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Brockett v. Commonwealth5/27/2005
William J. Brockett (Brockett) appeals from an order of the Court of Common Pleas of Monroe County (trial court) that denied Brockett's appeal from a one-year suspension of his operating privilege pursuant to Section 1547(b)(1) of the Vehicle Code (Code), 75 Pa.C.S. § 1547(b)(1).
By official notice dated June 22, 2004, the Department of Transportation, Bureau of Driver Licensing (DOT) informed Brockett that his operating privilege was to be suspended for one year, effective July 27, 2004, as a result of his refusal to submit to chemical testing on June 3, 2004. Brockett appealed to the trial court.
At a de novo hearing, Donald Neice, III (Officer Neice) of the Stroud Area Regional Police Department, testified that he observed "Mr. Brockett operating a motorcycle traveling southbound on state route 611 in a center-turn only lane for roughly quarter of a mile . . . I pulled out behind Mr. Brockett and observed him to be traveling from the southbound lane into the center-turn lane repeatedly." Notes of Testimony (N.T.), September 23, 2004, at 4; Reproduced Record (R.R.) at 9a. Officer Neice continued that " ith all of the lane changes he [Brockett] did not use directional changes." N.T. at 4; R.R. at 9a. After the initial stop, Officer Neice detected the odor of alcohol emanating from Brockett. Officer Neice requested Brockett to submit to the " alk and turn, oneleg stand, and horizontal gaze nystagmus" field sobriety tests. N.T. at 4; R.R. at 9a. Brockett failed the sobriety tests and Officer Neice placed him under arrest. N.T. at 4-5; R.R. at 9a-10a. Officer Neice testified that he read Paragraphs 1, 2, 3, and 4 from DOT's Form DL-26 to Brockett. Officer Neice requested Brockett to submit to a blood test two times and he refused. N.T. at 6; R.R. at 11a. On cross-examination, Officer Neice admitted Brockett requested that he be allowed to consult with counsel. N.T. at 7; R.R. at 12a. Officer Neice informed Brockett "how he doesn't have a right to speak with an attorney at that time." N.T. 7; R.R. at 12a. Lastly, Officer Neice acknowledged that this incident occurred after the effective date of the new DUI statute, i.e. February 1, 2004. N.T. at 6-7; R.R. at 11a-12a.
The trial court denied Brockett's appeal and concluded:
n the case at bar, the department has imposed a suspension of one year, which event was clearly described in the warnings read by the police officer to this Petitioner [Brockett] . . . .
Counsel for Petitioner [Brockett] next complains that the recently adopted provisions of 75 Pa.C.S.A. §3802(a)(b)(c)[ ] have criminal penalties for a chemical test refusal . . . and . . . Petitioner [Brockett] should have the right to consult with counsel concerning a decision of whether or not to submit to the test. We agree that this is a valid argument in the criminal context . . . . However, we do not agree that the same argument applies in the context of this civil penalty being imposed by the Department of Transportation.
Trial Court Opinion, October 8, 2004, at 4-5. On November 8, 2004, the trial court granted Brockett's motion for stay pending appeal.
Before this Court , Brockett contends: 1) that a licensee arrested under newly enacted Section 3802 of the Code, 75 Pa. C.S. § 3802, has a constitutional right to consult with an attorney prior to deciding whether to submit to a blood test; 2) that DOT may not impose an additional civil penalty over and above the enhanced criminal penalty for refusal to submit to a blood test ; and 3) that the chemical testing warnings contained in revised form DL-26 are insufficient to enable a driver to make a knowing and conscious refusal to submit to a blood test.
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