based upon the testimony and evidence presented, the trial court made the following findings. On September 17, 2004, Reardon operated a motor vehicle which was stopped by a security officer after entering the Locust Lake development in Tobyhanna Township, Monroe County, Pennsylvania. When a police officer arrived at the scene, he detected a strong odor of alcohol about Reardon who was standing outside his vehicle. When Reardon failed a dexterity test administered by the officer and refused to perform other field sobriety tests, the officer placed him under arrest for driving under the influence of alcohol. The officer read to Reardon revised Department Form DL-26, which explains the consequences of refusing to submit to chemical testing, and transported him to the Pocono Medical Center so that Reardon could provide a blood sample for chemical testing. Reardon refused to submit a blood sample for chemical testing.
The trial court concluded that the police officer had reasonable grounds to believe that Reardon had been operating his motor vehicle while under the influence of alcohol. Reardon was arrested and asked to submit to a chemical test. Reardon was advised that his refusal would result in a license suspension for a period of one year. Reardon made a knowing and conscious refusal. Accordingly, by order dated February 28, 2005, the trial court denied Reardon's statutory appeal and upheld the one-year suspension of his operating privilege. This appeal now follows.
Reardon raises the following issues for our review:
1. Does a motorist arrested under the new Driving After Imbibing Law have a constitutional right to consult with an attorney prior to deciding whether to submit to a blood test?
2. May the Department impose an additional penalty over and above the enhanced criminal penalty for the act of refusing to undergo a blood test especially considering that the petition for nolle prosequi was filed and granted on the underlying DUI charge?
3. Are the chemical testing warnings contained in revised form DL-26 insufficient to enable a driver to make a knowing and conscious decision whether to submit to a blood test especially when a licensee is functionally illiterate?
First, Reardon contends that a motorist arrested under the new Driving After Imbibing Law now has a constitutional right to consult with an attorney prior to deciding whether to submit to a blood test. We disagree.
The Act of September 30, 2003, P.L. 120, (Act 24) amended Titles 18 (Crimes and Offenses), 42 (Judiciary and Judicial Procedure) and 75 (Vehicles) of the Pennsylvania Consolidated Statutes. McKeown v. Department of Transportation, Bureau of Driver Licensing, 869 A.2d 556 (Pa. Cmwlth. 2004). Act 24 creates a new Chapter 38 in the Vehicle Cod
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