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JAMES G. WHITE v. COMMONWEALTH PENNSYLVANIA (05/04/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 4, 1981.

JAMES G. WHITE, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Berks County in the case of Commonwealth of Pennsylvania v. James G. White, No. 94 February Term, 1980.

COUNSEL

Frederick O. Brubaker, for appellant.

Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, Transportation, and Jay C. Waldman, General Counsel, for appellee.

Judges Rogers, Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 59 Pa. Commw. Page 156]

James G. White appeals from an order of the Secretary of Transportation suspending his motor vehicle operating privileges for six months because of

[ 59 Pa. Commw. Page 157]

    his refusal to submit to a breathalyzer test;*fn1 the Court of Common Pleas of Berks County upheld the order on appeal, but granted a supersedeas pending our decision of the case.

The events leading to appellant's arrest on November 26, 1979 for driving under the influence began when an off-duty police officer observed a green pickup truck driving across his mother-in-law's lawn in Chester County. After notifying the State Police, the officer and his brother-in-law gave chase; they found the truck parked in a driveway three miles down the road. The record indicates that the pursuers did not actually see the appellant driving the vehicle; as they pulled up behind the parked truck, appellant was standing on the porch of the house.

When the arresting officer, a state trooper, arrived shortly thereafter, appellant was leaning against the truck; the trooper testified that he smelled alcohol on appellant's breath, that appellant's eyes were bloodshot and glassy and he was unable to stand on his own. When asked to estimate the time, appellant replied that it was approximately 4:30 in the morning when, in fact, it was 8:00 in the evening. The trooper also observed the appellant get down on his hands and knees, pull up handfuls of grass, and put them in his mouth.*fn2

The trooper placed appellant under arrest, took him to the police barracks and prepared to administer the breathalyzer test. Despite the trooper's warning that refusal to submit to the test would result in a six-month license suspension, appellant would not take the test.

[ 59 Pa. Commw. Page 158]

Appellant appealed the suspension of his license to the court below, contending that the arresting officer did not have reasonable grounds to believe that he was driving under the influence, and that he had not refused to submit to the breath test.

At that hearing, the Commonwealth called the appellant to the stand to ask if he had been driving the truck at 8:00 p.m. on November 26, 1979. The appellant refused to reply, claiming the privilege against self-incrimination.

Two weeks before the hearing, the criminal charge of driving under the influence had been dismissed when the jury failed to reach a verdict.

Citing that dismissal, the judge ordered appellant to answer the question, statting:

Inasmuch as all the criminal charges have been disposed of and you cannot be charged with any of these events again, you must answer.

Appellant then admitted that he had been driving the vehicle, which was registered in the name of Riverside Auto Sales.

The court dismissed the license suspension appeal, concluding that the trooper had probable cause to believe the appellant had been driving while intoxicated.

Appellant now asks us to sustain his appeal from the license suspension because the court erred in compelling him to testify against himself after he claimed the privilege against self-incrimination.

In order to justify the suspension of a motorist's operating privilege for refusal to submit to a breathalyzer test, it is necessary for the arresting officer to have "reasonable grounds" to believe the person charged with the violation had been driving while intoxicated. 75 Pa. C.S. ยง 1537(b)(1), Bureau of Traffic Safety v. Schultz, 25 Pa. Commonwealth Ct. 598, 360 A.2d 754 (1976). If a reasonable person in the position

[ 59 Pa. Commw. Page 159]

    of the trooper, viewing the facts and circumstances as they appeared at the trial, could have concluded that the motorist had operated the vehicle while under the influence of alcohol, such reasonable grounds are established. Bruno v. Commonwealth of Pennsylvania, Department of Transportation, 54 Pa. Commonwealth Ct. 353, 422 A.2d 217 (1980). We note that an officer's reasonable belief is not rendered ineffective even if later discovery might disclose that the motorist was not in fact driving. Bureau of Traffic Safety v. Dreisbach, 26 Pa. Commonwealth Ct. 201, 363 A.2d 870 (1976).

In Haklits v. Commonwealth, 44 Pa. Commonwealth Ct. 198, 418 A.2d 772 (1979), the arresting officer found the appellant standing on the sidewalk near a car matching a dispatched description of a vehicle involved in a hit and run accident. Judge (now Justice) Wilkinson, in holding that the officer had reasonable grounds to believe that person had been driving the car, stated: "it is not necessary that any witness see the appellant operating the vehicle." Id. at 200, 418 A.2d at 773. See also Dreisbach, supra; Wilson v. Commonwealth, 53 Pa. Commonwealth Ct. 343, 417 A.2d 867 (1980).

Our review*fn3 of the record supports the court's conclusion that the trooper had reasonable grounds to believe that appellant was the driver of the truck and that he was doing so while intoxicated. The circumstances surrounding the arrest and the events culminating in it would clearly lead a reasonable person to

[ 59 Pa. Commw. Page 160]

    believe that the appellant had been driving the truck. This conclusion is further supported by the trooper's testimony that, when he arrived on the scene, the off-duty policeman told him that the appellant was the driver of the truck.*fn4

Because the Commonwealth met its burden of proving the requisite elements for a Section 1547 license suspension,*fn5 appellant's refusal to submit to the test justified the six-month loss of privilege.

Accordingly, finding no error below,*fn6 we affirm.

[ 59 Pa. Commw. Page 161]

Order

Now, May 4, 1981, the order of the Court of Common Pleas of Berks County, No. 94 February, 1980, dated March 24, 1980, dismissing appellant's appeal, is affirmed.

Disposition

Affirmed.


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