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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cindy A. Guarnieri,
:

Appellant

:

:

v.

: No. 1195 C.D. 2004

: Submitted: December 10, 2004
Commonwealth of Pennsylvania,
:
Department of Transportation,
:
Bureau of Driver Licensing
:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DORIS
A.
SMITH-RIBNER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SMITH-RIBNER

FILED: February 9, 2005

Appellant, Cindy A. Guarnieri, appeals from the order of the Court of
Common Pleas of Mercer County that denied Appellant's statutory appeal from the
one-year suspension of her operating privilege imposed by the Department of
Transportation, Bureau of Driver Licensing (DOT) pursuant to 75 Pa. C.S. §1547.
The suspension was based on Appellant's refusal to submit to a blood alcohol test
after being detained for suspicion of driving under the influence (DUI). Appellant
states one question for review: whether the trial court erred in concluding that
Appellant refused to consent to testing.

Appellant stipulated that reasonable grounds existed for her arrest for
DUI and that she was arrested for DUI by the State Police. The stipulations were
incorporated into the trial court's Findings of Fact:
3. Following her arrest, the Defendant was
handcuffed and placed into the police cruiser by Trooper
Whalen.

4. While in the police cruiser, Trooper Whalen
provided the Defendant with the Implied Consent
warnings, following which he asked the Defendant if she
understood the warnings.
5. In response to this question, the Defendant
answered in the affirmative.
6. Trooper Whalen transported the Defendant in his
cruiser to the Greenville campus of Horizon Hospital
System located in Greenville, Pennsylvania.
7. Upon arriving at the hospital, Trooper Whalen
took the Defendant to an intake clerk, at which time
Trooper Whalen read to the Defendant the chemical
testing warnings as set forth in form DL-26 and as set
forth in Exhibit 1.
....
9. Upon being advised of the DL-26 warnings, also
known as the O'Connell warnings (See Pennsylvania
Department of Transportation v. O'Connell, 555 A.2d
873) the Defendant refused to consent to the blood
alcohol test.
10. Trooper Whalen then took the Defendant to
another floor in the hospital and appeared before a
laboratory technician where he again read the warnings
from form DL-26. In response to this, the Defendant
stated that she wanted her medical condition documented
before she would consent to a blood alcohol test.
11. The Defendant had injured her knuckles in the
process of being arrested and was treated the next day by
Dr. Uberti.
12. Following this second refusal, Trooper Whalen
then transported the Defendant to the Greenville Police
Department lockup, whereupon the Defendant
complained about her injuries to her knuckles, which
Trooper Whalen felt the Defendant's complaint was
about the handcuffs being too tight.
The trial court concluded that Appellant refused the blood alcohol test, and it
accordingly denied her appeal and allowed the license suspension to stand.
2

This Court's review of a trial court's decision in a license suspension
case is limited to determining whether the trial court's findings of fact are
supported by competent evidence and whether the court committed an error of law
or abused its discretion. McLaughlin v. Department of Transportation, Bureau of
Driver Licensing, 751 A.2d 714 (Pa. Cmwlth. 2000). To sustain a license
suspension under 75 Pa. C.S. §1547(b), DOT bears the burden of proving that the
licensee was arrested for driving under the influence of alcohol, that the licensee
was requested to submit to chemical testing, that the licensee refused to do so and
that the licensee was specifically warned that a refusal would result in the
suspension of operating privileges. Department of Transportation, Bureau of
Driver Licensing v. Boucher, 547 Pa. 440, 691 A.2d 450 (1997). Once DOT meets
its burden, the burden then shifts to the licensee to prove that he or she was
physically incapable of making a knowing and conscious refusal. Id. When there
is no obvious physical inability to submit to testing, a licensee must prove his or
her incapacity through competent and unequivocal medical testimony. Jacobs v.
Department of Transportation, Bureau of Driver Licensing, 695 A.2d 956 (Pa.
Cmwlth. 1997).

Appellant argues that she did not refuse to submit to chemical testing
but rather that she sought treatment for what she thought was a broken hand prior
to the testing. Moreover, she asserts that Finding of Fact 10 supports the
proposition that she merely sought assistance for her hand prior to the testing. In
support, Appellant first cites Lutz v. Department of Transportation, Bureau of
Driver Licensing, 734 A.2d 478 (Pa. Cmwlth. 1999), where this Court determined
that the officer waived a licensee's initial failure to take a breath test by
transporting him to the hospital for a blood alcohol test and that the licensee's
3

refusal to sign a form assuming financial responsibility for blood alcohol testing
did not amount to a refusal of testing. Appellant then cites Brown v. Department of
Transportation, Bureau of Driver Licensing, 738 A.2d 71 (Pa. Cmwlth. 1999),
where this Court determined that a licensee's refusal to leave her four-year-old
child at the police station while she was taken to the hospital did not constitute a
refusal of chemical testing.

In response, DOT raises a number of contentions. First, citing Todd v.
Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 723 A.2d
655 (1999), DOT posits that consent to breath testing must be unequivocal and
unqualified. In Todd the court held that a licensee's three failed attempts at the
breath testing machine prior to the end of the machine cycle amounted to a refusal
to submit to a chemical alcohol test. Moreover, neither the police nor the licensee
may place conditions on the consent to or the administration of a chemical test.
See, e.g., Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934
(1996) (refusal to sign chemical testing consent form following arrest for DUI does
not per se constitute refusal to submit to a chemical test); Patterson v. Department
of Transportation, Bureau of Driver Licensing, 582 A.2d 700 (Pa. Cmwlth. 1990)
(failure of phlebotomist at DUI processing center to provide identification to driver
arrested for DUI did not excuse driver's refusal to submit to chemical blood test.)

DOT further contends that Appellant must establish by competent
evidence that her refusal was not knowing or conscious and that she was physically
incapable of taking the test. Boucher; Maletic v. Department of Transportation,
Bureau of Driver Licensing, 819 A.2d 640 (Pa. Cmwlth. 2003) (en banc). DOT
cites, among other cases, Flanigan v. Department of Transportation, Bureau of
Driver Licensing, 806 A.2d 524 (Pa. Cmwlth. 2002), where the licensee
4

complained of migraine headaches and sought to wait for testing until his wife
arrived with his medication. The Court determined that although the licensee
obviously suffered from migraine headaches, there was no evidence of record to
establish why the headaches would preclude a technician from extracting blood
from the licensee. As a result, the Court denied the licensee's appeal.
Assuming
arguendo that Appellant's hand was injured while being
handcuffed, the injury does not warrant Appellant's refusal to take the blood
alcohol test absent proof through unequivocal medical expert testimony of her
physical incapacity to take the test. Jacobs. Appellant failed to produce such
testimony, and, inasmuch as DOT presented substantial evidence of Appellant's
refusal to take the test, DOT has satisfied its burden of proof in this case.
Accordingly, the order of the trial court is affirmed.

DORIS A. SMITH-RIBNER, Judge
5

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cindy A. Guarnieri,

:

Appellant

:

:

v.

: No. 1195 C.D. 2004

:
Commonwealth of Pennsylvania,
:
Department of Transportation,
:
Bureau of Driver Licensing
:

O R D E R

AND
NOW,
this
9th day of February, 2005, the order of the Court of
Common Pleas of Mercer County is affirmed.

DORIS A. SMITH-RIBNER, Judge