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An attorney who declined to undergo a chemical test following his arrest for allegedly driving under the influence will still lose his driver’s license for a year, even though he offered to alternatively take breathalyzer and urinalysis tests, the Commonwealth Court has ruled.

On Aug. 4, a three-judge panel of the court ruled in Nardone v. Commonwealth of Pennsylvania that attorney John D. Nardone’s actions constituted a refusal to submit to the chemical test, and therefore the Luzerne County Court of Common Pleas erred in finding the attorney was exercising his rights under Section 1547 of the Vehicle Code.

According to Judge Bernard L. McGinley, who wrote the court’s memorandum opinion, even though Nardone had indicated to the arresting officer he was concerned about how having blood drawn would affect a bump and cut on his left arm, the attorney failed to establish he was physically unable to take the chemical test.

“Because [arresting officer Robert] Odgers had the right to choose the type of test and he chose to administer a blood test, he also had the right to deny Nardone’s request for a different type of test,” McGinley said. “Even assuming arguendo that Nardone’s statements to officer Odgers constituted notice of a medical condition, Nardone’s failure to establish such condition through competent medical testimony meant that the duty to offer another kind of test was not triggered.”

Nardone had appealed a decision from the state Department of Transportation Bureau of Drivers Licensing to suspend his license for a year after he was arrested for alleged DUI, McGinley said.

At a hearing on the suspension, Odgers testified that he had pulled Nardone over after receiving a call from dispatch regarding an erratic driver. Odgers testified that he saw Nardone driving too fast for the road conditions, and that, after he pulled Nardone over, the attorney’s eyes were bloodshot and glassy, and his speech was slurred, McGinley said.

Odgers testified that he administered a field sobriety test, and Nardone was off-balance at times, McGinley said. According to McGinley, the officer further testified that he administered a preliminary breath test with a portable machine, and the reading was .115. Odgers then arrested Nardone for driving under the influence of alcohol, McGinley said.

Odgers drove Nardone to a hospital, and requested that Nardone submit to a blood test. The officer testified that Nardone pointed to a bump on his left arm, and said he would rather take both a urine and breath test instead of a blood test, McGinley said.

Nardone testified that he had been drinking earlier in the day, but he did not come close to hitting anything while driving, and disputed having difficulty during the field sobriety test, McGinley said.

The attorney also testified that a bump and cut had developed on his arm, and he was concerned about breaking the skin. According to McGinley, Nardone said, “So my concern with the needle in either arm was there was something going on with my body, with my blood with the coagulation that I just didn’t want to have the skin broken.”

Nardone additionally disputed that he refused the officer, and said he did not believe the first breathalyzer was accurate, nor that he had been impaired.

The trial court found that Nardone had not refused to submit to testing and had exercised his rights to alternate chemical testing under the Vehicle Code, McGinley said.

The trial court relied on the state Superior Court’s 2013 decision in Commonwealth v. Baker and the Commonwealth Court’s 2013 decision in Vora v. Department of Transportation.

Baker involved a diabetic motorist who refused to have blood drawn because he had developed an infection from a prior injection. Although the defendant requested alternative testing, which the arresting officer refused, the court held that the alternative test was not unreasonable and the officer’s refusal violated the defendant’s rights.

The trial court said that, in Vora, the Commonwealth Court held that the Baker decision had no application to appeals from license suspensions for refusing to submit to chemical testing, and that the DOT must establish the licensee’s refusal. The DOT in Nardone’s case failed to establish the attorney had refused the testing, the trial court reasoned.

The DOT appealed the decision, arguing that Nardone failed to satisfy his burden of proof.

According to McGinley, Nardone’s actions constituted a refusal under the law, and the burden shifted to the attorney to show that he was physical unable to take the test.

“Anything less than a licensee’s unqualified, unequivocal assent to submit to chemical testing constitutes a refusal under Section 1547 of the code,” he said. “This court has consistently held that Section 1547 does not afford a driver a choice among the three tests noted under the section; rather, it is the police officer who has the option to choose the type of chemical test to administer.”

Neither the DOT’s attorney, Terrance Edwards, nor Albert Flora of the Luzerne County Public Defender’s Office returned a call for comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 11-page opinion in Nardone v. Commonwealth of Pennsylvania, PICS No. 14-1273, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Account holders can use our online form to order.) •