IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bryan Rodas :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, : No. 1372 C.D. 2022

Appellant : Submitted: October 10, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: November 17, 2023

The Pennsylvania Department of Transportation, Bureau of Driver 

Licensing (DOT), appeals from the order entered October 25, 2022 (Trial Court 

Order) by the Court of Common Pleas of Dauphin County (Trial Court) sustaining 

Bryan Rodas’s (Licensee) statutory appeal from a 12-month operating privilege 

suspension imposed by DOT, under the Vehicle Code, what is commonly known as 

the Implied Consent Law, 75 Pa.C.S. § 1547(b) (Implied Consent Law), as a result 

of Licensee’s refusal to submit to chemical testing upon his arrest for driving under 

the influence of alcohol or a controlled substance1(DUI). Upon review, we reverse.

1

75 Pa. C.S. § 3802.
2

The Pennsylvania State Police arrested Licensee on suspicion of DUI 

on October 31, 2021. Thereafter, by letter dated November 5, 2021, DOT notified 

Licensee that his operating privilege would be suspended for a period of 12 months 

effective December 17, 2021, as a result of his refusal to submit to chemical testing

at the time of his arrest. See DOT Letter dated Nov. 5, 2021, Reproduced Record 

(R.R.) at 55a-58a. On December 13, 2021, Licensee appealed the suspension to the 

Trial Court.2 See Trial Court Docket at 2, R.R. at 2a; Statutory Appeal, R.R. at 7a8a. 

The Trial Court conducted a hearing on Licensee’s appeal on 

September 27, 2022. See Notes of Testimony, September 27, 2022 (N.T.), R.R. at 

29a-63a. At the hearing, Pennsylvania State Trooper Bryce Corman testified on 

behalf of DOT and explained the following. See N.T. at 4-13, R.R. at 32a-41a. In 

the early morning hours of October 31, 2021, Trooper Corman was on routine patrol 

on Pennsylvania Route 283 Eastbound in Lower Swatara Township when he 

observed a black sedan that was travelling 45 miles per hour (m.p.h.) in the 65-m.p.h. 

zone and swerving over the center line of the road. See N.T. at 5-6, R.R. at 33a-34a. 

Trooper Corman activated his emergency lights and sirens and conducted a traffic 

stop of the vehicle. See N.T. at 6, R.R. at 34a. The driver, Licensee, was the sole 

occupant of the vehicle. See N.T. at 6-7, R.R. at 34a-35a. Upon approaching the 

vehicle, Trooper Corman immediately smelled a strong odor of alcohol coming from 

Licensee’s person. See N.T. at 7, R.R. at 35a. Trooper Corman also observed vomit 

on Licensee’s person, on the seatbelt, and in the car. See N.T. at 7-8, R.R. at 35a2 The Trial Court stayed the license suspension pending the final decision of the Trial Court 

on Licensee’s statutory appeal. See Trial Court’s Scheduling and Supersedeas Order dated 

December 15, 2021, Reproduced Record (R.R.) at 15a; see also 75 Pa.C.S. § 1550(b).
3

36a. Trooper Corman requested Licensee to exit the vehicle and perform multiple 

field sobriety tests,3 which Licensee accordingly did. See N.T. at 8, R.R. at 36a. 

Licensee’s performance of the field sobriety tests caused Trooper Corman to believe 

that Licensee was under the influence of alcohol, and he placed Licensee under arrest 

on suspicion of DUI. See N.T. at 8, R.R. at 36a.

Once Licensee was secured in the rear of the patrol vehicle, at 2:43 

a.m., Trooper Corman read Licensee the four blood testing warnings contained in 

DOT’s DL-26B consent to blood test form4 verbatim and in their entirety. See N.T. 

at 8 & 10-11, R.R. at 36a & 38a-39a. Licensee verbally consented to the blood draw 

3 Trooper Corman administered the horizontal nystagmus test followed by the walk-andturn test and the one-leg-stand test. See Notes of Testimony 9/27/2022 (N.T.) at 8, R.R. at 36a.

4 The DL-26B form’s blood testing warnings read as follows:

It is my duty as a police officer to inform you of the following:

1. You are under arrest for driving under the influence of alcohol or 

a controlled substance in violation of Section 3802 of the Vehicle 

Code. 

2. I am requesting that you submit to a chemical test of blood. 

3. If you refuse to submit to the blood test, your operating privilege 

will be suspended for at least 12 months. If you previously refused 

a chemical test or were previously convicted of driving under the 

influence, your operating privilege will be suspended for up to 18 

months. If your operating privilege is suspended for refusing 

chemical testing, you will have to pay a restoration fee of up to 

$2,000 in order to have your operating privilege restored. 

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 a blood test, you will have 

refused the test. 

DL-26B Form, R.R. at 59a; see also N.T. 10-11, R.R. at 38a-39a.
4

at that time. See N.T. at 8; R.R. at 36a. Trooper Corman then transported Licensee 

to the Dauphin County Booking Center (Booking Center) for processing, during 

which transport Licensee was afforded the opportunity to review and read the DL26B form to himself. See N.T. at 9 & 11, R.R. at 37a & 39a. 

Once at the Booking Center, Trooper Corman again provided Licensee 

with the DL-26B form to read. See N.T. at 11; R.R. at 39a. Licensee signed the DL26B Form at 3:41 a.m., but then ultimately verbally refused to participate in the 

blood draw. See N.T. at 9-11, R.R. at 37a-39a.5 

Licensee also testified before the Trial Court. See N.T. at 13-21; R.R. 

at 41a-49a. Licensee readily conceded that he was considerably intoxicated on the 

evening in question. See N.T. at 14 & 17-18, R.R. at 42a & 45a-46a. He explained 

that he readily consented to and took multiple breathalyzer tests, and that he also 

consented to the requested blood draw. See N.T. at 14, R.R. at 42a. Licensee 

testified that he remembered sleeping in the back seat of the police car and then 

driving to the police station. See N.T. at 14, R.R. at 42a. Although he remembered 

Trooper Corman speaking to him during the drive, Licensee was unsure whether he 

acknowledged anything at that time. See N.T. at 14-15, R.R. at 42a-43a. 

Once at the Booking Center, Licensee fell asleep multiple times and 

needed to be awakened. See N.T. at 15-16 & 18, R.R. at 43a-44a & 46a. Licensee 

recalled someone bringing a piece of paper for his signature and that Licensee was

told to sign it. See N.T. at 15 & 18, R.R. at 43a & 46a. Licensee remembered signing 

the paper, but stated that it was not explained to him and he thought it was a form 

indicating his consent for the blood draw. See N.T. at 15-16 & 17-18, R.R. at 43a5 Trooper Corman explained Licensee’s refusal thusly: “He related something to the effect 

as [sic] no, I’m not – I’m not giving blood or no, I’m not doing that. I can’t exactly recall his 

verbatim verbiage[,] but he did refuse.” N.T. at 11, R.R. at 39a.
5

44a & 45a-46a. Licensee stated that he understood that the consequence of refusal

to consent to the blood draw was an automatic one-year license suspension, and that 

such a significant consequence would have prevented him from refusing, 

considering his familial and employment obligations.

6

 See N.T. at 14-15 & 17-19, 

R.R. at 42a-43a & 45a-47a. Licensee did not recall refusing the blood draw after 

having signed the form. See N.T. at 15 & 17-18, R.R. at 43a & 45a-46a. Instead, 

he remembers only being awakened from sleep to sign the form handed to him, 

falling back to sleep, and then being awoken again and told that someone had arrived 

to pick him up from the station. See N.T. at 18, R.R. at 46a. Licensee also testified

that, although intoxicated, he was mentally aware and understood the situation that 

was occurring around him. See N.T. at 19, R.R. at 47a.

At the end of the hearing, the Trial Court stated, “[w]ell, I have no 

problem with the credibility of both witnesses. As a matter of fact, I thought they 

were both very credible. But somewhere along the line there’s a misunderstanding.” 

N.T. at 24; R.R. at 52a. The Trial Court later sustained Licensee’s statutory appeal 

by order entered on October 25, 2022. See R.R. at 2a; 64a. DOT timely appealed 

the Trial Court Order to this Court.7 See R.R. at 2a; see also Notice of Appeal R.R. 

at 65a-72a.

6 Licensee testified that he has joint custody over his two young children and needs his 

license to take the children to school and extracurricular activities. See N.T. at 15-16, R.R. at 43a44a. He further explained that he is the main source of financial support for his children, which 

financial support relies on his job in the auto industry that requires him to drive over 50,000 miles 

a year. See N.T. at 15-16, R.R. at 43a-44a.

7 We acknowledge that the DOT did not file its appeal until 35 days after the date the Trial 

Court signed the Trial Court Order sustaining Licensee’s appeal. However, while the Trial Court

Order was dated October 24, 2022, it was not distributed to the parties until the following day, 

October 25, 2022. The 30th and final day for DOT to appeal therefore fell on Thursday, November 

24, 2022, Thanksgiving Day, which was a Court holiday. The day after Thanksgiving was also a 
6

Before this Court,

8 DOT claims that the Trial Court erred by sustaining 

Licensee’s statutory appeal. See DOT’s Br. at 4, 10-20. Specifically, DOT argues 

that the evidence before the Trial Court illustrated that Licensee refused the police 

request for blood testing and further that Licensee failed to prove that he did not 

knowingly or consciously refuse. See id. We agree.

Initially, we note:

To sustain a license suspension under [the Implied 

Consent Law], DOT has the burden of establishing that (1) 

the licensee was arrested for drunken driving by a police 

officer having reasonable grounds to believe that the 

licensee was driving while under the influence, (2) the 

licensee was requested to submit to a chemical test, (3) the 

licensee refused to do so and (4) the licensee was warned 

that refusal would result in a license suspension. Once 

DOT meets this burden, the burden shifts to the licensee 

to establish that he or she either was not capable of making 

a knowing and conscious refusal or was physically unable 

to take the test.

Giannopoulos v. Dep’t of Transp., Bureau of Driver Licensing, 82 A.3d 1092, 1094 

(Pa. Cmwlth. 2013) (quoting Wright v. Dep’t of Transp., Bureau of Driver Licensing,

788 A.2d 443, 445 (Pa. Cmwlth. 2001)).

“The question of whether a licensee refuses to submit to a chemical test 

is a legal one, based on the facts found by the trial court.” Nardone v. Dep’t of 

Transp., Bureau of Driver Licensing, 130 A.3d 738, 748 (Pa. 2015). Our Supreme 

Court holiday. Thus, DOT had until the following Monday, November 28, 2022, to timely file its 

appeal, on which date it did. See Pa.R.A.P. 108 & 903.

8

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

findings of the trial court are supported by [substantial] evidence and whether the trial court 

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

Driver Licensing, 172 A.3d 733, 735 n.4 (Pa. Cmwlth. 2017).
7

Court has stated that “any response from a licensee that is anything less than an 

unqualified, unequivocal assent to submit to testing constitutes a refusal, subjecting 

the licensee to the one-year suspension.” Id. (internal quotation marks and citation 

omitted); see also Factor v. Dep’t of Transp., Bureau of Driver Licensing, 199 A.3d 

492, 497 (Pa. Cmwlth. 2018) (observing that “Pennsylvania courts have long and 

consistently held that anything less than an unqualified, unequivocal assent to submit 

to chemical testing constitutes a refusal to consent thereto”). “Further, an explicit 

refusal is not required to find a licensee refused to consent to chemical testing; a 

licensee’s conduct may constitute a refusal.” Factor, 199 A.3d at 497 (internal 

quotation marks omitted).

Moreover, “[t]he determination of whether a licensee was able to make 

a knowing and conscious refusal is a factual one that is to be made by the trial court.” 

Kollar v. Dep’t of Transp., Bureau of Driver Licensing, 7 A.3d 336, 340 (Pa. 

Cmwlth. 2010) (citing Barbour v. Dep’t of Trans., Bureau of Driver Licensing, 732 

A.2d 1157, 1160 (Pa. 1999)). “Such factual finding must be affirmed so long as 

sufficient evidence exists in the record to support the finding.” Id. However, “[a]

motorist’s self-serving testimony that []he was incapable of providing a knowing 

and conscious refusal of a chemical test is insufficient to meet [his] burden of 

proving incapacity.” Park v. Dep’t of Transp., Bureau of Driver Licensing, 178 A.3d 

274, 281 (Pa. Cmwlth. 2018); see also Kollar, 7 A.3d at 340 (“A driver’s self-serving 

testimony that []he was incapable of providing a knowing and conscious refusal of 

chemical testing is insufficient to meet the licensee’s burden of proof.”). “Rather, a 

licensee’s incapacity defense must be supported by competent medical evidence 

where []he suffers from no obvious disability.” Park, 178 A.3d at 281; see also 

Kollar, 7 A.3d at 340 (noting that “[m]edical testimony is generally required in order 
8

to establish a licensee was unable to provide a knowing and conscious refusal to 

submit to chemical testing”). Further,

[t]he medical expert must rule out alcohol as a contributing 

factor to the licensee’s inability to offer a knowing and 

conscious refusal in order to satisfy the licensee’s burden. 

Indeed, if the motorist’s inability to make a knowing 

and conscious refusal of testing is caused in whole or in 

part by consumption of alcohol, the licensee is 

precluded from meeting [his] burden as a matter of 

law.

Kollar, 7 A.3d at 340 (internal citations and footnote omitted) (emphasis provided).

No dispute exists in the instant matter as to three of the four elements

DOT must meet to sustain Licensee’s driver’s license suspension: Licensee was 

arrested for drunken driving based on reasonable grounds to believe that he was 

driving under the influence, Trooper Corman clearly requested that Licensee submit 

to chemical testing, and, by reading the DL-26B form, Trooper Corman warned 

Licensee that his refusal to submit to chemical testing would result in a license 

suspension. DOT challenges only the Trial Court’s conclusion that Licensee’s

refusal to submit to the requested blood draw was not knowing or conscious.

The Trial Court explained its decision to sustain Licensee’s statutory 

appeal thusly:

Based on the facts of this case, this [c]ourt is not satisfied 

that [Licensee’s] alleged refusal was conscious and 

knowing. Immediately after [Trooper] Corman initially 

read [Licensee] his rights, [Licensee], who was conscious 

and awake, stated that he would consent to a blood draw. 

He was taken to the Booking Center, where he fell asleep, 

and at some point woke up and was given a piece of paper 

to sign. [Licensee] signed the form, but there was no 

further explanation of the form, and according to 
9

[Licensee], he thought he was signing the form to consent 

to a blood test. Moreover, [Licensee] testified that after he 

signed the form, he fell asleep while he thought he was 

waiting for a blood test and then was awakened at a later 

time to be taken home from the Booking Center. 

[Licensee] also testified that he specifically had no desire 

to lose his license and there was no way that he would have 

refused a blood test and risked losing his license. 

Considering [Licensee’s] initial consent to the blood test, 

his subsequent compelling and credible testimony that he 

thought he was signing a form to consent to a blood test, 

and his statement that he would never have refused a blood 

test and risked losing his license, this [c]ourt found that 

[Licensee’s] alleged refusal, which was alleged to have 

happened after he had previously consented to a blood test, 

was not knowing and conscious.

Trial Court Memorandum Opinion dated Jan. 30, 2023 (Trial Court Opinion) at 6-7, 

R.R. at 86a-87a. Thus, the Trial Court accepted that Licensee refused to consent to 

the blood draw, but found that the combination of Licensee’s initial consent, his 

testimony that he thought by signing the DL-26B form he was consenting to the 

blood draw, and his statements that he would never have risked losing his license by 

refusing the blood test adequate to render his consent not knowing and conscious. 

We cannot agree that the evidence in this matter warranted such a determination by 

the Trial Court.

The evidence presented before the Trial Court illustrated that Licensee 

refused to consent to the requested blood draw, in that he failed to provide an 

unqualified, unequivocal assent to submit to chemical testing. On the contrary, 

Trooper Corman unambiguously testified that, despite initially consenting to the 

blood draw and receiving the refusal warnings from the DL-26B form, Licensee 

expressly verbally informed Trooper Corman at the Booking Center that he did not 
10

intend to consent to the blood draw. See N.T. at 11, R.R. at 39a. Trooper Corman 

noted Licensee’s refusal on the affidavit portion of the DL-26B form. See DL-26B 

Form, Affidavit, R.R. at 59a. The Trial Court described Trooper Corman’s 

testimony as “very credible.” N.T. at 24; R.R. at 52a. Thus, the DOT met its 

evidentiary burden to sustain Licensee’s license suspension. 

As a result, the burden shifted to Licensee to establish that he either was 

not capable of making a knowing and conscious refusal or was physically unable to 

take the test. Licensee conceded throughout his testimony that he was considerably 

intoxicated on the evening of his arrest. He explained that he fell asleep multiple 

times both at the scene of his arrest and repeatedly thereafter at the Booking Center. 

Licensee testified that he did not remember refusing. Licensee had no obvious injury 

and presented no medical evidence stating that he was incapable of knowingly or 

consciously refusing a request to consent to a blood draw. Licensee offered no 

explanation beyond his intoxication to explain the events of the evening. Thus, the 

only evidence of causation for Licensee’s refusal links that causation to his 

consumption of alcohol. As explained above, such evidence is precluded as a matter 

of law from meeting Licensee’s burden to prove that he was incapable of making a 

knowing and conscious refusal of testing. See Kollar, 7 A.3d at 340. Accordingly, 

the Trial Court erred as a matter of law by determining that Licensee’s refusal was 

not knowing and conscious.

9

 See Park; Kollar. The Trial Court therefore erred by 

sustaining Licensee’s statutory appeal of his 12-month license suspension.

9 To the extent Licensee argues that he did not refuse the blood test in the first place, and 

that he thought he was signing a consent to draw blood, we observe that such convenient and selfserving arguments are completely contrary to Trooper Corman’s testimony, which the Trial Court 

credited. Such suggestions are also further belied by Licensee’s own repeated insistence that, 

although intoxicated, he understood the situation that was occurring around him. See N.T. at 14-

15 & 17-19, R.R. at 42a-43a & 45a-47a.
11

Accordingly, we reverse the Trial Court Order.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bryan Rodas :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, : No. 1372 C.D. 2022

Appellant :

O R D E R

AND NOW, this 17th day of November. 2023, the order entered 

October 25, 2022 by the Court of Common Pleas of Dauphin County is REVERSED.

 

__________________________________

CHRISTINE FIZZANO CANNON, Judge