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Reardon v. Commonwealth11/21/2005
the penalties imposed upon conviction for violating the prohibition in Section 3802 against driving under the influence. However, the delivery of the warning in paragraph four of the DL-26 form adequately and accurately informs that a request for counsel will be treated as a refusal for purposes of the civil suspension under the Implied Consent Law.
Garner, 879 A.2d at 331 (footnote and citation omitted).
Nothing in Act 24 has changed the nature of the chemical testing procedure under the Implied Consent Law. The fact that a licensee's refusal to submit to chemical testing may now be used by the Commonwealth as a factor to enhance a licensee's penalty if the licensee is later convicted for a Section 3802 offense does not affect the civil nature of a suspension imposed under the Implied Consent Law. A motorist requested to submit to chemical testing is only entitled to O'Connell warnings and is not entitled to consult with an attorney prior to deciding whether to submit or refuse. Witmer; Garner. For these reasons, we conclude that the trial court did not err in determining that Reardon had no constitutional right to consult with an attorney prior to deciding whether to submit to a blood test.
Reardon further contends that the Department cannot 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 DAI charge and that the chemical testing warnings contained in revised form DL-26 are insufficient to enable a driver to make a knowing and conscious decision whether to submit to a blood test especially given Reardon's functional illiteracy. Unfortunately, Reardon did not raise these issues at the de novo hearing before trial court and did not include these issues in his Pa. R.A.P. 1925(b) statement of matters complained of on appeal. R.R. at 3. As a result, these issues are waived. Pa. R.A.P. 302(a); Pa. R.A.P.1925(b); Commonwealth v. Lord, 553 Pa. 415, 719A.2d 306 (1998).
Accordingly, the order of the trial court is affirmed.
AND NOW, this 21st day of November, 2005, the order of the Court of Common Pleas of Monroe County, dated February 28, 2005, at No. 9432 CIVIL 2004, is AFFIRMED.
JAMES R. KELLEY, Senior Judge
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