Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Gary Allen Michalec, No. 468 of 1978.
Harold H. Cramer, Assistant Attorney General, with him Michael R. Deckman, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General and Edward G. Biester, Jr., Attorney General, for appellant.
No appearance for appellee.
Judges Wilkinson, Jr., Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.
This is an appeal by the Pennsylvania Department of Transportation (Department) from an order of the Court of Common Pleas of Allegheny County sustaining the appeal of Gary Allen Michalec from the suspension of his motor vehicle operating privileges. The Department had suspended Michalec's license for his refusal to submit to a test to determine the alcoholic content of his blood.*fn1
Michalec, the instant appellee, was involved in a two-car accident on July 17, 1977. The investigating police officer detected the odor of alcohol on Michalec; but because the appellee had injuries from the accident he was taken to a hospital. At the hospital Michalec was placed under arrest for driving under the influence
of alcohol and given the Miranda warnings. Because there was no breathalyzer at the hospital, the police officer requested Michalec to take a blood test to determine its alcoholic content. Michalec refused. According to the officer he four times told the appellee that he would lose his license, for refusing to take the test.
The lower court heard the matter de novo ; and there is no dispute that the Commonwealth presented sufficient prima facie proof of the legal elements required to sustain the suspension. Therefore, Michalec had the burden of proving that he was physically incapable of making a knowing and conscious refusal. Department of Transportation, Bureau of Traffic Safety v. Kelly, 18 Pa. Commonwealth Ct. 490, 335 A.2d 882 (1975). The lower court found that because of Michalec's injuries his refusal was not knowing and conscious, and sustained his appeal. It is our conclusion that this finding was not supported by competent evidence; and we reverse.
This is not a case where the motorist suffered from any obvious inability to comply with the officer's request. Therefore, a finding that Michalec was physically unable to make a knowing and conscious refusal had to be supported by competent medical evidence to that effect. Department of Transportation, Bureau of Traffic Safety v. Kelly, supra; Commonwealth v. Passarella, 7 Pa. Commonwealth Ct. 584, 300 A.2d 844 (1973). The appellee presented no such evidence below. In fact, the appellee was the only witness in his behalf. What is more telling, is that Michalec testified that he refused to take the test because he did not want to submit to anything in the absence of an attorney.
One of the few bases upon which we can disturb a lower court's decision in this type of license suspension case is where the findings are not supported by competent evidence. ...