Appeal from the Order of the Court of Common Pleas of Fayette County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Daniel R. Tantlinger, No. 374 December Term, 1975.
John L. Heaton, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Charles C. Gentile, for appellee.
Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 29 Pa. Commw. Page 537]
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Fayette County made after hearing de novo, reversing the Department of Transportation's six-month suspension of Daniel Tantlinger's operator's license for failure to submit to a breathalizer test as required under Section 624.1(a) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 624.1(a).
Section 624.1 provides in pertinent part:
[ 29 Pa. Commw. Page 538]
(a) Any person who operates a motor vehicle or tractor in this Commonwealth, shall be deemed to have given his consent to a chemical test of his breath, for the purpose of determining the alcoholic content of his blood: Provided, That the test is administered by qualified personnel and with equipment approved by the secretary at the direction of a police officer having reasonable grounds to believe the person to have been driving while under the influence of intoxicating liquor. . . . If any person is placed under arrest and charged with the operation of a motor vehicle or tractor while under the influence of intoxicating liquor and is thereafter requested to submit to a chemical test and refuses Page 538} to do so, the test shall not be given but the secretary may suspend his license or permit to operate a motor vehicle or tractor with or without a hearing. . . . (Emphasis added.)
This Court has frequently held that in order to sustain a suspension under Section 624.1, the Commonwealth must prove that the defendant was (1) placed under arrest upon the charge of driving while intoxicated; (2) was requested to submit to a breathalizer test; and (3) refused to do so. See for example, Bureau of Traffic Safety v. Kelly, 18 Pa. Commonwealth Ct. 490, 493, 335 A.2d 882, 884 (1975). The presence or absence of any of the above elements is a factual determination, not a legal one. Commonwealth v. Miles, 8 Pa. Commonwealth Ct. 544, 550, 304 A.2d 704 (1973). The Commonwealth's burden of proving the third element is therefore satisfied when it establishes that an objective refusal occurred. Thereafter, the burden is upon the defendant to prove by competent evidence that he was physically unable to take the test. Bureau of Traffic Safety v. Kelly, supra.
Mr. Tantlinger, while driving his automobile alone at about 1:20 o'clock A.M. on December 27, 1974, lost control of his vehicle, which overturned in the public road. The police officer who investigated found a partially consumed pint of whiskey at the scene and noticed the smell of alcoholic drink on Mr. Tantlinger's person. The officer went to the hospital to which Mr. Tantlinger was taken and there asked Mr. Tantlinger to take a breathalizer test. Mr. Tantlinger consented to take the test and the police officer sent for the breathalizer apparatus. At this point in the history the evidence becomes conflicting. The police officer testified that when the apparatus arrived Mr. Tantlinger refused to take the test. A magistrate, whom the police officer later called to the scene, testified that Mr. Tantlinger refused to take the test in his,
[ 29 Pa. Commw. Page 539]
the magistrate's presence. Mr. Tantlinger's brother testified for Mr. Tantlinger that he, the brother, told the police officer at the hospital that he did not want his brother to take the breathalizer test until he had received medical treatment. Mr. Tantlinger testified ...