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DEPARTMENT TRANSPORTATION v. CANNON (01/06/72)

decided: January 6, 1972.

DEPARTMENT OF TRANSPORTATION
v.
CANNON



Appeal from the Order of the Court of Common Pleas of Chester County in case of Commonwealth of Pennsylvania, Department of Transportation v. Paul Cannon, No. 13376 Misc.

COUNSEL

Submitted in briefs by appellant -- no appearance.

Wallace A. Murray, Jr., with him Wisler, Pearlstine, Talone, Craig & Garrity, for appellee.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 4 Pa. Commw. Page 120]

On January 23, 1971, on Interstate 76 in Montgomery County, Paul Cannon (appellee) was apprehended by a State Trooper for operating a motor vehicle while under the influence of intoxicating liquor, a violation of Section 1037 of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1037, and, after being so charged, refused to submit to a breathalyzer test as provided in the so-called "Implied Consent Law," Section 624.1(a) of the Code, 75 P.S. § 624.1(a).*fn1 Having received a report of this refusal from the magistrate and officer involved, the Secretary of Transportation, under Section 624.1(a), suspended appellee's operator's license for six months, effective

[ 4 Pa. Commw. Page 121]

March 29, 1971. In an opinion dated June 8, 1971, after granting a supersedeas on March 26, 1971 (appellee's license was restored March 30, 1971), the Court of Common Pleas of Chester County sustained appellee's appeal and reversed the Secretary's suspension. The Commonwealth has appealed to this court.

To explain the circumstances leading to and surrounding appellee's refusal to submit to the breathalyzer test, we adopt the first nine findings of fact made by the court below:

"1. On January 23, 1971, the appellant was apprehended by Dale F. Bonney, a trooper of the Pennsylvania State Police, after he had been observed traveling westbound on Interstate Route 76, the Schuylkill Expressway, in Montgomery County. During the trooper's observation of the appellant's operation of his automobile he noted that the automobile weaved from side to side upon the highway to such an extent that at times it was partially or completely upon the right-hand berm.

"2. The trooper brought appellant's automobile to a stop at a point one mile east of Ramp 1 at King of Prussia, and upon approaching the car asked him to alight from it. Upon being asked for his operator's and owner's cards the appellant produced them. When he first got out of the car he stumbled a little bit and the officer observed an odor of alcohol upon his breath. When speaking the appellant's speech was slow but not slurred. He said when asked that he had drunk three beers. The officer then asked the appellant to undergo tests of his sobriety to which the appellant agreed. In those tests the appellant had some difficulty in stooping to pick up a card from the ground, and when asked to close his eyes and extend his arms to the side and then to bring them together in front of his face, he was unable to do so.

[ 4 Pa. Commw. Page 122]

"3. From all of this the officer concluded that the appellant was under the influence of intoxicating liquor and placed him under arrest and thereafter asked him to take the test prescribed by the section of The Vehicle Code cited above. The appellant asked what would happen if he wouldn't take the test, whereupon the ...


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