In Commonwealth v. Nies, No. 5793-2012 (Pa. Ct. Com. Pl, Apr. 18, 2013), the Honorable John A. Boccabella of the Berks County Court of Common Pleas applied a somewhat rare exception to the requirement that those who do not submit to a blood test in connection with a DUI investigation are subject to enhanced sentencing requirements. This exception applies to those with a hearing impairment. In doing so, Judge Boccabella blocked the enhanced sentencing requirements for a deaf motorist who refused to submit to a blood test during a DUI investigation.
Specifically, on October 15, 2012, Muhlenberg Township Police received a call and investigated an allegedly intoxicated motorist hanging out of the window of his pickup truck in Berks County, Pennsylvania. After conversing with the Defendant, the investigating officer placed him under arrest for suspicion of DUI. Once taken to St. Joseph Hospital, the Defendant allegedly refused to take a blood test. Consequently, when charged with DUI, the Commonwealth invoked the sentencing enhancement pursuant to 75 Pa. C.S. § 3804(c) for failure to submit to a blood test.
Although the Defendant did not contest the DUI charge, he filed a Petition for Habeas Corpus and argued that the Commonwealth could not prove that he refused to take a blood test upon request. Defendant argued that, for the sentencing enhancement of § 3804(c) to apply, the Commonwealth must show (1) that the Defendant refused the blood test, and (2) that the Defendant was aware of potential consequences of refusing the blood test. Defendant pointed out that pursuant to 75 Pa. C.S. § 1547(a), among other things, it is the police officer's duty to inform the motorist that under the sentencing enhancement, the person's driving and operating privileges will be suspended upon refusal to submit to the chemical testing. Furthermore, the Defendant argued that under Commonwealth v. Xander, 14 A.3d. 174 (Pa. Super. Ct. 2011), courts require a knowing and conscious refusal to submit to chemical testing for the enhanced sentencing to apply.
Here, Judge Boccabella found that the Defendant did not make a knowing and conscious refusal to submit to chemical testing. Specifically, testimony showed that the Defendant is hearing impaired. Furthermore, at the time of his questioning by the investigating officer, the Defendant's hearing aid was on the floor of his truck.
Judge Boccabella found that, despite the fact that the investigating officer read the possible sanctions from the Commonwealth form (DL-26) during his arrest, the Defendant did not understand or hear what the investigating officer said to him. Specifically, testimony established that, during the entire investigation, the Defendant unresponsively faced ahead. Judge Boccabella further found that all of the parties involved were aware that the Defendant had a hearing disability. Nevertheless, the police officers did not take extra steps to further communicate with the Defendant to ensure his understanding of the consequences of a refusal to submit to a blood test. The officers simply read from the DL-26 form, despite the fact that it was clear that the Defendant had no idea what was being said to him. Accordingly, the Court held that the Defendant had not made a knowing refusal to submit to a blood test, and enhanced sentencing was set aside.
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