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COMMONWEALTH PENNSYLVANIA v. JAY J. FULLERTON (09/15/77)

decided: September 15, 1977.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY
v.
JAY J. FULLERTON, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Jay J. Fullerton, No. SA 465 of 1966.

COUNSEL

Matthew Verlich, and Stokes, Lurie & Tracey, for appellant.

John L. Heaton, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer and Blatt, sitting as a panel of three. Judge Kramer did not participate in the decision. Opinion by Judge Blatt. Judge Kramer did not participate in the decision in this case. See Pa. R.a.p. 3102(d).

Author: Blatt

[ 31 Pa. Commw. Page 610]

This is an appeal by Jay J. Fullerton (Fullerton) from a decision dated September 15, 1976, of the Court of Common Pleas of Allegheny County, sustaining the suspension of Fullerton's operator's license by the Commonwealth of Pennsylvania, Department of Transportation under Section 624.1(a) of the former Motor Vehicle Code (Code),*fn1 formerly 75 P.S. § 624.1(a), for refusing to submit to a breathalyzer test.

[ 31 Pa. Commw. Page 611]

On January 6, 1976, at about 4:25 A.M., Fullerton while operating his vehicle in an erratic fashion on Route 19, Ross Township, Allegheny County, was stopped by two officers of that Township. The officers noted a strong odor of alcohol emanating from the defendant's person and also noted the presence of intoxicating beverages in Fullerton's automobile.

Defendant, upon his departure from the vehicle, was asked to take a finger-to-nose sobriety test, which he failed. The officers then placed Fullerton under arrest for driving while under the influence of intoxicating liquor and they then advised him of his constitutional rights. Fullerton was transported back to the police station where he was asked to take a breathalyzer or blood test. He assented to the former.

One of the arresting officers instructed Fullerton to blow into the breathalyzer machine and Fullerton complied. However, the machine was set on "analyze" and not on "test" and the machine, therefore, failed to record because of the incorrect setting. At this juncture there was a disparity in the testimony before the lower court as to what then occurred.

The police officer stated that after the "mistest" he explained to Fullerton that the machine had been placed on the wrong setting. The officer again requested Fullerton to blow into the machine after the officer had corrected the setting. Fullerton did not accede to the officer's second request. Fullerton denied this version of what had transpired. He claimed that he attempted to blow into the machine four or five times. Fullerton testified that he did not blow into the machine after the fourth or fifth attempt because the officers were laughing at him. He claimed that no one explained to him that the machine originally was placed on an improper setting. The lower court found that the testimony of the officers was credible and that

[ 31 Pa. Commw. Page 612]

    the testimony of Fullerton was not credible. Questions of credibility and the resolution of testimonial conflicts are for the lower court. Campbell v. Department of ...


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