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CHARLES A. STITZER v. COMMONWEALTH PENNSYLVANIA (03/04/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 4, 1981.

CHARLES A. STITZER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Commonwealth of Pennsylvania v. Charles A. Stitzer, No. 3865 S 1979.

COUNSEL

Anthony S. Federico, Jr., for appellant.

Harold H. Cramer, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, Transportation, and Harvey Bartle, III, Attorney General, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 57 Pa. Commw. Page 297]

Charles A. Stitzer (appellant) has appealed from the suspension of his privilege of operating a motor vehicle for refusal to take a breath test. We affirm.

The appellant was arrested by Officer McPherson of the Pennbrook Police Department (arresting officer) for driving under the influence of alcohol. The arresting officer requested that the appellant take a breath test, but he refused. As a result, his operating privilege was suspended for 6 months, pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. ยง 1547(b). His appeal to the Court of Common Pleas of Dauphin County was denied.

On this appeal, the appellant raises two issues. First, he contends that the court below erred in ruling that the arresting officer had reasonable grounds to believe the appellant had been driving under the influence of alcohol. Second, he contends that his refusal to take the test was reasonable and justified. Neither of these contentions has merit. "A lower court's decision in [this type of case] is not to be disturbed unless its findings were not supported by competent evidence or it made erroneous conclusions of law or its decision exhibits a manifest abuse of discretion." McMahon v. Commonwealth, 39 Pa. Commonwealth Ct. 260, 263, 395 A.2d 318, 320 (1978).*fn1

The appellant argues that the lower court's conclusion that the arresting officer had reasonable grounds to believe the appellant was driving under the influence of alcohol was not supported by competent evidence. We disagree. Our review of the record indicates that the conclusion of the court below was well

[ 57 Pa. Commw. Page 298]

    supported by the arresting officer's testimony.*fn2 Therefore, we cannot reverse on this issue.

The second contention of the appellant is equally meritless. He claims that his refusal to take the test was justified and reasonable because the arresting officer had "tricked" him into driving the wrong way

[ 57 Pa. Commw. Page 299]

    on a one-way street, so he wished to contact an attorney before submitting to the test.

In Weitzel Appeal, 41 Pa. Commonwealth Ct. 235, 400 A.2d 646 (1979), we held that a licensee has no right to call an attorney before deciding whether to submit to a breath test. In addition, Section 1547 of the Vehicle Code makes no provision for a licensee to raise the defense of reasonableness or justification in a suspension proceeding for refusal to take a breath test. Here, the appellant was arrested by an officer who had reasonable grounds to believe that he was driving under the influence of alcohol. He was requested to submit to a breath test, but he refused. On these facts alone, the Department of Transportation was required to suspend his operating privilege pursuant to Section 1547(b) regardless of his motivation for refusing to take the test.

Order affirmed.

Order

And Now, this 4th day of March, 1981, the order of the Court of Common Pleas of Dauphin County, dated October 4, 1979, which denied the appeal of Charles A. Stitzer and reinstated the suspension of his operating privilege is hereby affirmed.

Disposition

Affirmed.


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