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Kramer v. Commonwealth of Pennsylvania12/12/2005
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Bucks County that sustained the appeal of Stephanie L. Kramer from DOT's suspension of her driver's license for one year after receipt of a report that she refused to submit to chemical testing for blood alcohol content. DOT questions whether the arresting officer provided Kramer with a meaningful opportunity to assent to testing before considering her conduct to constitute a refusal and whether her uncooperative and obstructive behavior prevented and excused the officer from providing full warnings required under the act known as the Implied Consent Law, 75 Pa. C.S. §1547, as amended, and under Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). DOT also questions whether Kramer met her burden to establish that she was incapable due to injuries received in a single-vehicle crash of making a knowing and conscious refusal.
The trial court found that on December 5, 2005 Officer Michael Lubold of the Middletown Township Police Department was called to the scene of a one-vehicle accident involving a car operated by Kramer. The car had struck a telephone pole, snapping it in two, and had gone down an embankment and come to rest in some small trees and brush. Kramer was able to notify her father at their home nearby, and he arrived before emergency personnel or the police. Officer Lubold noticed that Kramer was extremely upset, crying uncontrollably at times, but he also noticed a strong odor of alcohol, slurring of words and other signs of intoxication. Kramer was unable to answer his questions about how the accident occurred and where she was coming from; she could not answer emergency personnel's questions about the day of the week and the identity of the President.
The emergency personnel transported Kramer to the hospital roughly six miles away. Officer Lubold followed, and Kramer's father followed also after stopping at his house. At the hospital, Officer Lubold again tried to talk with Kramer, explaining that he was going to request a blood test based upon his observations. The officer testified that Kramer began to scream and yell uncontrollably for her father, and when the officer began to read DOT's chemical test warning form, Form DL-26, Kramer became so distraught that nursing staff and a doctor arrived to try to calm her. Officer Lubold was forced to stop after reading the first paragraph and part of the second paragraph of the warnings because Kramer's behavior was becoming disruptive and she completely ignored him the rest of the time and just yelled for her father. Officer Lubold estimated that it took "several minutes" for him to read the portion that was communicated. Kramer's father arrived shortly thereafter, and Officer Lubold explained to him what had happened. Kramer's father spoke to Kramer, and she then agreed to submit to the test. When her father communicated this to Officer Lubold, however, he stated that it was too late to take the test.
The trial court sustained Kramer's appeal. The court noted that in an appeal of a license suspension for refusal of testing, DOT has the initial burden to prove that the licensee was arrested for driving under the influence, was requested to submit to a chemical test, refused to do so and was specifically warned that a refusal would result in a suspension of operating privileges. DiGiovanni v. Department of Transportation, Bureau of Driver Licensing, 717 A.2d 1125 (Pa. Cmwlth. 1998). DOT's burden includes showing that the licensee was offered a meaningful opportunity to comply with the request. Petrocsko v. Department of Transportation, Bureau of Dri
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