Pennsylvania Supreme Court Reports

DEPT. OF TRANSPORTATION v. WEAVER, 145 MAP 2005 (Pa.
12-28-2006) PENNSYLVANIA DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING, Appellee v. MICHAEL J. WEAVER,
Appellant No. 145 MAP 2005. Supreme Court of Pennsylvania,
Middle District. Argued: April 6, 2006. Decided: December
28, 2006.

Appeal from the Order of the Commonwealth Court entered
March 11, 2005, at No. 2170 CD 2004, affirming the Order of
the Court of Common Pleas of Chester County, Civil
Division, entered on September 4, 2004, at No. 04-05376,
873 A.2d 1 (Pa.Cmwlth. 2005).

CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER,
BALDWIN, JJ.

OPINION

MR. JUSTICE EAKIN.

On May 1, 2004, a police officer with the Phoenixville
Police Department arrested appellant for driving under the
influence of alcohol (DUI). The arresting officer took
appellant to a hospital where he read appellant the
warnings on the December 2003 version of the Implied
Consent Form, form DL-26,[fn1] and requested that appellant
submit to a blood test. Appellant said nothing; the officer
read the form again. Appellant then said he needed time to
think it over. The officer read the form to appellant a
third time, and appellant refused the test. By letter dated
June 15, 2004, the Pennsylvania Department of
Transportation, Bureau of Driver Licensing (PennDOT) advised
appellant his operating privilege was suspended for 18
months for refusing a chemical test, a violation of 75
Pa.C.S. § 1547. Appellant appealed the suspension,
and in a September 2, 2004 order, the trial court denied
appellant’s appeal. On September 30, 2004, appellant filed a
motion for supersedeas, which was granted to stay the
suspension pending his appeal. Trial Court Order, 9/30/04.

Appellant filed his appeal of the trial court’s September
2, 2004 order to the Commonwealth Court, raising the issue
of whether the implied consent warnings on form DL-26
satisfy the requirements of 75 Pa.C.S. § 1547(b)(2).
In an unpublished decision, the Commonwealth Court affirmed
and reinstated the suspension of appellant’s operating
privilege, determining form DL-26 satisfied §
1547(b)(2).[fn2] The court stated it is not a police
officer’s duty to inform an arrestee of the various
sanctions available so as to give the arrestee an
opportunity to decide whether it is worth violating that
law. Weaver, at 2. It further stated form DL-26 informs the
arrestee that if he fails to accede to the officer’s
request for a chemical test, he will be in violation of the
law and will be penalized for that violation, and this is
sufficient information to decide whether to submit to the
test. Id.

We granted allowance of appeal to determine whether the
warnings on form DL-26 satisfy the requirements of §
1547(b)(2)(ii) of the Vehicle Code, 75 Pa.C.S. §
1547. We hold the Commonwealth Court correctly determined
form DL-26 satisfies such requirements.

“Our scope of review of a 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 trial court committed an error of law or an
abuse of discretion in reaching its decision.” Terraciano
v. PennDOT, 753 A.2d 233, 236 (Pa. 2000) (citation
omitted). However, the question here is one of statutory
construction, which is a question of law; “hence, this
Court’s review is plenary and we owe no deference to the
lower courts’ legal conclusions.” Siekierda v. PennDOT, 860
A.2d 76, 81 (Pa. 2004) (citation omitted).

Section 1547 of the Vehicle Code provides:

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 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 . . . in violation of section .
. . 3802 (relating to driving under influence of alcohol
or controlled substance).

75 Pa.C.S. § 1547(a)(1). Section 1547(b) of the
Vehicle Code sets forth requirements that must be met
before PennDOT can suspend a person’s operating privilege
for refusing a chemical test:

(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
but upon notice by the police officer, the department
shall suspend the operating privilege of the person. . . .

* * *

(2) It shall be the duty of the police officer to inform
the person that:

(i) The person’s operating privilege will be suspended
upon refusal to submit to chemical testing; and

(ii) Upon conviction, plea or adjudication of delinquency
for violating section 3802(a), the person will be subject
to the penalties provided in section 3804(c) (relating to
penalties).

Id., § 1547(b)(1), (2).[fn3]

Appellant argues PennDOT failed to meet its burden of
proving the arresting officer complied with the
requirements of § 1547(b)(2)(ii) since the officer
failed to enumerate the penalties set forth in §
3804(c). He contends § 1547(b)(2)(ii) clearly and
unambiguously requires the arresting officer to enumerate
the penalties applicable for second, third, and subsequent
offenses as set forth in § 3804(c).[fn4] He contends
the legislature’s inclusion of the language “subject to the
penalties provided in section 3804(c)” in subparagraph (ii)
was a way of directing police to inform DUI arrestees of
each of the penalties in § 3804(c) when requesting
that a person submit to a chemical test. “The legislature
simply cited the statute as a shorthand way of describing
the duty of the police rather than restate all of the
penalties a second time in the same legislation.”
Appellant’s Brief, at 9.

The prior version of § 1547(b)(2) provided: “It
shall be the duty of the police officer to inform the
person that the person’s operating privilege will be
suspended upon refusal to submit to chemical testing. . .
.” 75 Pa.C.S. § 1547(b)(2). It required the police
to tell the arrestee of the consequences of refusing a
chemical test so the arrestee could make a knowing and
conscious choice. Appellant’s Brief, at 13 (citing PennDOT
v. O’Connell, 555 A.2d 873 (Pa. 1989)). Appellant states
“[a] failure to provide the required warning meant there
was no refusal upon which to base a suspension.” Id., at
12. Appellant contends that under the version of §
1547 in effect at the time of his arrest, the legislature
required the officer to inform the arrestee regarding
suspension of operating privilege and all possible criminal
consequences of a refusal before an arrestee can be
penalized for refusing a chemical test. Appellant claims
since the officer did not comply with the legislature’s
mandate under subparagraph (ii), “there can be no refusal
and no basis for a suspension. . . .” Id., at 13.

Appellant further argues that even if §
1547(b)(2)(ii) is ambiguous, the rules of statutory
construction require the warnings to include the enhanced
penalties for second, third, and subsequent offenses. He
asserts form DL-26’s reference to “section 3804(c)” is
“meaningless to anyone but vehicle code experts . . . [and]
it would be unreasonable and absurd to suggest that the
legislature would require police to impart information to
arrestees that would have no meaning to them.” Id., at 15.
He argues the inclusion of this clause lessens the impact
of the warnings and fosters refusals since the clause
minimizes the potential mandatory minimums facing repeat
offenders. Appellant contends, “[r]epeat offenders would be
much more likely to submit to the test if informed that the
refusal and conviction would result in 90 days in prison
and a $1,500 fine if it was a second offense and one year
in jail and a $2,500 fine if it was a third or subsequent
offense.” Id., at 16.

PennDOT argues the warnings on form DL-26 were sufficient
to comply with the duty imposed on police officers by
§ 1547(b)(2). See Weaver. PennDOT argues these
warnings satisfy § 1547(b)(2)(ii) since they inform
the driver that upon conviction, plea, or adjudication of
delinquency for violating § 3802(a), the driver will
be subject to the more severe penalties set forth in
§ 3804(c). Appellee’s Brief, at 8. It notes the
Commonwealth Court has consistently denied similar
challenges to the sufficiency of the form DL-26 warnings.
Appellee’s Brief, at 20 (citing Alexander v. PennDOT, 885
A.2d 651 (Pa.Cmwlth. 2005); Witmer v. PennDOT, 880 A.2d 716
(Pa.Cmwlth. 2005); Garner v. PennDOT, 879 A.2d 327
(Pa.Cmwlth. 2005)).

PennDOT contends the version of § 1547(b)(2)
effective at the time of appellant’s arrest is not
complicated or ambiguous, and requires a police officer to
provide only two specific pieces of information: first,
that the arrestee’s operating privilege will be suspended
upon refusal to submit to chemical testing, and second,
that if he refuses testing, and is later convicted of a
violation of 75 Pa.C.S. § 3802(a), he will be
subject to the penalties in § 3804(c). PennDOT argues
the plain language of § 1547(b)(2) requires the
officer inform the arrestee of only these two points.

PennDOT argues the second sentence of paragraph three of
form DL-26 satisfies the duty imposed by subparagraph (ii)
since that sentence provides all the information mandated
by the legislature, as well as accurate information not
required by the statute. It asserts subparagraph (ii) does
not require an officer to specifically enumerate the
various penalties set forth in § 3804(c). PennDOT
further argues “[t]he information [in the third paragraph
of form DL-26] regarding the minimum penalties imposed
under Section 3804(c) is not required by Section
1547(b)(2)(ii) and, while accurate, it is extraneous and
gratuitous and should not affect the validity of the warning
itself.” Appellee’s Brief, at 19. PennDOT urges this Court
not to find the warnings insufficient based on its
“gratuitous” inclusion of information that is not required
by § 1547(b)(2)(ii). Id., at 22.

The object of statutory interpretation is to determine the
intent of the General Assembly. 1 Pa.C.S. § 1921(a).
“When the words of a statute are clear and free from all
ambiguity, they are presumed to be the best indication of
legislative intent.” Hannaberry HVAC v. Workers’
Compensation Appeal Board (Snyder, Jr.), 834 A.2d 524, 531
(Pa. 2003) (citing Pennsylvania Financial Responsibility
Assigned Claims Plan v. English, 664 A.2d 84, 87 (Pa.
1995)). If the words of the statute are not explicit, the
General Assembly’s intent may be ascertained by
considering:

(1) The occasion and necessity for the statute.

(2) The circumstances under which it was enacted.

(3) The mischief to be remedied.

(4) The object to be attained.

(5) The former law, if any, including other statutes upon
the same or similar subjects.

(6) The consequences of a particular interpretation.

(7) The contemporaneous legislative history.

(8) Legislative and administrative interpretations of
such statute.

1 Pa.C.S. § 1921(c). Moreover, in ascertaining the
General Assembly’s intent, we presume the General Assembly
did not intend a result that is absurd, impossible of
execution, or unreasonable. Id., § 1922(1).

The essence of appellant’s argument is that §
1547(b)(2)(ii) requires warnings beyond those provided in
form DL-26. We disagree. Subparagraph (ii) commands police
officers to inform an arrestee that “(ii) upon conviction,
plea or adjudication of delinquency for violating section
3802(a), the person will be subject to penalties provided in
section 3804(c) (relating to penalties).” 75 Pa.C.S.
§ 1547(b)(2)(ii). The words of this statute are
clear and free from all ambiguity; thus, we will glean the
legislative intent from those words. English, at 87 (“Where
the words of a statute are clear and free from ambiguity
the legislative intent is to be gleaned from those very
words.”). The plain language requires only that the officer
inform the arrestee that if he is convicted of DUI, refusal
will result in additional penalties; it does not require
the officer to enumerate all of the possible penalties, as
appellant claims.

We reject appellant’s claim that form DL-26’s reference to
§ 3804(c) is meaningless to anyone save Vehicle Code
experts and that it is unreasonable and absurd that the
legislature would require police to give an arrestee
meaningless information. Form DL-26 gives an arrestee an
easily understandable warning that if he refuses a chemical
test and is convicted of DUI, he will be subject to severe
penalties because of his refusal. That which the
legislature required the police to provide an arrestee is
clear, and does not include the impractical complexity of
explaining each of the three sections and eleven
sub-subsections set forth in § 3804(c).

We also reject appellant’s claim that form DL-26 did not
satisfy § 1547(b)(2)(ii)’s requirements. The form
stated that if an arrestee refuses to submit to a chemical
test, and he is convicted of DUI, because of his refusal,
he will be subject to the penalties set forth in §
3804(c), “which include a minimum of 72 hours in jail and a
minimum fine of $1000.00.” Form DL-26 (December 2003)
(emphasis added). The clause included in form DL-26 is an
accurate statement of the minimum penalties set forth in
§ 3804(c). This clause does not state the minimum
penalties of 72 hours imprisonment and $1000 fine are
exhaustive of the penalties set forth in § 3804(c);
rather, it states the penalties set forth in §
3804(c) include these minimum penalties, which suggests
other penalties are available. While some arrestees may be
more willing to submit to a chemical test if provided with
the most severe penalties to which they may be subject,
this information is not necessary under the statute. As the
Commonwealth Court succinctly noted, “It is not the duty of
the police to explain the various sanctions available under
a given law to an arrestee to give that individual an
opportunity to decide whether it is worth it to violate
that law.” Weaver, at 2. This inclusion of accurate
information concerning the minimum penalties, beyond what
the legislature required, does not affect the validity of
form DL-26 warnings. Indeed, it informs the arrestee that
the penalties are concrete, and not inconsequential.

Appellant also challenges the Commonwealth Court’s filing
of unpublished decisions. He asserts unpublished decisions
harm our justice system by allowing courts to put
inadequate thought and emphasis into the legal reasoning
behind decisions, allowing result-driven decisions, and not
benefiting the bench and bar with well-reasoned
precedential decisions. Appellant urges this Court to
nullify the internal operating procedures that permit use
of per curiam memorandum decisions, thereby requiring the
Commonwealth Court to publish all decisions. Appellant’s
Brief, at 17-19. Appellant asserts this case “clearly
illustrates the folly of allowing non-precedential
opinions.” Id., at 18.

Appellant, however, fails to acknowledge the Commonwealth
Court ordered publication of this decision. Moreover,
Commonwealth Court IOP 412 sets forth clear and
well-reasoned criteria for determining whether a decision
should be reported. See 210 Pa. Code § 67.53.
Suggesting that decisions not published beyond the parties
are somehow inadequately considered by the appellate court
is near scurrilous. There is no reason for this Court to
disturb this practical and salient procedure.

For the reasons provided, we affirm the Commonwealth Court.

Order affirmed.

Mr. Chief Justice Cappy, Mr. Justice Castille, Madame
Justice Newman and Mr. Justice Saylor join the opinion.

Mr. Justice Baer files a dissenting opinion in which
Madame Justice Baldwin joins.

[fn1] The December 2003 version of form DL-26 provided:

1. Please be advised that you are under arrest for
driving under the influence of alcohol or 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. It is my duty as a police officer to inform you that
if you refuse to submit to the chemical test, your
operating privilege will be suspended for at least one
year. In addition, if you refuse to submit to the chemical
test, and you are convicted of, plead to, or adjudicated
delinquent with respect to violating Section 3802(a) of
the Vehicle Code, because of your refusal, you will be
subject to the more severe penalties set forth in Section
3804(c) of the Vehicle Code, which include a minimum of 72
hours in jail and a minimum fine of $1000.00.

4. It is also my duty as a police officer to inform you
that you have no right to speak with an attorney or anyone
else before deciding whether to submit to testing and any
request to speak with an attorney or anyone else after
being provided these warnings or remaining silent when
asked to submit to chemical testing will constitute a
refusal, resulting in the suspension of your operating
privilege and other enhanced criminal sanctions if you are
convicted of violating Section 3802(a) of the Vehicle
Code.

Form DL-26 (December 2003), Commonwealth’s Exhibit No. C-1.

[fn2] The Commonwealth Court ordered publication of this
decision May 3, 2005. PennDOT v. Weaver, 873 A.2d 1, 1
(Pa.Cmwlth. 2005).

[fn3] Section 1547(b)(2)(ii) has been amended since
appellant was arrested; it now provides: “if the person
refuses to submit to chemical testing, upon conviction or
plea for violating section 3802(a)(1), the person will be
subject to the penalties provided in section 3804(c)
(relating to penalties).” P.L. 1369, No. 177, § 2,
Effective November 29, 2004.

[fn4] At the time of appellant’s arrest, § 3804(c)
provided:

An individual who violates section 3802(a)(1) and refused
testing of blood or breath or an individual who violates
section 3802(c) or (d) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 72 consecutive
hours nor more than six months;

(ii) pay a fine of not less than $1,000 nor more than
$5,000;

(iii) attend an alcohol highway safety school approved by
the department; and

(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 90 days nor
more than five years;

(ii) pay a fine of not less than $1,500;

(iii) attend an alcohol highway safety school approved by
the department; and

(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than one year nor
more than five years;

(ii) pay a fine of not less than $2,500; and

(iii) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.

75 Pa.C.S. § 3804(c).

MR. JUSTICE BAER

DISSENTING OPINION

Today, the Majority holds that the legislature’s directive
requiring a police officer to inform one under arrest for
driving under the influence of the consequences of failure
to consent to chemical testing is met through the following
text:

It is my duty as a police officer to inform you that if
you refuse to submit to the chemical test, your operating
privilege will be suspended for at least one year. In
addition, if you refuse to submit to the chemical test,
and you are convicted of, plead to, or adjudicated
delinquent with respect to violating Section 3802(a) of
the Vehicle Code, because of your refusal, you will be
subject to the more severe penalties set forth in Section
3804(c) of the Vehicle Code, which include a minimum of 72
hours in jail and a minimum fine of $1000.00.

Form DL-26 (December 2003).

Respectfully, this is meaningless to all except those most
involved in the intricacies of the law surrounding driving
under the influence. Does anyone really question what the
reaction of the United States Supreme Court would have been
if in the aftermath of its decision in Miranda v. Arizona,
384 U.S. 436, 444 (1966), police would have been so
presumptuous as to deliver Miranda warnings[fn1] by
informing arrestees: “You have rights as provided at 384
U.S. 436, 444”? Indeed, while many arrestees might well be
able to recite the procedural safeguards of constitutional
rights required by Miranda from the countless times those
warnings have been stated in movies and television
depictions, few judges or lawyers and virtually no
laypeople could discern the penalties provided merely by
reference to “Section 3804(c).”

Accordingly, I cannot join my colleagues in holding that
the warnings provided by Form DL-26 satisfy the
Legislature’s directive pursuant to 75 Pa.C.S. §
1547(b)(2) and our requirement in Commonwealth v.
O’Connell, 555 A.2d 873 (Pa. 1989), that police officers
provide an arrestee with information regarding the
consequences of refusing chemical testing sufficient to
enable that arrestee to make an informed decision of
whether to consent to the test.

In O’Connell, we insisted that the arrestee be told not
only of the civil consequences of refusing testing but also
that the constitutional right to an attorney did not apply
to the decision to refuse the chemical test.[fn2] “An
arrestee is entitled to this information so that his choice
to take a [chemical] test can be knowing and conscious and
we believe that requiring the police to qualify the extent
of the right to counsel is neither onerous nor will it
unnecessarily delay the taking of the test.” 555 A.2d 878.

Through Section 1547(b)(2)(ii), the legislature imposed on
police officers a duty to inform the arrestee that “[t]he
person’s operating privileges will be suspended upon
refusal to submit to chemical testing” and that “[u]pon
conviction, plea or adjudication of delinquency for
violating section 3802(a) [DUI], the person will be subject
to the penalties provided in section 3804(c) (relating to
penalties).” 75 Pa.C.S. § 1547(b)(ii). These
penalties range from “imprisonment of not less than 72
consecutive hours” and “a fine of not less than $1,000 nor
more than $5,000” for first-time offenders to “imprisonment
of not less than one year” and “a fine of not less than
$2,500” for a third or subsequent offense. 75 Pa.C.S.
§ 3804(c). Clearly, the purpose of Section
1547(b)(ii) is to entitle arrestees to the information
necessary to assess the dire consequences they face if they
fail to consent to chemical testing, to ensure their choice
in that regard is knowing and conscious, as we described in
O’Connell.

My colleagues hold that “[t]he plain language [of Section
1547(b)(2)] requires only that the officer inform the
arrestee that if he is convicted of DUI, refusal will
result in additional penalties. . . .” Maj. Slip Op. at 8.
The Majority even suggests that PennDOT’s provision of
information regarding the minimum penalties of Section
3804(c) is, in fact, not required to fulfill an officer’s
informational duty pursuant to Section 1547(b)(2). Maj.
Slip Op. at 9 (“This inclusion of accurate information
concerning the minimum penalties, beyond what the
legislature required, does not affect the validity of form
DL-26 warnings.” (emphasis added)). I cannot conclude that
the Legislature intended that the mere citation to a
section number, as the Commonwealth suggests, or reference
to “additional penalties,” as the Majority opines, would
provide the information necessary to allow arrestees to make
a knowing choice. The section number is meaningless to most
arrestees and the inclusion of merely the minimum sentence
as provided in Form DL-26 does not provide information
necessary for a knowing decision, and, given the severe
consequences for repeat offenders, may well be misleading.
See O’Connell, 555 A.2d at 877 (“The law has always
required that the police must tell the arrestee of the
consequences of a refusal to take the test so that he can
make a knowing and conscious choice.”).

I do not contend that an officer has a duty to recite every
penalty provided in Section 3804(c). Instead, I believe the
import of the penalties could be conveyed sufficiently by
the addition of information regarding the maximum
penalty.[fn3] The additional information will not only
provide the arrestee with the ability to make a knowing
choice, but also will forward the purpose of the implied
consent rule. The greater warning will likely entice more
arrestees to submit to the test to avoid the greater
penalty for refusing. More arrestees submitting to the test
will garner better evidence for the Commonwealth and the
courts in determining the proper punishment for those found
in violation of Pennsylvania’s laws.

Accordingly, I would reverse the decision of the
Commonwealth Court and hold that the warnings provided by
Form DL-26 do not meet the requirements of 75 Pa.C.S.
§ 1547(b)(2).

Madame Justice Baldwin joins this opinion.

[fn1] Miranda requires the police to inform an arrestee
that: “Prior to any questioning, the person must be warned
that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained
or appointed.” Miranda, 384 U.S. at 444.

[fn2] I note that our decision in O’Connell predated the
provision imposing incarceration for refusal of testing and
subsequent conviction of the underlying crime, and thus
only contemplated the sufficiency of warnings for purposes
of the civil collateral consequence of license suspension.
I do not speak to whether the same analysis would apply
following the addition of penalties involving imprisonment
as that issue has not been fully briefed or argued before
this Court.

[fn3] For example, rather than informing the arrestee that
if he refuses and is convicted, he “will be subject to the
more severe penalties set forth in Section 3804(c) of the
Vehicle Code, which include a minimum of 72 hours in jail
and a minimum fine of $1,000,” the officer could provide a
fuller warning by adding “and, if you have been convicted of
DUI in the past, you may be subject to imprisonment of not
less than one year and a fine of not less than $2,500.”