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Banerjee v. Commonwealth6/30/2005
minal sanctions if you are convicted of violating Section 3802(a) of the [Code].
(R.R. 16a)(Emphasis added.) Thus, form DL-26 informs a licensee of the minimum penalties that will be imposed for failing to submit to a request for chemical testing.
Recently in Weaver v. Department of Transportation, Bureau of Driver Licensing, 873 A.2d 1 (Pa. Cmwlth. 2005), we rejected the licensee's claim that because the General Assembly added subparagraph (ii) to Section 1547(b)(2), but did not amend the wording of the Implied Consent form to include the new penalties, the warnings contained therein were no longer valid. We explained:
It is not the duty of the police to explain the various sanctions available under a given law to an arrestee to give that individual an opportunity to decide whether it is worth it to violate that law. It is sufficient for the police to inform a motorist that he or she will be in violation of the law and will be penalized for that violation if he or she should fail to accede to the officer's request for a chemical test. The verbiage on form DL-26 informs a motorist that he or she will be in violation of the law and will be penalized for that violation if he or she should fail to accede to the officer's request for a chemical test; that is sufficient information upon which to base a decision as to whether or not to submit to chemical testing.
Id. at 2.
As noted by the trial court, requiring the police to specifically inform a licensee of the penalties contained in Section 3804(c) would only confuse an individual who is suspected of being intoxicated and who may be frightened, combative or angry. Claims of confusion regarding the Implied Consent warnings were plentiful prior to DOT's amendment of form DL-26. Reciting the penalties for first, second, third and subsequent offenses would only increase claims that an individual was confused because he or she did not know which penalty applied to his or her situation or that the police omitted the applicable penalty provision. We have no doubts that appeals would follow on that ground.
We can likewise envision claims based on the theory that the warnings should have contained only those provisions that are applicable to the particular licensee. This places a burden on police personnel to obtain the licensee's driving history, to determine the applicable penalty provisions, and to explain matters to the licensee, all without mistake and within the confines of the two-hour chemical testing limitations of Section 3802.
Additionally, we can foresee claims premised on the theory that harsher penalties were imposed than those explained by the police, especially in those situations where the individual is unaware of what constitutes a prior offense which would mandate a more severe penalty.
Section 1547(b)(2)(ii) requires only that the police inform an individual that he or she will be subject to penalties in addition to a suspension of his or her operating privilege if found in violation of Section 3802. Neither former nor current Section 1547(b)(2) requires the police to inform a licensee of the length of the suspension to be imposed for failure to submit to chemical testing. Nevertheless, DOT has adapted form DL-26 to set forth the minimum penalties a licensee may face in the event he or she refuses a request to submit to chemical testing. DOT's warnings thus go beyond that which is required by law.
Because we conclude that form DL-26 sufficiently apprises a licensee of the penalties for his or her failure to submit to a request for chemical testing, we affirm. Weaver.
AND NOW, this 30th day of June, 2005, the December 14, 2004
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