IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Francis Nicholas DiMeo, III, :

:

Appellant :

:

 v. : No. 475 C.D. 2022

: Submitted: September 30, 2022

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: January 4, 2023

Francis DiMeo (Licensee) appeals from the March 29, 2022 order of 

the Montgomery County Court of Common Pleas (trial court) that denied his appeal

from a 12-month suspension of his operating privilege imposed by the 

Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver 

Licensing (DOT), under Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S.

§1547(b)(1)(i), based on his refusal to submit to a chemical test.

1

 Licensee argues

1 Commonly known as the “Implied Consent Law,” Section 1547 of the Vehicle Code 

states in relevant part: 

(a) General rule.--Any person who drives, operates or is in actual 

physical control of the movement of a vehicle in this 

Commonwealth shall be deemed to have given consent to one or 

more chemical tests of breath, blood or urine for the purpose of 

(Footnote continued on next page...)
2

that DOT did not meet its burden of showing Licensee was offered a meaningful 

opportunity to consent to a chemical test. Upon review, we affirm. 

By notice mailed January 5, 2021, DOT warned Licensee that his 

driving privilege would be suspended for 12 months, effective February 9, 2021,

based on his refusal to submit to chemical testing on September 9, 2020. Licensee 

timely appealed to the trial court, which conducted a de novo hearing on March 29, 

2022.

At the hearing, Plymouth Township Police Officer George Cornick 

(Arresting Officer) testified for DOT, and his testimony may be summarized as 

follows. On September 8, 2020, while on patrol, Arresting Officer was dispatched 

to a Lukoil station for report of a suspicious vehicle. A passerby had reported that a 

male was unconscious in a vehicle in the entranceway to the gas station. Upon 

arrival, Arresting Officer located the vehicle in the entranceway. Reproduced 

determining the alcoholic content of blood or the presence of a 

controlled substance if a police officer has reasonable grounds to 

believe the person to have been driving, operating or in actual 

physical control of the movement of a vehicle: 

(1) in violation of section 3802 (relating to driving under influence 

of alcohol or controlled substance) ... .;

* * *

(b) Suspension for refusal.--

(1) If any person placed under arrest for a violation of Section 3802 

is requested to submit to chemical testing and refuses to do so, the 

testing shall not be conducted upon notice by the police officer, 

[DOT] shall suspend the operating privilege of a person as follows:

(i) . . . for a period of 12 months. 

75 Pa. C.S. §1547(a)(1), (b)(1)(i). 
3

Record (R.R.) at 10-11.; License Suspension Hearing, 5/23/22, Notes of Testimony

(N.T.) at 4-5. Arresting Officer observed the vehicle’s headlights and taillights were 

activated, and the engine was running. N.T. at 5. The operator of the vehicle, who 

was the sole occupant, had his head tilted back, and his eyes closed. Id. Licensee

appeared to be unconscious. Id. Arresting Officer knocked on the window, but was 

unable to wake the operator, whom he identified as Licensee. Arresting Officer 

opened the door and performed sternum rubs until Licensee woke up. Id. Arresting 

Officer asked if Licensee was okay and observed that Licensee’s speech was 

severely slurred. Id. Arresting Officer asked Licensee to exit the vehicle; Licensee

complied. Id. Arresting Officer observed that Licensee had poor balance and he fell 

against the door. Id. As Licensee moved, he fell against one of the other police 

officers toward the rear of his vehicle who was assisting at the scene. Id. At that 

point, Arresting Officer again attempted to question Licensee. Id. Licensee

admitted he consumed marijuana earlier that day. Id. 

Arresting Officer testified that, because of Licensee’s indicated 

toxication and confusion, he thought it was best to take Licensee to the hospital. 

N.T. at 8. Emergency Medical Services (EMS) arrived and transported Licensee to 

the hospital for further medical attention. Id. at 6. Due to Licensee’s level of 

intoxication, Arresting Officer decided to forgo the administration of the 

standardized field sobriety tests. Id. Arresting Officer testified that, if Licensee had 

not been taken to the hospital, he would have placed Licensee in custody. Id. at 6-

7. Licensee was not free to go.2Id. at 7. 

2 One of the officers who was assisting Arresting Officer moved Licensee’s vehicle to a 

legal parking spot. R.R. at 12. During an inventory search of the vehicle, packaging for a 

marijuana vape pen was found and secured. Id.
4

Arresting Officer arrived at the hospital with the ambulance that 

transported Licensee at around 12:30 or 12:40 a.m. N.T. at 15. Arresting Officer 

spoke to Licensee when he was in a hospital bed. Id. at 14. Arresting Officer 

testified that Licensee was more alert than he was on the scene. Id. at 9. Arresting 

Officer read a Pennsylvania DL-26B blood test form (DL-26B form) to Licensee

verbatim. Id. at 6. Licensee asked Arresting Officer questions, including whether 

he could speak to a lawyer. Id. at 6. Arresting Officer re-read the last warning on 

the DL-26B form to Licensee. Id. The last warning on the DL-26B form states: 

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. 

R.R. at 32.

Arresting Officer testified that Licensee asked what Arresting Officer

felt was best for him, and Arresting Officer told him that he could not make that 

decision for him. N.T. at 6. Licensee verbally refused the chemical test. Id. at 6.

Licensee did not testify or present a medical witness. Instead, Licensee 

offered the hospital records, which the trial court admitted over DOT’s hearsay 

objections. N.T. at 12. Licensee argued that he did not have a meaningful 

opportunity to consent. Licensee further asserted that the alleged refusal was not 

knowing at the time. Id. at 15-16. In support of these arguments, Licensee relied on 

the hospital records, which indicated that he was in a confused state that existed 

around 12:30 or 12:40 a.m. to around 4:54 a.m., he could not remember any phone 

numbers, and his gait was unsteady. Id.
5

Based on the testimony and evidence presented, the trial court found 

the following facts. Arresting Officer read the DL-26B form verbatim to Licensee 

at the hospital. Trial Court 5/23/2022 Opinion at 2. Licensee was more alert at the 

hospital than he was at the scene. Id. Licensee refused to submit to a chemical test 

and signed the DL-26B form. The DL-26B form clearly states the consequences of 

a refusal. Id. at 3. Relying on Department of Transportation v. Renwick, 669 A.2d 

934, 939 (Pa. 1996), the trial court concluded it is well settled that anything less than 

an unqualified, unequivocal assent constitutes a refusal under Section 1547 of the 

Vehicle Code. Id. Accordingly, the trial court held that DOT met its burden of 

showing that Licensee was offered a meaningful opportunity to submit to the blood 

test, and that Licensee did not meet his burden to show his refusal was not knowing 

or conscious. Id. at 4. Thus, the trial court denied Licensee’s appeal to rescind the 

suspension. 

On appeal to this Court,

3 Licensee argues that the trial court erred by 

disregarding the hospital records demonstrating Licensee’s confusion. When this 

evidence is considered, Licensee contends that DOT did not meet its burden of 

3 The issue of whether a licensee refused to submit to a chemical test is a question of law 

subject to plenary review by this Court. Mueller v. Department of Transportation, Bureau of 

Driver Licensing, 657 A.2d 90, 93 (Pa. Cmwlth. 1995). Our scope of review is limited to 

“determining whether the trial court’s findings are supported by substantial evidence, whether 

errors of have been committed, or whether the trial court’s determinations demonstrate a manifest 

abuse of discretion.” McCloskey v. Department of Transportation, Bureau of Driver Licensing, 

722 A.2d 1159, 1161 (Pa. Cmwlth. 1999).

“Review for capricious disregard of material, competent evidence is an appropriate 

component of appellate consideration in every case in which such question is properly brought 

before the court.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 

812 A.2d 478, 487 (Pa. 2002). Capricious disregard occurs only when the fact-finder deliberately 

ignores relevant, competent evidence. Id. Where substantial evidence supports the findings, and 

those findings in turn support the conclusions, it should remain a rare instance where an appellate 

court disturbs an adjudication based on capricious disregard. Id.
6

showing Licensee was offered a meaningful opportunity to comply with Section 

1547 of the Vehicle Code. We disagree. 

To begin our analysis, we note that it is not the province of this Court 

on appellate review to make new or different findings of fact. Reinhart v. 

Department of Transportation, Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. 

Cmwlth. 2008). If the trial court’s findings are supported by the evidence, we are 

precluded from disturbing them. Id. In addition, we must view the evidence in a 

light most favorable to the party that prevailed before the trial court. Id. It is clear 

that determinations as to witness credibility and the weight assigned to the evidence 

are matters within the province of the trial court as fact-finder. Id. The trial court 

may accept or reject the testimony of any witness, either in whole or in part. Id. 

To sustain a suspension of a licensee’s operating privilege under the 

Implied Consent Law, DOT must establish that (1) the driver was arrested for driving 

under the influence (DUI) by a police officer with reasonable grounds to believe the 

licensee was operating a vehicle while under the influence of alcohol or a controlled 

substance; (2) the driver was asked to submit to a chemical test; (3) the driver refused 

to take the chemical test; and (4) the driver was specifically warned that refusing the 

test would result in the revocation of his or her driver’s license. Banner v. 

Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206 

(Pa. 1999). In proving whether a licensee refused to submit to chemical testing, 

DOT has the burden of showing that the licensee was offered a meaningful 

opportunity to submit to chemical testing. Petrocsko v. Department of 

Transportation, Bureau of Driver Licensing, 745 A.2d 714, 716 (Pa. Cmwlth. 2000).

Whether a motorist refused to submit to a chemical test is a question of 

law that depends on the factual determinations of the trial court. Hudson v. 
7

Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa. 

Cmwlth. 2003). Police officers are not required to spend time either cajoling an 

arrestee or waiting for him to change his mind. Grogg v. Department of 

Transportation, Bureau of Driver Licensing, 79 A.3d 715, 718 (Pa. Cmwlth. 2013). 

A reading of the DL-26 form sufficiently apprises the driver, either hearing or 

reading it, that if he refuses to submit to the chemical test, his operating privilege 

will be suspended. Quigley v. Department of Transportation, Bureau of Driver 

Licensing, 965 A.2d 349, 353 (Pa. Cmwlth. 2009). It is well settled that “anything 

less than an unqualified, unequivocal assent” to submit to testing constitutes a refusal 

to do so. Renwick, 669 A.2d at 938.

Once DOT meets its burden, the burden then shifts to the Licensee to 

prove that he was physically incapable of taking the chemical test or that the refusal 

was not knowing or conscious. Kollar v. Department of Transportation, Bureau of 

Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010). The 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. Barbour v. Department of Transportation, 

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. Medical testimony is generally required in order to establish that a 

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

chemical testing. Id. A licensee’s self-serving testimony that he was incapable of 

making a knowing and conscious refusal of chemical testing is insufficient to meet 

the licensee’s burden of proof. Ostermeyer v. Department of Transportation, Bureau 

of Driver Licensing, 703 A.2d 1075, 1077 (Pa. Cmwlth. 1997). 
8

Here, Licensee’s argument conflates his burden of proof with that of 

DOT. It was DOT’s initial burden to prove that Licensee was offered a meaningful 

opportunity to submit to chemical testing. In this regard, DOT offered the testimony 

of Arresting Officer. N.T. at 6-7. Arresting Officer testified he read the DL-26B 

form verbatim to Licensee. Id. at 6. Arresting Officer stated that he also provided 

Licensee an opportunity to read the warnings and ask questions. Id. Arresting 

Officer declared that Licensee was alert and able to answer the request for a blood 

test. Id. at 9. Arresting Officer testified that Licensee promptly refused to submit to 

the blood test and signed the DL-26B form. Id. at 6. This evidence satisfies DOT’s 

burden that Licensee was given a meaningful opportunity to submit to the blood test.

Once DOT showed that Licensee was given a meaningful opportunity

to take the test, the burden then shifted to Licensee to show by competent medical 

evidence that he was physically incapable of taking the chemical test or that the 

refusal was not knowing or conscious. Kollar, 7 A.3d at 33. In this regard, Licensee

did not present the testimony of a medical expert regarding his condition or inability 

to make a knowing and conscious refusal. Instead, Licensee relied solely on his 

medical records from the hospital, which the trial court admitted over DOT’s hearsay 

objection. 

While hospital records are an exception to the hearsay rule, and are 

admissible under Section 6108 of the Uniform Business Records as Evidence Act, 

42 Pa. C.S. §6108, only the fact of hospitalization, the treatment prescribed, and the 

symptoms given are admissible as evidence. Commonwealth v. DiGiacomo, 345 

A.2d 605, 608 (Pa. 1975). Opinions, diagnoses, and conclusions contained therein 

are not admissible. Id. Further, a hospital record offered to show a medical opinion 

as expert testimony is not admissible where the doctor is not available for cross-
9

examination. Id.4 Upon review, the trial court did not err in determining that 

Licensee failed to show by competent medical evidence that he was incapable of 

making a knowing and conscious refusal. 

Accordingly, we affirm the trial court’s order.

MICHAEL H. WOJCIK, Judge

4

Indeed, as this Court has explained:

The only medical evidence offered by [the licensee] was the 

written report of Dr. Menio. DOT objected to the admission of the 

report on the basis that it had no opportunity to cross-examine Dr. 

Menio. The trial court overruled the hearsay objection and admitted 

the report into evidence, basing its finding that [the licensee] was 

physically incapable of successfully performing the breath test upon 

that document.

The courts of this Commonwealth have long adhered to the 

policy that the use of hearsay evidence is to be discouraged. 

Heddings v. Steele, [526 A.2d 349, 351 (Pa. 1987)]. Due process 

requires the challenging party be afforded a reasonable opportunity 

to cross-examine the reliability of adverse evidence. Pennsylvania 

State Police, Bureau of Liquor Control Enforcement v. 139 

Horseshoe Corp., [629 A.2d 290, 293 (Pa. Cmwlth. 1993)].

“Although the right of cross-examination is not absolute and 

although hearsay evidence may be received upon proof of 

exceptional circumstances . . ., cross-examination is particularly 

important where it is the only means for testing the reliability of an 

opinion regarding disputed facts.” Ganster v. Western Pennsylvania 

Water Co., [504 A.2d 186, 192 (Pa. Super. 1985)]. Because Dr. 

Menio’s report was so crucial in this case, we hold that the trial court 

erred as a matter of law in admitting the report over DOT’s objection 

based upon its inability to cross-examine Dr. Menio.

Hatalski v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386, 390-91 (Pa. 

Cmwlth. 1995) (footnote omitted).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Francis Nicholas DiMeo, III, :

:

Appellant :

:

 v. : No. 475 C.D. 2022

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

O R D E R

AND NOW, this 4

th day of January, 2023, the order of the Montgomery 

County Court of Common Pleas, dated March 29, 2022, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge