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JOHN A. FORD v. COMMONWEALTH PENNSYLVANIA (08/29/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 29, 1979.

JOHN A. FORD, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DIRECTOR OF BUREAU OF TRAFFIC SAFETY, APPELLEE

Appeal from the Order of the Court of Common Pleas of Northampton County in case of John A. Ford v. Director of Bureau of Traffic Safety, Department of Transportation, No. 61 January Term, 1978.

COUNSEL

Mark S. Refowich and Joel M. Scheer, for appellant.

Harold H. Cramer, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for appellee.

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

Author: Mencer

[ 45 Pa. Commw. Page 269]

The Court of Common Pleas of Northampton County, after a hearing de novo, sustained the suspension of John Ford's driver's license for six months for his failure to submit to a breathalyzer test as required under Section 1547 of the Vehicle Code, 75 Pa. C.S. ยง 1547, and dismissed his appeal. Ford appealed to this Court. We affirm.

After the Commonwealth has proven that a defendant did in fact refuse to submit to a breathalyzer test, the burden shifts to the defendant to prove by competent evidence that he was physically unable to take the test or incapable of a conscious and knowing refusal. Department of Transportation v. Bailey, 36 Pa. Commonwealth Ct. 643,

[ 45 Pa. Commw. Page 270388]

A.2d 1133 (1978). The issue on appeal is whether the lower court erred in concluding that Ford failed to meet his burden.

The only evidence that Ford was unable to make a conscious and knowing refusal is his own testimony that he was extremely drowsy because of a combination of medicine, fatigue, and alcohol and had no recollection of being asked to submit to a breathalyzer test. Two police officers testified that Ford appeared to be extremely intoxicated but that at times he seemed cooperative and alert. Moreover, they testified that the breathalyzer test was explained to Ford at least five times.

The trial judge concluded that Ford's testimony was of doubtful validity, without corroborating medical testimony, and therefore held that he had failed to sustain his burden of proof.

Although we do not hold that corroborating medical testimony is required in all cases, based upon the record in this case, we are unable to say that the lower court, as factfinder and arbiter of credibility, capriciously disregarded competent evidence in reaching its decision.

Ford also argues that, after he was read the Miranda*fn1 warning and counseled on his right to remain silent, he was unable to decide effectively whether or not he was required to take the breathalyzer test. The record, however, does not support his contention that this was a reason for refusing the test. Even if it were a reason, claimant would not be released from the effects of his refusal because he was specifically warned of the consequences. See Boyle v. Department of Transportation, Bureau of Traffic Safety, 19 Pa. Commonwealth Ct. 22, 339 A.2d 834 (1975).

Therefore, we enter the following

[ 45 Pa. Commw. Page 271]

Order

And Now, this 29th day of August, 1979, the order of the Court of Common Pleas of Northampton County, dated May 31, 1978, dismissing the appeal of John A. Ford and directing the Secretary of Transportation to reinstate the six-month suspension of John A. Ford's operator's license, is affirmed.

Disposition

Affirmed.


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