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JOSEPH EWING v. COMMONWEALTH PENNSYLVANIA (12/21/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 21, 1978.

JOSEPH EWING, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Joseph Ewing, No. SA 626 of 1977.

COUNSEL

William E. Stockey, with him Lewis & Stockey, for appellant.

John Kennedy, Deputy Attorney General, with him Bradley L. Mallory, Assistant Attorney General, Harold H. Cramer, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Gerald Gornish, Acting Attorney General, for appellee.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 39 Pa. Commw. Page 388]

Appellant's motor vehicle operator's license was suspended by the Secretary of Transportation for six months, pursuant to Section 624.1(a) of The Vehicle Code*fn1 for refusal to take a breathalyzer test. The Court of Common Pleas of Allegheny County dismissed an appeal of that suspension and the present appeal followed. We affirm the suspension.

The lower court correctly held that a license suspension is justified by anything short of an unequivocal acceptance of a request to take the breathalyzer test. Dep't of Transportation, Bureau of Traffic Safety v. Drugotch, 9 Pa. Commonwealth Ct. 460, 308 A.2d 183 (1973).

The issue raised in this case is whether the officers administering the breathalyzer test did in fact make a sufficient request of appellant so that appellant's actions in fact constituted a refusal.

[ 39 Pa. Commw. Page 389]

In an appeal arising from a suspension of a motor vehicle driver's license, the action of the lower court will not be disturbed unless its findings are not supported by competent evidence or the lower court made erroneous conclusions of law, or its decision exhibits a manifest abuse of discretion. Dep't of Transportation, Bureau of Traffic Safety v. Drugotch, supra, at 461, 308 A.2d at 184.

After carefully reviewing the record below, we hold that the court's findings, that there was a request to take the test and a refusal to do so, were supported by competent and substantial evidence.

Order

And Now, this 21st day of December, 1978, the order of the Common Pleas Court at No. SA 626, January 17, 1978 affirming the Bureau of Traffic and Safety, Department of Transportation's suspension of appellant's operator license is affirmed.

Disposition

Affirmed.


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