OPINION OF THE COURT
This is the appeal of Patrick M. O'Connell, Appellant, from the Opinion and Order of the Commonwealth Court reversing an order of the Court of Common Pleas of Montgomery County which, in turn, reversed a one year suspension of Appellant's driving privileges imposed by the Pennsylvania Department of Transportation, Bureau of Traffic Safety (Department). The Department imposed the one year suspension on Appellant's motor vehicle operator's license for his refusal to take a breathalyzer test as required in Section 1547(b) of the Motor Vehicle Code, 75 Pa.C.S. § 1547(b).
When Appellant had completed the form (with his changed answer to question 6), he was asked to take a breathalyzer test. At this point, the facts are somewhat disputed. Appellant testified before the trial court that he refused to take the test and that he told the officer that he was refusing because he had not been permitted to contact his attorney. The officer testified that Appellant refused three times and that he gave no reason for his refusal. The officer also testified that after the third refusal Appellant was permitted to call his lawyer and that following this conversation, Appellant was willing to submit to the breathalyzer test, but that the officer refused to administer the test because he had been unable to observe Appellant personally for the past 35-45 minutes.
The trial court accepted Appellant's testimony as credible and concluded that his refusal was based on his mistaken belief that he had a right to speak with his attorney in regards to taking the breathalyzer test and that since no such right is recognized at law, Appellant's refusal could be excused as unknowing. The Department appealed the trial court's order vacating the one year license suspension to the Commonwealth Court and argued before that court that insufficient evidence existed to support the trial court's factual findings and that the police are not required to inform an arrestee that his right to speak to an attorney (assured by Miranda) does not extend to requests to submit to breathalyzer tests.
The Commonwealth Court reviewed the trial court's findings and found them to be unsupported by the record and therefore reversed the order of the trial court. The Commonwealth Court also reviewed its case law in breathalyzer testing situations and clarified its prior holdings, ruling that police officers have a duty to inform an arrestee that he has no right to speak with an attorney in regards to taking the breathalyzer test, only where the arrestee asks to consult with someone before making the decision to take the test. Commonwealth, Department of Transportation, Bureau of Traffic Safety v. O'Connell, 99 Pa.Commw. 410, 513 A.2d 1083 (1986).
We granted Appellant's petition for allowance of appeal to determine whether the proper scope of review was applied to this matter and to give guidance in the troublesome situation presented in cases such as this one, where a person is arrested for a crime, read Miranda rights, and is then told to submit to a breathalyzer test, but is not told
When appellate courts review the decision of a court of common pleas in a license suspension case, the scope of review is limited to determining whether the findings of facts of the trial court are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion in reaching its decision. Commonwealth of Pennsylvania, Department of Transportation v. Korchak, 506 Pa. 52, 483 A.2d 1360 (1984); Bureau of Highway Safety v. Wright, 355 Pa. 307, 49 A.2d 783 (1946).
Questions of credibility and conflicts in the evidence presented are for the trial court to resolve, not our appellate courts. Korchak; see also, Waigand v. Commonwealth, 68 Pa.Commw. 541, 449 A.2d 862 (1982); McMahon v. Commonwealth, 39 Pa.Commw. 260, 395 A.2d 318 (1978).
As long as sufficient evidence exists in the record which is adequate to support the finding found by the trial court, as factfinder, we are precluded from overturning that finding and must affirm, thereby paying the proper deference due to the factfinder who heard the witnesses testify and was in the sole position to observe the demeanor of the witnesses and assess their credibility. This rule of law is well established in our jurisprudence and is rooted in concepts of fairness, common sense and judicial economy. Norfolk & W. Ry. Co. v. Pa. Public Utility, 489 Pa. 109, 413 A.2d 1037 (1980); PHRC v. Chester Housing Authority, 458 Pa. 67, 327 A.2d 335 (1974); Burbage v. Boiler Eng'g. & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969); D.F. Bast, Inc. v. Pa., PUC, 397 Pa. 246, 154 A.2d 505 (1959); see also, McGovern's Estate v. State Employment Retirement Bd., 512 Pa. 377, 517 A.2d 523 (1986).
Additionally, in license suspension cases under Section 1547(b) of the Vehicle Code, the Commonwealth must establish that the driver involved: (1) was arrested for driving while under the influence of alcohol; (2) was asked
Once the Commonwealth meets its burden, it is the driver's responsibility to prove that he was not capable of making a knowing and conscious refusal to take the test. This is a factual determination which is to be made by the trial court.
In this case, it is admitted that the Commonwealth satisfied its burden in proving that Appellant was arrested for drunken driving, was asked to submit to a breathalyzer test, that he refused, and that he was warned that his license would be suspended if he refused. The question in the case then, is whether the refusal was a knowing one. Appellant asserted at the hearing before the trial court that he refused to take the test because he was misled into believing that he was entitled to confer with an attorney prior to deciding to take the test. On direct examination, Appellant explained that he told the arresting officer he was refusing to take the test for the following reason:
The arresting officer denied that Appellant explained himself in this manner and recalled that Appellant gave no reason but simply stated, "You are signing my death warrant." On cross-examination, Appellant denied making this statement and could not recall what he said with regard to the statement to which the Commonwealth attorney was referring. Thus, the trial court was confronted with two witnesses who remembered the events of June 19, 1983 quite differently and who was in the position to decide for himself which of the two witnesses was more credible. The trial court chose to believe Appellant and his findings in this regard are conclusive. It was not for the Commonwealth Court to read into the record, weigh the evidence, and to decide for itself that Appellant did or did not state his
Appellant also argues, however, that this whole controversy arose because the request to take the breathalyzer test came hot on the heels of the Miranda questioning. Appellant specifically chose to exercise his right to speak to his attorney before proceeding any further in any questioning dealing with the drunk driving charges. Since the Appellant chose to exercise his rights, the arresting officer promptly and properly stopped any questioning, but did not let Appellant make his phone call. Instead, the officer began his requests that Appellant submit to the breathalyzer test.
Appellant argues that when he chose to exercise his right to speak with an attorney and his request was met with a request to take a test, he was confused. The Department argues that a driver's responsibility to take a breathalyzer test arises in a civil, not criminal, context and no right to speak to counsel is implicated. Accordingly, the Department argues that since Appellant was properly placed under arrest and asked to submit to the test and told the consequences if he refused to submit to the test, he was told all that the law required. The Department concludes that anything short of an unqualified assent to take the test under these circumstances is viewed as a refusal and cites various Commonwealth Court decisions in this area of the law supportive of the argument that confusion arising as to whether a driver may speak to an attorney is not a sufficient reason to refuse to submit to the breathalyzer test.
The problem in this case, and many similar cases that have arisen, is that these requests to take breathalyzer tests take place as part of the investigation conducted by police in regards to a drunk driving charge which is criminal in nature. The police proceed with the Miranda warnings and at some point (usually when the driver asks to see his lawyer) stop questioning and abruptly change "hats" and ask the driver to submit to the breathalyzer test. If the arrestee hesitates and attempts to exercise his Miranda right by asking for a lawyer or asking to make a phone call, a refusal is recorded.
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. See, Everhart v. Commonwealth, 54 Pa.Commw. 22, 420 A.2d 13 (1980); Ford v. Department of Transportation, Bureau of Traffic Safety, 45 Pa.Commw. 268, 406 A.2d 240 (1979).
Accordingly, where an arrestee requests to speak to or call an attorney, or anyone else, when requested to take a breathalyzer test, we insist that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test.
An arrestee is entitled to this information so that his choice to take a breathalyzer test can be knowing and conscious and we believe that requiring the police to qualify
Since the course of conduct of the police creates the confusion in these cases, it is appropriate to place the duty on them to clarify the extent of the right of counsel when asking arrestees to take breathalyzer tests thereby insuring that those arrestees who indicate their confusion over their Miranda rights, are not being misled into making uninformed and unknowing decisions to take the test.
The order of the Commonwealth Court is reversed.
STOUT, J., concurs in the result.
Department of Transportation, Bureau of Traffic Safety v. Bender, 107 Pa.Commw. 475, 529 A.2d 44 (1987); Appeal of Kilcullen, 103 Pa.Commw. 521, 520 A.2d 947 (1987); Department of Transportation, Bureau of Traffic Safety v. Turner, 100 Pa.Commw. 539, 515 A.2d 96 (1986); Department of Transportation, Bureau of Traffic Safety v. Bartelt, 94 Pa.Commw. 198, 503 A.2d 103 (1986); Department of Transportation, Bureau of Traffic Safety v. Doherty, 88 Pa.Commw. 482, 490 A.2d 481 (1985); King v. Department of Transportation, Bureau of Traffic Safety, 81 Pa.Commw. 177, 472 A.2d 1196 (1984); Department of Transportation, Bureau of Traffic Safety v. Mumma, 79 Pa.Commw. 108, 468 A.2d 891 (1983); Department of Transportation, Bureau of Traffic Safety v. Miele, 75 Pa.Commw. 130, 461 A.2d 359 (1983); Department of Transportation, Bureau of Traffic Safety v. Wroblewski, 65 Pa.Commw. 333, 442 A.2d 407 (1982); Wilson v. Commonwealth, 53 Pa.Commw. 342, 417 A.2d 867 (1980); Department of Transportation, Bureau of Traffic Safety v. Herman, 49 Pa.Commw. 201, 410 A.2d 1296 (1980); Sentle v. Commonwealth, 48 Pa.Commw. 479, 410 A.2d 903 (1980); Weitzel Appeal, 41 Pa.Commw. 235, 400 A.2d 646 (1979); Ford v. Department of Transportation, Bureau of Traffic Safety, 45 Pa.Commw. 268, 406 A.2d 240 (1979); Department of Transportation, Bureau of Traffic Safety v. O'Rourke, 25 Pa.Commw. 580, 361 A.2d 496 (1976); Department of Transportation, Bureau of Traffic Safety v. Cannon, 4 Pa.Commw. 119, 286 A.2d 24 (1972).