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Smith v. Commonwealth10/11/2005
The Department of Transportation (DOT) appeals from the December 23, 2004 order of the Court of Common Pleas of Lancaster County (trial court) that sustained the statutory appeal of Thomas J. Smith (Licensee) from an 18-month suspension of his operating privilege imposed by DOT pursuant to Section 1547(b)(1)(ii) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b)(1)(ii). DOT contends that the trial court erred in determining that the chemical test warnings printed on the December 2003 edition of DOT's DL-26 form are legally insufficient to meet the statutory requirements for such warnings imposed by Section 1547(b)(2) of the Code, 75 Pa. C.S. § 1547(b)(2). We reverse.
At the October 25, 2004 trial court hearing on Licensee's suspension appeal, Officer Brian Dilliplaine of the East Cocalico Township Police Department testified that at approximately 1:47 a.m. on April 25, 2004, he observed Licensee's vehicle, a red Pontiac Firebird, driving down the center of South Ream Road in Cocalico Township. The officer followed the vehicle, which was traveling approximately 15 miles per hour, braking and then increasing and decreasing speed. Officer Dilliplaine pulled the vehicle over and Licensee opened the door and tried to get out. The officer told Licensee to remain in the vehicle.
Upon approaching Licensee and speaking with him, Officer Dilliplaine smelled an obvious odor of alcohol on Licensee's breath. Licensee's eyes were red and glassy, and he had trouble speaking. Officer Dilliplaine administered field sobriety tests, which Licensee failed. Licensee was then placed under arrest for driving under the influence of alcohol (DUI), a violation of Section 3802 of the Code, 75 Pa. C.S. § 3802.
Licensee was then transported to the Ephrata Community Hospital for a blood test. At the hospital, Officer Dilliplaine read Licensee the chemical test warnings printed on DOT's DL-26 form. Officer Dilliplaine testified that he read paragraphs 1, 2, 3 and 4 in their entirety to Licensee. The officer also testified that Licensee did not appear to be confused and that he acknowledged that he had been drinking and that he saw no reason to give blood if he knew he was guilty. As a result, Officer Dilliplaine reported Licensee's response as a refusal. A certified copy of the DL-26 form that Officer Dilliplaine read to Licensee was admitted into the record.
Licensee did not present any evidence at the hearing. By order dated December 23, 2004, the trial court sustained Licensee's appeal based on the court's decision in Brill v. Dep't of Transp., Bureau of Driver Licensing, No. CI-04-03547 (C.C.P. Lancaster 2004). In its March 24, 2005 opinion in support of its order, the trial court stated:
In accordance with Brill, the Court finds that simply reading Form DL-26 to a person suspected of a DUI violation, is not sufficient to inform them of the possible criminal penalties associated with their refusal of chemical testing where they have prior DUI charges. Form DL-26 merely lists the minimum criminal penalties for a first time offender and does not address either minimum or maximum penalties for anything beyond the first offense. As stated in Brill, this Court appreciates the fact that the local authorities attempt to keep the warnings which they must give concise and clear, but "the need for brevity does not alleviate the statutory duty to inform." Brill at p.4. Based upon Officer Dilliplaine's testimony in this case that the only discussion of penalties he had with [Licensee] consisted of the language on the Form DL-26, the Court finds the officer inadequately informed [Licensee] about the criminal penalties of a refusal as they apply to his situation.
Trial Co
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