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Garner v. Commonwealth6/2/2005
JUDGE LEADBETTER
The Bureau of Driver Licensing (Bureau) appeals from the order of the Court of Common Pleas of Cumberland County (common pleas), which vacated the suspension of John F. Garner's driver's license. Common pleas concluded that Garner received an inadequate warning of the consequences prior to his refusal to take a breathalyzer test because the Bureau's revised DL-26 form does not satisfy the informational requirements in 75 Pa. C.S. § 1547. The Bureau persuasively challenges this conclusion and we reverse.
Since the amendments to the Motor Vehicle Code enacted in the Act of September 30, 2003, P.L. 120 (Act 2003-24) became effective on February 1, 2004, the warnings required prior to testing under Section 1547 include not only the previously required information that refusal will result in license suspension but also information that refusal will result in enhanced criminal penalties upon conviction. Specifically, Section 1547, in pertinent part, now states:
(b) Suspension for refusal.-. . . .
(2) It shall be the duty of the police officer to inform the person that:
(i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) upon conviction, plea or adjudication of delinquency for violating section 3802(a), the person will be subject to penalties provided in section 3804(c) (relating to penalties).
75 Pa. C.S. § 1547(b)(2).
On March 6, 2004, local police stopped Garner, who was driving a dump truck in an apparently reckless manner. Reasonably believing that Garner was intoxicated, police arrested him and transported him to a booking center, where an officer requested that he submit to a breathalyzer test. Prior to seeking Garner's submission to testing, police informed Garner of the consequences of refusal by both reading aloud and handing him a copy of the Bureau's DL-26 form, as revised since the recent amendments to the Motor Vehicle Code. The form states, in pertinent part:
3. f you refuse to submit to the chemical test, your operating privileges will be suspended for at least one 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) [driving after imbibing] of the Vehicle Code, because of your refusal, you will be subject to the more severe penalties set forth in Section 3804(c) of the Vehicle Code, which include a minimum of seventy-two hours in jail and a minimum fine of $1,000.
4. ny request to speak to an attorney or anyone else after being provided these warnings . . . will constitute a refusal, resulting in suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code.
Garner testified that he read the form and understood it. Garner v. Dep't of Transp., (No. 04-1815 Civil, filed August 26, 2004), op. at 2. R.R. at 73a. Nevertheless, Garner refused to submit to testing. Police reported his refusal to the Bureau; and, the Bureau notified Garner that his license was being suspended for eighteen months, as now directed for recidivist offenders.
Section 1547(b)(1) directs that a refusal shall generally result in a twelve-month suspension but an eighteen-month suspension applies if:
(A) The person's operating privileges have previously been suspended under this subsection.
(B) The person has, prior to the refusal under this paragraph, been sentenced for:
(I) an offense under section 3802;
(II) an offense under former se
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