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Miller 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 Barbara Etta Miller (Licensee) from a one-year suspension of her operating privilege imposed by DOT pursuant to Section 1547(b)(1)(i) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b)(1)(i). 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.
By official notice dated April 19, 2004, DOT notified Licensee that as a result of her refusal to submit to chemical testing on February 15, 2004, her operating privilege was being suspended pursuant to Section 1547(b)(1)(i) of the Code. Licensee filed a statutory appeal and, on October 25, 2004, a hearing was held before the trial court.
At the hearing, Officer John C. McEwen of the Manheim Township Police Department testified that he arrested Licensee for driving under the influence of alcohol (DUI) on February 15, 2004. Officer McEwen stated that on that night, he responded to a call about an erratic driver and came upon Licensee's vehicle in a private parking lot near Fruitville Pike, a public highway in Lancaster County. The vehicle's engine was running and its transmission was in park. Several witnesses pointed out Licensee to the officer and described her driving.
Upon approaching Licensee, Officer McEwen noticed an odor of alcohol on Licensee's breath from about four feet away. Licensee's stories were inconsistent; at first, Licensee claimed to be diabetic and the officer called for an ambulance. Licensee then stated that she was not diabetic. The ambulance personnel examined Licensee, who refused transport to the hospital. The medical personnel did not find any indications of a medical problem. Another police officer brought a portable breath-testing unit to the scene in order to confirm that there was alcohol on Licensee's breath. Licensee, however, refused to submit to the test. She was then placed under arrest and transported to a hospital where she was asked to submit to chemical testing.
At the hospital, Officer McEwen read Licensee the chemical test warnings in the December 2003 edition of DOT's DL-26 form. Specifically, Officer McEwen read the following warnings:
1. Please be advised that you are under arrest for in violation of Section 3802 of the [Code].
2. I am requesting that you submit to a chemical test of Blood (blood, breath or urine. Officer chooses the chemical test).
3. It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended forat leastone year. In addition, if you refuse to submit to the chemical test, and you are convicted of, plead to, or adjudicated delinquent with respect to violating Section 3802(a) of the [Code], because of your refusal, you will be subject to the more severe penalties set forth in Section 3804(c) of the [Code, 75 Pa. C.S. § 3804(c)], which include a minimum of 72 hours in jail and a minimum fine of $1,000.00.
4. It is also my duty as a police officer to inform you that you have no right to speak with an attorney or anyone else before deciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or remaining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privile
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