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COMMONWEALTH PENNSYLVANIA v. JOHN WILLIAM KELLEY (01/08/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 8, 1979.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
JOHN WILLIAM KELLEY, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. John William Kelley, No. SA 563 of 1975.

COUNSEL

Harold H. Cramer, Assistant Attorney General, with him Regis J. McCoy, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Howard F. Messer, for appellant.

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

Author: Disalle

[ 39 Pa. Commw. Page 567]

This is an appeal by the Department of Transportation, Bureau of Traffic Safety (Bureau), from the order of the Court of Common Pleas of Allegheny County sustaining the appeal of John William Kelley (Kelley) and thereby reversing the Bureau's suspension of his motor vehicle operator's license pursuant

[ 39 Pa. Commw. Page 568]

    to Section 624.1 of The Vehicle Code,*fn1 for refusing to submit to a breathalyzer test.*fn2

We note initially that our scope of review of a lower court's reversal of a license suspension pursuant to Section 624.1 is limited to whether its findings are supported by competent evidence, errors of law were committed, or the decision constituted a manifest abuse of discretion. Department of Transportation, Bureau of Traffic Safety v. Shultz, 25 Pa. Commonwealth Ct. 598, 360 A.2d 754 (1976).

In the instant case, the court below held that, in a license suspension proceeding, an officer must have probable cause to make an arrest before transporting a person to a police station for a breathalyzer test. Since it concluded that there was insufficient evidence to indicate a valid arrest, Kelley's appeal was sustained. This was incorrect. As stated in Department of Transportation, Bureau of Traffic Safety v. Barrett, 22 Pa. Commonwealth Ct. 559, 561, 349 A.2d 798, 799 (1976), "[c]ertainly, there can be no doubt in the law today that the propriety of the request for a chemical test is not dependent on the legality of the arrest." See also Glass v. Bureau of Traffic Safety, 460 Pa. 362, 333 A.2d 768 (1975).

Consequently, our only inquiry is whether the Bureau's suspension of Kelley's operating privileges was proper. As a condition precedent to the suspension of a motor vehicle operator's license pursuant to Section 624.1, the arresting officer must have had reasonable

[ 39 Pa. Commw. Page 569]

    grounds to believe that Kelley had been driving while under the influence of intoxicating liquor. Department of Transportation, Bureau of Traffic Safety v. Shultz, supra. In this regard, we repeat what was so ably stated by Judge Mencer in Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 26 Pa. Commonwealth Ct. 201, 205, 363 A.2d 870, 872 (1976):

The only valid inquiry on this issue . . . is whether, viewing the facts and circumstances as they appeared at the time, a reasonable person in the position of the police officer could have concluded that the motorist was operating the vehicle and under the influence of intoxicating liquor. Thus, it is not relevant that the motorist later, at the time of trial, can establish a cause other than intoxication for such observed behavior as slurred speech or an unsteady gait. At trial, the only relevant facttual defense would be a showing that the motorist's behavior was not, in fact, as the officer testified. (Footnote omitted.)

Applying this standard to the factual matrix of the present case, only one conclusion is mandated -- that the officer clearly acted upon a reasonable belief that Kelley was operating his vehicle under the influence of intoxicating liquor. The record establishes that when the arresting officer arrived at the scene he observed that Kelley's automobile had struck an iron pole. He then noticed that Kelley exuded an odor of alcohol, that his speech was slurred, that his clothes and hair were in disarray, and that he was staggering. These observations were sufficient as a matter of law to give the officer reasonable grounds to believe Kelley had been driving under the influence of intoxicating liquor. Kelley's explanation of the incident

[ 39 Pa. Commw. Page 570]

    is irrelevant.*fn3 Since the officer proceeded properly, Kelley's refusal to submit to the breathalyzer test subjected him to a license suspension.

Accordingly, the order of the lower court is reversed and Kelley's license suspension is reinstated.

Order

And Now, this 8th day of January, 1979, the order of the Court of Common Pleas, dated November 17, 1975, is reversed, and the suspension of John William Kelley's motor vehicle operator's privilege is reinstated, the suspension to commence 20 days from the date of this order.

Disposition

Reversed. Suspension order reinstated.


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