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Petohazi v. Commonwealth11/1/2005
such testing or an officer deems a licensee to have refused to submit to such testing, licensee's ability to consent to the test has essentially ceased.
Thus, as the record lacks competent evidence in support of the trial court's finding that that Licensee had satisfied his burden of proving that he was incapable of making a knowing and conscious decision to refuse chemical testing, we must conclude that the trial court erred in reaching this finding.
Finally, DOT argues that the trial court erred as a matter of law to the extent that it concluded that Licensee did not refuse chemical testing due to his consent to undergo such testing following his signing of the DL-26 form. Once more, we agree with DOT.
The law is well settled that anything less than a licensee's unqualified, unequivocal assent to submit to chemical testing constitutes a refusal. See King v. Department of Transportation, Bureau of Driver Licensing, 828 A.2d 1 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, ___ Pa. ___, 848 A.2d 931 (2002); Cunningham v. Department of Transportation, 525 A.2d 9 (Pa. Cmwlth. 1987). Moreover, we have previously held that a refusal to take the test is not vitiated by a subsequent request to take the test, even if this subsequent request was made within a few minutes of the refusal. See Cunningham (licensee's request to take the test made only five minutes after initial refusal); Appeal of Miller, 470 A.2d 213 (Pa. Cmwlth. 1984) (licensee's request to take the test made only fifteen to twenty minutes after two separate refusals).
In this case, Licensee never disputed that he initially refused to submit to chemical testing. In fact, Licensee testified that he refused Sergeant Fetzko's initial request to submit to a blood test. See R.R. at 37a, 41a. After much discussion at the police station, Licensee continued to refuse to submit to such testing and he eventually signed the DL-26 form acknowledging that he had been advised of the Implied Consent warnings. A couple of minutes after signing the DL-26 form, maybe even approximately five minutes later, Licensee indicated that he informed either Sergeant Fetzko or Officer Ponn that he was willing to submit to the chemical testing. See R.R. at 38a, 42a. However, Sergeant Fetzko advised Licensee that it was too late as he had already deemed Licensee to have refused the testing.
Sergeant Fetzko's deemed refusal in this case is consistent with our previous decisions on this issue. King; Cunningham; Appeal of Miller. Thus, we must agree with DOT that the trial court erred as a matter of law to the extent that it concluded that Licensee did not refuse chemical testing due to his consent to undergo such testing following his signing of the DL-26 form.
Accordingly, the order of the trial court is reversed.
ORDER
AND NOW, this 1st day of November, 2005, the order of the Court of Common Pleas of Allegheny County is hereby reversed. The one-year suspension of the operating privilege of Frank Petohazi imposed by the Department of Transportation, Bureau of Driver Licensing is hereby reinstated.
JOSEPH F. McCLOSKEY, Senior Judge
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