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 County 

Common Pleas Court’s (trial court) December 20, 2013 order1denying 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 12, 2012, at 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 motorcycle accident. While Officer 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 to the parties until December 23, 2013. See Pa.R.C.P. No. 236.
2

to immediately locate the driver. However, 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 motorcycle. 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 after 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 very 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, Officer 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 one-leg stand test, and complained of chest and rib pains. 

When 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 that 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 Center.
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 reading 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 16, 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, 

75 Pa.C.S. § 1547. On December 17, 2012, Licensee appealed 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

Licensee argues that his implied consent refusal was not valid because 

the Warnings he received did not specify whether the chemical test to be 

administered was blood, breath or urine. We disagree.

In order to sustain the appeal of a license suspension under 

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 enunciated 

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. Cmwlth.] 1980)

(emphasis added in Thoman[])). Once [DOT] satisfies its 

initial burden of proof, the burden 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, it is irrelevant if the licensee’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 Warning to Licensee. Notes of Testimony, December 16, 2013 

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

Warning, he responded that “he did not want anyone sticking needles in his arm.” 

N.T. at 17-18; see also N.T. at 46, 63. 

“Determinations as to the credibility of witnesses and the weight 

assigned to the evidence are solely 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, the 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 was advised which test was being requested, the trial 

court properly held that his refusal was valid.
5

For all of the above-stated reasons, the trial court’s order is affirmed.

___________________________

ANNE E. COVEY, Judge
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 :

O R D E R

AND NOW, this 25th day of August, 2014, the Montgomery County 

Common Pleas Court’s December 20, 2013 order is affirmed.

___________________________

ANNE E. COVEY, Judge