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Jellen v. Commonwealth5/24/2005
Anthony Charles Jellen (Appellant) appeals from the order of the Court of Common Pleas of Northumberland County (trial court) that denied his statutory appeal from the suspension of his operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (DOT), pursuant to Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547. The suspension was based on Appellant's refusal to submit to chemical testing after being detained for suspicion of driving under the influence of alcohol (DUI). Appellant raises three issues: 1) whether Appellant's insistence upon chemical testing, immediately following an alleged refusal by conduct, is sufficient to a warrant reversal of Appellant's license suspension under Section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b), for refusal to submit to chemical testing; 2) whether DOT form DL-26 meets the requirements of 75 Pa. C.S. § 1547(b) so as to sufficiently apprise the driver of the consequences of refusal; and 3) whether the arresting officer's use of a voluntary blood alcohol test undertaken by Appellant and taken at the suggestion or encouragement of the police estops DOT from litigating the purported refusal to submit to chemical testing. For the reasons that follow, we affirm.
On April 17, 2004, Appellant was arrested by the Mount Carmel Township Police Department and charged with DUI. R.R. at 8a-10a. Appellant's arrest came as a result of his failure to successfully complete three field sobriety tests. Id. at 10a. The arresting officer, Brian Hollenbush, testified that Appellant was unable to perform a one-leg balance test and the heel-to-toe walking test. Appellant also registered a .30 on a preliminary breath test. Id. at 22a-25a. Officer Hollenbush further testified that Appellant was taken to the Mount Carmel Borough Police Station whereupon Officer Chris Buhay, a certified breathalyzer operator, read Appellant the implied consent law as set forth on DOT's DL-26 form and requested that he submit to a chemical breath test. Id. at 26a-31a; 45a-59a. Appellant refused to sign the form. Id. at 49a; 161a.
After Appellant successfully completed one breathalyzer test, Officer Buhay was unable to conduct a requisite second test because Appellant failed to properly blow into the machine. Id. at 32a-33a. Eventually, Officer Buhay determined that there was a refusal to submit to chemical testing. Id. at 33a.
Officer Hollenbush testified that after the deemed refusal, Appellant requested a blood test, whereupon he was told that he had every right to seek a blood test on his own but no right to request that the police conduct one. Id. at 40a. After being released from police custody, Appellant went to the Emergency Room at Shamokin Hospital and had a blood test. The results of that test indicated that Appellant's blood alcohol level was .225. Id. at 34a-35. By letter dated May 14, 2004, DOT issued Appellant an official notice of suspension of his driving privilege as authorized by Section 1547(b)(2) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(2). Id. at 5a-7a.
Appellant appealed his license suspension to the trial court arguing in pertinent part that he did not refuse any chemical testing, was not warned of the consequences of a deemed refusal, and detrimentally relied upon the officer's suggestion that Appellant could voluntarily set up his own test at Shamokin Hospital. Thus, Appellant argued that DOT's license suspension should be quashed. On September 15, 2004, the trial court affirmed the license suspension.
This Court's review of a trial court's order in a license suspension case is limited to determining whether the trial court's findings of fact are supported by competent evidence and
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