IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Ermold

, : Appellant :

:

v. :

: Commonwealth of Pennsylvania, : Department of Transportation

, : No. 134 C.D. 2014 Bureau of Driver Licensing : Submitted: August 1, 2014

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE ROBERT SIMPSON , Judge

HONORABLE ANNE E. COVEY , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: August 25, 2014

Jeffrey Ermold (Licensee) appeals from the Montgomery Count y

Common Pleas Court’s (trial court) December 2 0 , 2013 order 1 denying his appeal and

reinstating his driver’s license suspension. The sole issue before the Court is whether

Licensee’s implied consent refusal was valid. After review, we affirm.

On July 1 2, 2012, a t approximately 5:00 a.m.

, Lower Pottsgrove

Township (Lower Pottsgrove) Police Officer Ryan Smith (Officer Smith) was

dispatched to the area of Bleim Road and Romig Road in Lower Pottsgrove based

upon a report of a m otorcycle accident

. While Off icer Smith was on his way to the

scene, the dispatcher reported that the driver left the scene and was heading west on

Bleim Road towards North Charlotte Street. A witness to the crash informed police

that the motorcycle driver was a white male wearing a red shirt. Officers were unable

1 The trial judge signed the order on December 20, 2013, however, the order/judgment was

not docketed and sent t o the parties until December 23, 2013. See Pa.R.C.P. No. 236.2

to immediately locate the driver. H owever, responding fire personnel notified police

of an individual they observed on a motorcycle behind a nearby roller skating rink

(rink)

. Officer Smith went to the rink

.

Upon arrival , Officer Smith observed Licensee , a white male wearing a

red tee shirt, sitting on a m otorcycle. Licensee had cuts and scrapes on his upper

body, and one side of the motorcycle was scratched up and its mirror was broken.

Officer Smith asked Licensee to dismount the motorcycle and sit on nearby steps

leading to the rink, which Licensee did. At that time, Officer Smith summoned an

ambulance to respond to the scene. Officer Smith requested Licensee’s driver’ s

license, which Licensee provided, but only aft er thumbing through cards in his wallet

and passing over his license several times. Officer Smith detected a strong odor of

alcohol coming from Licensee’s breath. He also noticed that Licensee’s eyes were

bloodshot and glassy and that his balance was ver y poor . Licensee’s responses to

Officer Smith’s questions were delayed and his speech was slurred. When the

ambulance arrived, Licensee claimed numerous times that he was uninjured and

refused treatment from the ambulance personnel

.

Thereafter , Office r Smith asked Licensee to submit to field sobriety

tests, to which Licensee consented . Licensee denied that he had any injuries or

medical conditions that would prevent him from performing the tests. Licensee failed

to properly perform the o ne

- l eg s tand test , and complained of chest and rib pains

.

W hen Officer Smith asked if he wanted to continue the test, Licensee did not answer.

Licensee did, however, submit to a preliminary breath test, which showed a presence

of alcohol above the legal limit. At th at time, Officer Smith determined that Licensee

had been operating a motor vehicle while under the influence of alcohol and placed

Licensee under arrest. Officer Smith patted Licensee down and rode with him in the

ambulance to Pottstown Memorial Medical C enter.3 At the hospital, Officer Smith read Licensee a Form DL

- 26, 2 Chemical

Testing and Refusal Report (Warning) verbatim. Licensee indicated that he

understood the Warning and requested to read Form DL

- 26 himself, which he did.

When Licensee finished r eading it, he said that he did not want anybody sticking

needles in his arm. Officer Smith again explained to him the consequences of

refusing the test, but Licensee restated that he did not want to comply. Licensee did

not sign the Form DL

- 26 or submit to a chemical test.

On November 1 6, 2012, the Pennsylvania Department of Transportation

(DOT) notified Licensee that his driver’ s license was going to be suspended for 18

months, effective December 21, 2012, pursuant to Section 1547 of the Vehicle Code,

7 5 Pa.C.S. § 1547. On December 17, 2012, Licensee appeal ed from the suspension

to the trial court

. A hearing was held and

, on December 20, 2013, the trial court

denied Licensee’s appeal and reinstated his suspension. Licensee appealed to this

Court. 3

Li censee argues that his implied consent refusal was not valid because

the Warnings he received did not specif y whether the chemical test to be

administered was blood, breath or urine

. We disagre e.

In order to sustain the appeal of a license suspension unde r Section 1547 of the [Vehicle Code] :

[DOT] bears the burden of proving that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was

2 “ The DL

– 26 Form contains the chemical test warnings required by Section 1547 of the

Vehicle Code, [ 75 Pa.C.S. § 1547 ,] which are also known as the implied consent warnings. ” Vora

v. Dep ’ t of Transp., Bureau of Driver Licensing , 79 A.3d 743 , 745 n.2 (Pa. Cmwlth. 2013)

.

3 “Our standard of review in a license suspension case is to determine whether the factual

findings of the trial court are supported by competent evidence and whether the trial court

committed an error of law or an abuse of discretion. ” Gammer v. Dep ’ t of Transp., Bureau of

Driver Licensing , 995 A.2d 380 , 383 n.3 (Pa. Cmwlth. 2010)

.4 specifically warned that a refusal would result in the

revocation of his or her driver’ s license.

Thoman [v. Dep ’ t of Transp., Bureau of Driver Licensing

, ]

965 A.2d [ 385 ,] 388 [ (Pa. Cmwlth. 2009) ]. ‘ To satisfy the ‘specific warning’ requirement, ‘a precisely e nuncia ted warning that a driver’ s license will be revoked’ must be given. ’ Id. (quoting Everhart v. Commonwealth of Pennsylvania,

. . . 420 A.2d 13, 15 ( [Pa. Cmw l th.] 1980) (emphasis added in Thoman [] ) ). Once [DOT] satisfies its initial burden of proof, the b urden then shifts to the licensee to show that he was physically unable to take the test or that the refusal was not knowing or conscious. Thoman, 965

A.2d at 388. However, if the warnings given to the licensee are not specific, i t is irrelevant if the li censee’ s refusal was knowing or conscious.

Sitoski v. Dep ’ t of Transp., Bureau of Driver Licensing , 11 A.3d 12 , 18 (Pa. Cmwlth.

2010) (footnote omitted). Here, Licensee maintains that Officer Smith did not fill in

the blank on Form DL

- 26 specifying what type of test was being requested , i.e.,

blood, breath or urine . However, Officer Smith testified that he specified “ blood ” test

when he read the W arning to Licensee. Notes of Testimony

, December 16, 2013

(N.T.) at 45, 66. In addition, Officer Smith rep orted that after Licensee read the

W arning, he responded that “he did not want anyone sticking needles in hi s arm .”

N.T. at 17

- 18 ; s ee also N.T. at 46, 63.

“ Determinations as to the credibility of witnesses and the weight

assigned to the evidence are s olely within the province of the trial court as fact

- finder

.

As fact

- finder , the trial court may accept or reject the testimony of any witness in

whole or in part. ” Reinhart v. Dep ’ t of Transp., Bureau of Driver Licensing , 954

A.2d 761 , 765 (Pa. Cmwlth. 2008) (citation omitted). In the instant case, t he trial

court expressly found Officer Smith’s testimony “to be credible, and no testimony to

the contrary was presented.” Trial Ct. Op. at 6. Accordingly, because record

evidence supports that Licensee w as advised which test was being requested, the trial

court proper l y held that his refusal was valid.5 For all of the above

- stated reasons, the trial court’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Ermold, : Appellant :

:

v. :

: Commonwealth of Pennsylvania, : Department of Transportation

, : No. 134 C.D. 2014 Bureau of Driver Licensing :

O R D E R

AND NOW, this 25 th day of August , 201 4

, the Montgomery County

Common Pleas Court’s December 2 0 , 2013 order is affirmed.

___________________________ ANNE E. COVEY , Judge