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Eschenburg v. Commonwealth11/12/2004
Gary Eschenburg (Eschenburg) appeals from an order of the Court of Common Pleas of Bucks County that denied his appeal of the Department of Transportation, Bureau of Driver Licensing's (Department) suspension of his operating privileges pursuant to Section 1547(a)(1) of the Vehicle Code, 75 C.S. §1547(a)(1)*fn1 relating to chemical test refusal. We affirm the trial court.
Eschenburg was arrested for driving under the influence of alcohol (DUI) on August 9, 2003 by Officer Seth Mumbauer of the Perkasie Borough Police Department. At the hearing in this matter, Officer Mumbauer testified that, upon arresting Eschenburg, he handcuffed him and transported him to Grand View Hospital to have blood drawn. He noted that Eschenburg resisted slightly to being handcuffed, that he initially pulled his hands back. At the hospital, while still in the police car, Officer Mumbauer read to Eschenburg the implied consent warning, Form DL-26. Officer Mumbauer testified that Eschenburg told him that he would submit to a blood test only if his handcuffs were removed before he walked into the hospital. Eschenburg testified that several of the doctors and nurses at the hospital were his customers and that he did not want to appear before them handcuffed. Officer Mumbauer testified that he refused to remove the handcuffs because it was standard operating procedure in his department to handcuff prisoners. Officer Mumbauer testified that he repeated the implied consent warnings several times and gave Eschenburg a number of opportunities to change his mind while on the way to the police station from the hospital. Finally, Officer Mumbauer charged Eschenburg with violating Section 1547 relating to refusal of chemical testing. The trial court determined that Eschenburg's conduct in refusing to enter the hospital in handcuffs amounted to a refusal to undergo a chemical test for blood alcohol.
The question we are asked to determine is whether the trial court erred in concluding that Eschenburg's conduct fell short of unqualified consent to chemical testing where he agreed to a blood test only if his handcuffs were removed.*fn2
Eschenburg relies on Brown v. Pennsylvania Department of Transportation, Bureau of Driver Licensing, 738 A. 2d 71 (Pa. Cmwlth. 1999), for the proposition that a motorist must be given a meaningful opportunity to satisfy the requirement of Section 1547. In Brown a motorist refused to take the test unless the arresting officer allowed her four-year old child, who was in the car at the time of her arrest, to go to the hospital with her. We ruled that that refusing to go to the hospital unless the officer complied with that request did not constitute a refusal of chemical testing. Eschenburg also cites Carlin v. Department of Transportation, Bureau of Driver Licensing, 739 A.2d 656 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 678, 759 A.2d 924 (2000), in his defense. In Carlin we ruled that a police officer had improperly determined that a motorist had refused chemical testing where he would not submit to a chemical test until he was allowed to use the bathroom to urinate.
The Department argues that nothing but the fear of being embarrassed in front of his customers deterred Eschenburg from refusing to enter the hospital and undergo a chemical test and cites two cases in support of Officer Mumbauer's refusal to deviate from his department's policy of handcuffing prisoners until they are inside the hospital and ready to be tested. In Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594 (Pa. Cmwlth. 2003), the motorist, while un-handcuffed and while the arresting officer was reading the DL-26 warning at the hospital, reached for the officer to ret
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