Motorists have no Statutory Right to Choose Method of Chemical Testing at Time of DUI Arrest

A motorist under arrest for DUI has no statutory right to request alternative testing once confronted with a police officer’s request to submit to a blood test, the Pennsylvania Supreme Court ruled in Nardone v. Dept. of Transp., Bureau of Driver Licensing, __ A.3d __ (No. 141 MAP 2014, filed Dec. 29, 2015). In so holding, the Court settled a split between the Commonwealth and Superior Courts on this issue.

John Nardone was arrested for DUI and transported to a hospital, where the arresting officer requested that he submit to a blood test. Nardone showed the officer a coagulation of blood in his arm resulting from a bump he sustained earlier in the day and expressed concern that his body may react similarly to a needle. Nardone asked if he could instead submit to urinalysis or a breathalyzer test. The officer deemed Nardone’s request a refusal and had Nardone sign the implied consent form, on which Nardone noted that the police refused his offer to submit to alternative testing. PennDOT subsequently suspended Nardone’s operating privilege for one year, and Nardone appealed. Following a hearing, the trial court sustained Nardone’s appeal, holding that his failure to submit to the test requested by police did not constitute a refusal under Section 1547(b) of Pennsylvania’s Implied Consent Law, 75 Pa. C.S. §1547(b), because he had agreed to take a reasonably practicable, different test under Section 1547(i). PennDOT appealed.

The Commonwealth Court reversed, holding 3-0 that the trial court erred in concluding that Nardone’s request for alternative testing did not diminish his consent. Nardone v. Dept. of Transp., Bureau of Driver Licensing (No. 2195 CD 2013, filed Aug. 4, 2014) (memorandum decision). The Court reiterated its holdings that a licensee does not have a choice among the three types of chemical testing authorized by Section 1547. The Court also noted that the bump on Nardone’s arm was insufficient evidence to establish that he was physically incapable of consenting to a blood test.

On discretionary review, the Supreme Court affirmed in an opinion authored by Justice Stevens. The Court acknowledged that Section 1547(i) provides that a motorist’s request for a chemical test of his breath, blood or urine shall be honored if “reasonably practicable.” Reading Section 1547(i) in pari materia with Sections 1547(a) (relating to general rule that any person operating a motor vehicle consents to one or more chemical tests) and 1547(b) (relating to consequences for refusal to submit to chemical testing), the Court held that the General Assembly did not intend Section 1547(i) to modify the essential construct of the implied consent provisions in subsections (a) and (b) to allow a motorist to negate his implied consent to the test requested by police. “By implicitly consenting to any and all chemical tests in Section 1547(a), a motorist arrested for DUI is subject to any and all tests, and he effectively relinquishes any right to choose his preferred test over an officer’s,” the Court explained. Interpreting Section 1547(i) as granting a right to alternative testing, the Court continued, would frustrate legislative intent and conflict with the public policy objective of acquiring objective, accurate chemical test results without undue delay. Finally, the Court concluded that Nardone’s request for an alternative test constituted a refusal to submit to chemical testing because the police offered him a reasonable opportunity to consent and he failed to do so.

Chief Justice Saylor authored a concurring opinion joined by Justice Todd. He opined that, although there are good reasons to commit the selection of the chemical test to the arresting officer, the statutory scheme will not be subverted if the officer allows the motorist to choose.

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