requested chemical test in Pennsylvania

2019Instead, it imposes an ultimatum upon the arrestee, who must choose either to submit to a requested chemical test or to face the consequences that follow from the refusal to do so." Id. at 1177 ; see also Jenkins , 447 U.S. at 236 , 100 S.Ct. 2124 ("the Constitution does not forbid 'every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights' "), quoting Chaffin , 412 U.S. at 30 , 93 S.Ct. 1977 .

2019The Commonwealth further asserts our recent decision in Myers supports this distinction as the lead opinion stated "Pennsylvania's implied consent statute 'imposes an ultimatum upon the arrestee, who must choose either to submit to a requested chemical test or to face the consequences that follow from the refusal to do so.' " Id. at 11, quoting Myers , 164 A.3d at 1177 (plurality).

2026See Nardone v. Dep’t of Transp., Bureau of Driver Licensing, 130 A.3d 738, 748 (Pa. 2015).

2019Viewing this testimony in a light most favorable to DOT, the inference drawn therefrom is that Trooper Imperati gave Licensee a meaningful opportunity to consent to the requested chemical test and that Licensee did not provide his “unqualified, unequivocal assent,” Mueller, 657 A.2d at 93 , because the passage of such a lengthy period of time “demonstrates an unwillingness to assent,” Nardone, 130 A.3d at 749 .

2020Whistler v. Dep’t of Transp., Bureau of Driver 12 Licensing, 882 A.2d 537, 540 (Pa. Cmwlth. 2005); Bridges v. Dep’t of Transp., Bureau of Driver Licensing, 752 A.2d 456, 459-60 (Pa. Cmwlth. 2000).

2019Whistler v. Dep’t of Transp., Bureau of Driver Licensing, 882 A.2d 537, 540 (Pa. Cmwlth. 2005); Bridges v. Dep’t of Transp., Bureau of Driver 7 Licensing, 752 A.2d 456, 460 (Pa. Cmwlth. 2000); Finney v. Dep’t of Transp., Bureau of Driver Licensing, 721 A.2d 420, 424 (Pa. Cmwlth. 1998). “[T]he reason for requiring a licensee to inform an officer of a medical condition that could affect the licensee’s ability to complete one kind of test is to obtain results through a different chemical test.” Martin v. Dep’t of Transp., Bureau of Driver Licensing, 20 A.3d 1250, 1253 (Pa. Cmwlth. 2011).

2020Whistler v. Dep’t of Transp., Bureau of Driver 12 Licensing, 882 A.2d 537, 540 (Pa. Cmwlth. 2005); Bridges v. Dep’t of Transp., Bureau of Driver Licensing, 752 A.2d 456, 459-60 (Pa. Cmwlth. 2000).

2019Whistler v. Dep’t of Transp., Bureau of Driver Licensing, 882 A.2d 537, 540 (Pa. Cmwlth. 2005); Bridges v. Dep’t of Transp., Bureau of Driver 7 Licensing, 752 A.2d 456, 460 (Pa. Cmwlth. 2000); Finney v. Dep’t of Transp., Bureau of Driver Licensing, 721 A.2d 420, 424 (Pa. Cmwlth. 1998). “[T]he reason for requiring a licensee to inform an officer of a medical condition that could affect the licensee’s ability to complete one kind of test is to obtain results through a different chemical test.” Martin v. Dep’t of Transp., Bureau of Driver Licensing, 20 A.3d 1250, 1253 (Pa. Cmwlth. 2011).

2018Additionally, the following stipulated evidence was entered into the record: (1) that Appellee was read the aforementioned chemical testing warnings by Trooper Borrelli pursuant to arrest, (2) an affidavit signed by Appellee and Trooper Borrelli which documented that Appellee was read the ____________________________________________ 4 “O'Connell warnings are the standard advisement of the requirements of Pennsylvania's implied consent law and the consequences of refusal to submit to a requested chemical test.” Commonwealth v. Myers, 164 A.3d 1162 n.3 (Pa. 2017) (citing Commonwealth, Department

2017See also Pa. Dep’t of Transp., Bureau of Driver Licensing v. Weaver, 590 Pa. 188 , 912 A.2d 259 (2006) (addressing the required content of O’Connell warnings). .

2024See N.T. at 40, R.R. at 81a; Conrad v. Dep’t of Transp., Bureau of Driver Licensing, 226 A.3d 1045 , 1054 (Pa. Cmwlth. 2020) (“It is well settled that a licensee has a duty to inform the police officer of any known medical condition that is not obvious and may affect the licensee’s ability to perform the requested chemical test.”).

2020“It is well settled that a licensee has a duty to inform the police officer of any known medical condition that is not obvious and may affect the licensee’s ability to perform the requested chemical test.” Conrad v. Dep’t of Transp., Bureau of Driver Licensing, 226 A.3d 1045 , 1054 (Pa. Cmwlth. 2020); see also Mueller, 657 A.2d at 94-95 .

2020“It is well settled that a licensee has a duty to inform the police officer of any known medical condition that is not obvious and may affect the licensee’s ability to perform the requested chemical test.” Conrad v. Dep’t of Transp., Bureau of Driver Licensing, 226 A.3d 1045 , 1054 (Pa. Cmwlth. 2020); see also Mueller, 657 A.2d at 94-95 .

2019Viewing this testimony in a light most favorable to DOT, the inference drawn therefrom is that Trooper Imperati gave Licensee a meaningful opportunity to consent to the requested chemical test and that Licensee did not provide his “unqualified, unequivocal assent,” Mueller, 657 A.2d at 93 , because the passage of such a lengthy period of time “demonstrates an unwillingness to assent,” Nardone, 130 A.3d at 749 .

2026(Footnote continued on next page…) 4 suspension appeal, “[d]eterminations 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.” Id.

2026A license suspension must be sustained pursuant to Section 1547 of the Vehicle Code, as long as the Bureau establishes that “a licensee (1) was arrested for DUI based on reasonable grounds that [s]he was operating a vehicle while under the influence of alcohol or a controlled substance; (2) was asked to submit to a chemical test; (3) refused to submit to the requested chemical test; and, (4) was warned that refusal would result in a license suspension.” Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008).6 In the context of a 6 Section 1547 of the Veh

2026South Dakota v. Neville, 459 U.S. 553, 564 (1983).

2021This Court has held: “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); see also Park v. Dep’t of Transp., Bureau of Driver Licensing, 178 A.3d 274, 281 (Pa. Cmwlth. 2018).

2019Whistler v. Dep’t of Transp., Bureau of Driver Licensing, 882 A.2d 537, 540 (Pa. Cmwlth. 2005); Bridges v. Dep’t of Transp., Bureau of Driver 7 Licensing, 752 A.2d 456, 460 (Pa. Cmwlth. 2000); Finney v. Dep’t of Transp., Bureau of Driver Licensing, 721 A.2d 420, 424 (Pa. Cmwlth. 1998). “[T]he reason for requiring a licensee to inform an officer of a medical condition that could affect the licensee’s ability to complete one kind of test is to obtain results through a different chemical test.” Martin v. Dep’t of Transp., Bureau of Driver Licensing, 20 A.3d 1250, 1253 (Pa. Cmwlth. 2011).

2019Instead, it imposes an ultimatum upon the arrestee, who must choose either to submit to a requested chemical test or to face the consequences that follow from the refusal to do so." Id. at 1177 ; see also Jenkins , 447 U.S. at 236 , 100 S.Ct. 2124 ("the Constitution does not forbid 'every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights' "), quoting Chaffin , 412 U.S. at 30 , 93 S.Ct. 1977 .

2019Instead, it imposes an ultimatum upon the arrestee, who must choose either to submit to a requested chemical test or to face the consequences that follow from the refusal to do so." Id. at 1177 ; see also Jenkins , 447 U.S. at 236 , 100 S.Ct. 2124 ("the Constitution does not forbid 'every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights' "), quoting Chaffin , 412 U.S. at 30 , 93 S.Ct. 1977 .

2019Whistler v. Dep’t of Transp., Bureau of Driver Licensing, 882 A.2d 537, 540 (Pa. Cmwlth. 2005); Bridges v. Dep’t of Transp., Bureau of Driver 7 Licensing, 752 A.2d 456, 460 (Pa. Cmwlth. 2000); Finney v. Dep’t of Transp., Bureau of Driver Licensing, 721 A.2d 420, 424 (Pa. Cmwlth. 1998). “[T]he reason for requiring a licensee to inform an officer of a medical condition that could affect the licensee’s ability to complete one kind of test is to obtain results through a different chemical test.” Martin v. Dep’t of Transp., Bureau of Driver Licensing, 20 A.3d 1250, 1253 (Pa. Cmwlth. 2011).

2019Instead, it imposes an ultimatum upon the arrestee, who must choose either to submit to a requested chemical test or to face the consequences that follow from the refusal to do so." Id. at 1177 ; see also Jenkins , 447 U.S. at 236 , 100 S.Ct. 2124 ("the Constitution does not forbid 'every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights' "), quoting Chaffin , 412 U.S. at 30 , 93 S.Ct. 1977 .

2019Instead, it imposes an ultimatum upon the arrestee, who must choose either to submit to a requested chemical test or to face the consequences that follow from the refusal to do so." Id. at 1177 ; see also Jenkins , 447 U.S. at 236 , 100 S.Ct. 2124 ("the Constitution does not forbid 'every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights' "), quoting Chaffin , 412 U.S. at 30 , 93 S.Ct. 1977 .