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Banerjee v. Commonwealth6/30/2005
Soumitra Banerjee (Licensee) appeals from the December 14, 2004 order of the Court of Common Pleas of Bucks County (trial court) that denied Licensee's statutory appeal of a one-year suspension of his operating privilege imposed by the Department of Transportation, Bureau of Drive Licensing (DOT), pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. § 1547, also known as the Implied Consent Law. The sole issue presented for our consideration is whether the chemical test warnings contained in DOT form DL-26 are sufficient to apprise a licensee of the consequences of refusing to submit to chemical testing. We affirm.
By official notice dated September 6, 2004, DOT informed Licensee that his operating privilege was being suspended for a period of one year, effective October 11, 2004, due to his refusal to submit to chemical testing on June 13, 2004, as required by Section 1547(b)(1)(i) of the Code, 75 Pa. C.S. § 1547(b)(1)(i).
On August 22, 2004, Licensee filed an appeal of the license suspension, and the trial court held a de novo hearing on December 14, 2004. At that time, the parties stipulated that the police officer had reasonable grounds to believe that Licensee was driving under the influence of alcohol, that he was arrested for that offense, that the chemical test warnings contained in form DL-26 were read verbatim to Licensee, and that he refused the request for chemical testing. Trial Court Opinion at p.2.
Before the trial court, Licensee maintained that the 2004 amendments to Section 1547(b)(2) of the Code, effective February 1, 2004, require the police to inform a licensee of the specific penalties provided in Section 3804(c) of the Code, 75 Pa. C.S. § 3804(c). Section 1547(b)(2) states:
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) if the person refuses to submit to chemical testing, upon conviction or plea for violation section 3802(a)(1)
[75 Pa. C.S. § 3802(a)(1)], the person will be subject to the penalties provided in section 3804(c) (relating to penalties).
75 Pa. C.S. § 1547(b)(2).
Prior to 2004, Section 1547(b)(2) only required the police to inform a licensee that refusal to submit to chemical testing would result in the suspension of his or her operating privilege. The 2004 amendments added the requirement that the police inform a licensee that upon conviction or plea of violating Section 3802(a)(1), the penalties of Section 3804(c) will be imposed.
In response to the 2004 amendments, DOT amended form DL-26, in pertinent part, as follows:
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 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) 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], which include a minimum of 72 hours in jail and 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 privilege and other enhanced cri
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