IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher C. Bartolucci :

:

v. : No. 74 C.D. 2017

:

Commonwealth of Pennsylvania, : Submitted: September 22, 2017

Department of Transportation, :

Bureau of Driver Licensing, :

Appellant :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: December 21, 2017

The Department of Transportation, Bureau of Driver Licensing 

(Department) appeals from the order of the Cumberland County Court of Common 

Pleas (trial court) that sustained the statutory appeal of Christopher C. Bartolucci 

(Licensee) pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. §1547(b),

commonly known as the Implied Consent Law.1 The Department suspended

Licensee’s operating privilege for one year for his refusal to submit to a blood test. 

The Department argues the trial court erred in determining that Licensee met his 

burden of proving that his confusion rendered his refusal unknowing. It asserts 

Licensee was required to submit medical evidence to establish that his confusion did 

not relate to his intoxication. Upon review, we reverse.

 

1 Section 1547(b)(1) requires any person placed under arrest for driving under the influence 

(DUI) “to submit to chemical testing...[and if that person] refuses to do so, the testing shall not be 

conducted but upon notice by the police officer, the department shall suspend the operating 

privilege of the person... for a period of 12 months.” 75 Pa. C.S. §1547(b)(1)(i).
2

I. Background

Officer Chad Tate of the Camp Hill Borough Police Department 

(Officer) stopped Licensee for suspicion of driving under the influence (DUI) in 

violation of 75 Pa. C.S. §3802. Following the traffic stop, Officer requested a 

preliminary breath sample. Licensee complied. The sample indicated a blood 

alcohol content of 0.096%. Officer read Licensee the warnings on the Form DL-26 

(Warning), which states, in pertinent part:

4. You have no right to speak with an attorney or anyone else 

before deciding whether to submit to testing. If you request to 

speak with an attorney or anyone else after being provided these 

warnings or you remain silent when asked to submit to chemical 

testing, you will have refused the test.

Reproduced Record (R.R.) at 47a (emphasis added). Officer then asked Licensee to 

provide a blood test. After inquiring about speaking to an attorney, and repeating 

that he already provided a breath sample to Officer, Licensee refused.

Officer advised the Department of Licensee’s refusal. The Department 

then sent a notice of suspension to Licensee. The notice advised Licensee his 

operating privilege was suspended for one year. Licensee appealed to the trial court.

The trial court held a hearing.

2

 The Department presented the testimony

of Officer and submitted an audio-visual recording of Officer providing the Warning 

to Licensee at the DUI booking center (Video). Licensee testified on his own behalf. 

He did not present any other witnesses or submit any medical evidence.

 

2 During the hearing, Licensee stipulated that: Officer arrested Licensee based on 

reasonable grounds that he was DUI; Officer asked Licensee to submit to blood testing; and, 

Officer warned Licensee of the consequences of refusal. Tr. Ct., Slip Op., 3/1/17, at 1.
3

Officer testified that Licensee did not complain of any current medical 

conditions, noting only that he had surgeries in the past. R.R. at 20a. At the booking 

center, after Officer read the Warning verbatim, he provided it to Licensee for his 

signature. Licensee then repeatedly asked to speak to an attorney. Officer

acknowledged he did not explain why Licensee could not speak to an attorney. R.R. 

at 26a. When Officer again asked if Licensee was going to perform the blood test, 

Licensee responded that he had already “blown for you” with the breath test. R.R. at 

22a. Officer believed “[Licensee] was stalling.” R.R. at 29a. Because he “deemed 

[Licensee’s conduct] a refusal,” id. at 20a, Officer left the booking center. He clarified 

he deemed it a refusal “based on [Licensee’s] request for an attorney.” Id.

Licensee testified that he cooperated with Officer, answering all of his 

questions. Licensee explained he did not realize he was charged with refusing the 

blood test until he heard the charges. R.R. at 33a. At that time, Licensee agreed to 

give a blood sample, and was advised it was too late. Id. at 34a. He testified he was 

unable to read the Warning himself because he did not have his reading glasses. R.R. 

at 35a. He was confused about being asked to provide a blood test when he already 

submitted to the breathalyzer (I already “blew for you.”). R.R. at 34a. He did not 

understand that his refusal of a blood test would result in higher penalties. 

Ultimately, the trial court issued an order sustaining Licensee’s appeal. 

The Department filed a motion for reconsideration. The trial court issued a rule to 

show cause why the motion should not be granted, returnable within 10 days. 

Although the Department filed a response, Licensee did not answer within the 30-

day appeal period. The Department appealed the trial court’s order to this Court.
4

In its Rule 1925(a) opinion, the trial court determined the Department 

“satisfied its burden and demonstrated that [Licensee] did in fact refuse to submit to 

chemical testing.” Tr. Ct., Slip Op., 3/1/17, at 5. However, as to Licensee’s burden, 

it found “[Licensee’s] refusal was not knowing or conscious.” Id. The trial court 

found Licensee was confused based on its review of the Video, and Licensee’s 

testimony as to his confusion, which it credited. From its observation of Licensee, 

the trial court found, “he genuinely appeared to be trying to understand why he was 

being asked to provide a blood test when he had already provided a breath sample.” 

Id. at 6. It rejected the Department’s legal argument that Licensee’s confusion 

cannot excuse a valid refusal. 

II. Discussion

On appeal,3the Department argues the trial court erred in not requiring 

Licensee to present medical testimony regarding the knowing or conscious nature of 

his refusal. It asserts there is insufficient evidence for the trial court’s determination

that Licensee was incapable of providing a knowing and conscious refusal. Further, 

the Department contends the trial court erred in concluding Licensee’s observable 

confusion made his refusal unknowing. 

A. Legal Standards

In order to suspend a licensee’s operating privilege under Section 

1547(b) of the Vehicle Code, the Department must demonstrate that:

 

3 Our review is limited to determining whether the trial court committed an error of law or 

abused its discretion and whether necessary findings of fact were supported by substantial evidence. 

Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa. Cmwlth. 2008).
5

(1) Licensee was arrested for violating Section 3802 of the 

Vehicle Code by a police officer who had ‘reasonable grounds 

to believe’ that Licensee was operating or was in actual physical 

control of the movement of the vehicle while in violation of

Section 3802 (i.e., while [DUI]); (2) Licensee was asked to 

submit to a chemical test; (3) Licensee refused to do so; and[,]

(4) Licensee was specifically warned that a refusal would result 

in the suspension of his operating privileges.

Martinovic v. Dep’t of Transp., Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. 

Cmwlth. 2005). Once the Department satisfies its burden of proof, the burden shifts 

to the licensee to prove he was physically incapable of performing the chemical test 

or he was incapable of making a knowing and conscious refusal. Dep’t of Transp., 

Bureau of Driver Licensing v. Ingram, 648 A.2d 285 (Pa. 1994). 

Once an officer provides the warnings to a licensee, he has done all that 

is legally required. Dep’t of Transp., Bureau of Driver Licensing v. Scott, 684 A.2d 

539 (Pa. 1996). Other than reading the warnings, an officer need only provide a 

licensee with a meaningful opportunity to comply with the Implied Consent Law. 

Sitoski v. Dep’t of Transp., Bureau of Driver Licensing, 11 A.3d 12 (Pa. Cmwlth. 

2010). An officer has no duty to answer a licensee’s questions. McKenna v. Dep’t 

of Transp., Bureau of Driver Licensing, 72 A.3d 294 (Pa. Cmwlth. 2013). “Officers 

do not have an obligation to make sure that licensees understand the warnings or the 

consequences of refus[al].” Martinovic, 881 A.2d at 35. “An officer [also] has no 

duty to make sure the licensee understands the warnings regarding the inapplicability 

of [his] Miranda[4]rights against self-incrimination.” Boseman v. Dep’t of Transp., 

Bureau of Driver Licensing, 157 A.3d 10, 15-16 (Pa. Cmwlth. 2017), appeal denied, 

(Pa., No. 210 MAL 2017, filed August 22, 2017). 

 

4 Miranda v. Arizona, 384 U.S. 436 (1966).
6

Anything less than an unqualified consent to submit to chemical testing 

constitutes a refusal. Gregro v. Dep’t of Transp., Bureau of Driver Licensing, 987 

A.2d 1264 (Pa. Cmwlth. 2010). Indeed, repeated requests to speak with an attorney 

constitute a refusal. Hirsch v. Dep’t of Transp., Bureau of Driver Licensing, 702 

A.2d 375 (Pa. Cmwlth. 1997). Repeated questioning may also be deemed a refusal 

by conduct. Keenan v. Dep’t of Transp., Bureau of Driver Licensing, 657 A.2d 134 

(Pa. Cmwlth. 1995).

The issue of whether a licensee’s refusal was knowing and conscious is 

a question of fact. Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 555 

A.2d 873 (Pa. 1989). However, whether there is substantial, competent evidence to 

support the trial court’s factual determination is a question of law subject to our 

plenary review. Dailey v. Dep’t of Transp., Bureau of Driver Licensing, 722 A.2d 

772 (Pa. Cmwlth. 1999). Further, whether a licensee’s conduct constitutes a refusal 

to submit to chemical testing also presents a question of law. McKenna.

Here, the trial court determined the Department satisfied its prima facie

burden of proof. The parties stipulated to the first, second and fourth factors. As to 

the third factor, the trial court held, “we are constrained to agree with [the Department] 

that it satisfied its burden and demonstrated that [Licensee] did in fact refuse to submit 

to chemical testing.” Tr. Ct., Slip Op., at 5. Thus, the burden shifted to Licensee to 

prove his refusal to submit to a blood test was not knowing and conscious.

The trial court concluded Licensee met his burden because he was 

confused. It based its finding of confusion on Licensee’s testimony and the Video. 
7

B. Evidence of Incapacity

The Department argues the trial court erred as a matter of law when it

concluded Licensee satisfied his burden of proving that he was incapable of making 

a knowing and conscious decision to refuse chemical testing based on his confusion.

It asserts Licensee must submit medical evidence to support his alleged incapacity. 

Absent medical evidence, the Department contends the trial court’s finding as to 

Licensee’s confusion was not supported by substantial, competent evidence.

1. Competent Evidence

A driver’s self-serving testimony that he was incapable of providing a 

knowing and conscious consent to or refusal of a chemical test is not sufficient to 

meet his burden of proving incapacity. Dep’t of Transp., Bureau of Traffic Safety 

v. Dauer, 416 A.2d 113, 115 (Pa. Cmwlth. 1980). Expert medical testimony, 

although not a per se requirement, is generally required in order to validate his 

testimony. Dep’t of Transp., Bureau of Driver Licensing v. Garlan, 550 A.2d 873 

(Pa. Cmwlth. 1988), appeal denied, 563 A.2d 499 (Pa. 1989). 

This Court consistently holds a licensee’s “incapacity defense must be 

supported by competent medical evidence [when] he suffered no obvious disability.” 

Dep’t of Transp., Bureau of Traffic Safety v. Cassidy, 521 A.2d 59, 61 (Pa. Cmwlth. 

1987); see Ostermeyer v. Dep’t of Transp., Bureau of Driver Licensing, 703 A.2d 

1075 (Pa. Cmwlth. 1997) (reversing trial court for finding refusal was not knowing 

when licensee submitted no medical evidence of incapacity). A licensee must prove 

his incapacity for making a knowing and conscious refusal through “unequivocal 

medical evidence.” DiGiovanni v. Dep’t of Transp., Bureau of Driver Licensing,
8

717 A.2d 1125, 1126 (Pa. Cmwlth. 1998) (emphasis added) (holding medical 

testimony was equivocal5 and did not rule out intoxication as cause for confusion).

Part of a licensee’s burden is to prove his alcohol ingestion played no 

part in rendering him incapable of making a knowing and conscious refusal. Dailey. 

“If a motorist’s inability to make a knowing and conscious refusal of testing is 

caused, in whole or in part by the consumption of alcohol, the motorist’s affirmative 

defense fails.” DiGiovanni, 717 A.2d at 1127 (italics in original) (quoting Gombar 

v. Dep’t of Transp., Bureau of Driver Licensing, 678 A.2d 843, 847 (Pa. Cmwlth. 

1996)). Thus, medical evidence is necessary to establish alcohol was not a 

contributing factor to a licensee’s confusion. Kollar v. Dep’t of Transp., Bureau of 

Driver Licensing, 7 A.3d 336 (Pa. Cmwlth. 2010) (reversing trial court because

licensee did not meet burden of proving that refusal was not knowing or conscious); 

see Twoey v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 1089 

C.D. 2010, filed February 10, 2011), 2011 WL 10844848 (unreported).

In Ostermeyer, we recognized the necessity for medical evidence of 

incapacity when a licensee does not have an obvious injury or incapacity. There, the 

trial court excused a licensee from presenting expert testimony of his incapacity to 

make a knowing and conscious refusal to submit to a chemical test because he 

suffered a head injury. We reasoned that the driver’s testimony that he “was fading 

in and out from hitting his head on the windshield” was not sufficient to show 

 

5

“Equivocal statements that a motorist’s condition ‘could’ have or ‘may’ have prevented 

him from [making a knowing and conscious decision to refuse chemical testing] are insufficient 

to meet that requirement.” Grad v. Dep’t. of Transp., Bureau of Driver Licensing (Pa. Cmwlth., 

No. 199 C.D. 2008, filed September 18, 2008), 2008 WL 9396719, at *3 (unreported).
9

incapacity. Id. at 1078. In addition to the licensee’s testimony, the officers on the 

scene corroborated the damage to the car windshield. Nevertheless, we concluded 

the licensee’s head injuries were not so obvious that the licensee was excused from 

providing expert testimony. Consequently, we held the trial court erred in not 

requiring expert testimony, and we reinstated the Department’s suspension. Id.

In this case, Licensee did not claim an injury or any medical incapacity. 

Despite asserting an incapacity defense, Licensee presented no medical evidence as 

to his incapacity, or to rule out alcohol as a contributing factor to his inability to 

understand the Implied Consent Law. The only evidence as to Licensee’s inability 

to provide a knowing and conscious refusal was his testimony and the Video. 

Although the trial court credited Licensee’s testimony regarding his 

confusion, the trial court did not discern whether the confusion was attributable to 

the circumstances or to his intoxication. The trial court also relied on its own 

observations of Licensee’s confusion on the Video. The trial court’s observations 

do not constitute competent, unequivocal medical evidence that may sustain 

Licensee’s burden. Further, there is no record evidence, medical or otherwise, that 

establishes Licensee’s confusion was unrelated to his intoxication. 

Therefore, we agree with the Department that the trial court erred in not 

requiring Licensee to produce medical evidence to support his alleged inability to 

make a conscious and knowing decision on whether to submit to the blood test. 

Ostermeyer. Absent medical evidence of his incapacity, Licensee’s defense fails. 
10

2. Sufficient Evidence

A trial court’s finding that a licensee was unable to make a knowing 

and conscious refusal must be affirmed so long as sufficient evidence exists in the 

record to support the finding. Kollar. Thus, we next consider whether the record 

supports the trial court’s conclusion that the circumstances here rendered Licensee’s 

refusal unknowing. 

Essentially, the trial court found that Licensee’s refusal was not 

knowing and conscious because he was confused. Although we are bound by the 

trial court’s findings that Licensee was confused, and his refusal unknowing as a 

consequence, we may reverse the trial court if there is insufficient evidence to 

support those findings. Ostermeyer; Twoey.

Precedent is clear that where a licensee received implied consent 

warnings, his “subjective confusion” concerning his rights cannot negate his 

knowing and conscious refusal of chemical testing, and is not a valid defense to a 

license suspension. Scott, 684 A.2d at 546; McKenna, 72 A.3d at 298-301; Sitoski, 

11 A.3d at 20; Yourick v. Dep’t of Transp., Bureau of Driver Licensing, 965 A.2d 

341, 345 (Pa. Cmwlth. 2008). Therefore, we examine the trial court’s conclusion 

that Licensee’s subjective confusion rendered his refusal unknowing.

The trial court cited Department of Transportation, Bureau of Driver 

Licensing v. Lipko, 654 A.2d 227 (Pa. Cmwlth. 1995), to support its conclusion that 

the circumstances here precluded Licensee’s ability to provide a knowing refusal. 

However, the circumstances here are dissimilar to those in Lipko. 
11

In Lipko, the licensee’s confusion pertained to his commission of 

different violations. The officer arrested the licensee for DUI and for possession of 

marijuana and drug paraphernalia. The licensee did not understand how he was 

entitled to an attorney for the possession charges, but not for the refusal of chemical 

testing. The two-page implied consent warnings at the time included a reference to 

Miranda warnings. The trial court found the implied consent warning was confusing

and required clarification. Moreover, it concluded an officer was required to ensure 

the licensee understood the context of the chemical test and the consequences of 

refusal. Ultimately, the trial court determined a finding of a knowing and conscious 

refusal was impossible when the licensee was, at the same time, being interrogated 

on the possession charge. The “simultaneous custodial interrogation and request for 

chemical analysis” led to the licensee’s confusion. Lipko, 654 A.2d at 229. 

By contrast, in this case, the trial court alluded to no evidence of 

circumstances that made the Warning confusing. Significantly, Licensee was not

being interrogated regarding criminal charges unrelated to his driving when he 

received the Warning. Thus, the primary factor responsible for Lipko’s confusion, 

the simultaneous arrest for two different offenses, is not present here. 

As discussed in detail above, the evidence is not legally sufficient to 

serve as a basis for the trial court’s finding that Licensee’s confusion rendered his 

refusal unknowing. DiGiovanni. Licensee did not suffer from an obvious injury or

a medical condition that precluded him from submitting to a blood test. He also did 

not submit medical evidence to show his confusion was not attributable to 
12

intoxication. Ostermeyer. That he appeared confused on the Video is not competent 

evidence of confusion. Id.

The source of Licensee’s confusion is material. Appeal of Attleberger, 

583 A.2d 24 (Pa. Cmwlth. 1990) (en banc). “[I]f a licensee’s self-inflicted condition 

due to his voluntary consumption of alcohol is a factor which contributes to rendering 

him mentally incapable of making a knowing and conscious refusal to submit to 

chemical testing, the defense must fail.” Dep’t of Transp., Bureau of Driver Licensing 

v. Holsten, 615 A.2d 113, 116 (Pa. Cmwlth. 1992). Here, the trial court did not rule 

out intoxication as a cause for Licensee’s confusion. 

The only circumstance the trial court identified as contributing to 

Licensee’s confusion was the alleged rapid pace at which Officer read the Warning. 

The trial court did not find Officer’s recitation of the Warning was incomprehensible. 

Nor did it find that Officer misled Licensee about the Warning. Also, there is no 

evidence as to distractions in the DUI booking center while Officer read the Warning. 

The trial court found Licensee’s confusion was genuine because he 

provided a preliminary breath test (PBT). However, this Court “rejected [a] 

[l]icensee’s argument that a licensee’s subjective confusion based on the completion 

of a PBT supports the conclusion that [his] refusal was not knowing or conscious.” 

Sitoski, 11 A.3d at 20 (citation omitted).

The trial court also found Licensee’s repeated requests to speak to an 

attorney “indicate[d] ... confusion and an effort to understand the warnings, rather 

than seeking to delay submitting to a blood test.” Tr. Ct., Slip Op., at 6. The Warning 
13

adequately advised Licensee that he was not entitled to speak to an attorney.

McKenna. In the implied consent context, repeated requests to speak to an attorney 

qualify as a refusal by conduct, not as confusion. Hirsch.

In addition, the trial court found it significant that upon realizing his 

license would be suspended for a year, Licensee attempted to agree to a blood test. 

This “indicat[ed] he had no understanding of the implied consent warnings.” Tr. Ct., 

Slip Op., at 6. However, this Court “[holds] that the licensee’s initial failure to 

unconditionally agree to testing was a refusal and was not vitiated by his later assent.” 

McKenna, 72 A.3d at 300. Thus, Licensee’s later attempt to consent is of no moment. 

Id. Moreover, an officer is not required to “spend time waiting to see if the licensee 

will ultimately change his mind.” Id. (citation omitted).

 In sum, although the trial court noted several reasons for finding 

Licensee confused, Licensee’s observable condition is not competent evidence that 

his confusion was unrelated to his intoxication. Stated differently, the trial court’s 

reasons for believing Licensee was confused do not constitute evidence that the

circumstances here precluded Licensee from making a knowing refusal.

From our review of the record, there is no evidence of objective causes 

for Licensee’s confusion.6 Because there is insufficient evidence to prove 

 

6 Although Licensee testified he needed reading glasses to read the Warning, there is no 

indication that he advised Officer of his need for glasses. Regardless, an officer is not required to 

heed a licensee’s request for reading glasses so that he may read the Form DL-26 himself. Boerner 

v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 2529 C.D. 2015, filed 

September 15, 2016), 2016 WL 4898561 (unreported).
14

circumstances other than his intoxication precluded Licensee from providing a 

knowing and conscious refusal, we reverse. 

III. Conclusion

For the foregoing reasons, we reverse the order of the trial court. 

Accordingly, the Department’s suspension is reinstated.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher C. Bartolucci :

:

v. : No. 74 C.D. 2017

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

Appellant :

O R D E R

AND NOW, this 21st day of December, 2017, the order of the 

Cumberland County Court of Common Pleas is REVERSED, and the one-year

suspension on Christopher C. Bartolucci’s operating privilege is REINSTATED.

 

ROBERT SIMPSON, Judge