Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. William James Sinwell, Jr., No. SA 388 of 1979.
Francis P. Bach, Assistant Counsel, with him Harold H. Cramer, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Susan J. Pearlstein, for appellee.
Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.
[ 68 Pa. Commw. Page 606]
The Pennsylvania Department of Transportation's Bureau of Traffic Safety (Bureau) appeals here from an order of the Court of Common Pleas of Allegheny County which sustained an appeal from a Bureau order suspending the motor vehicle operating privileges of William James Sinwell, Jr. for a period of six months, pursuant to the provisions of Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b), because of his refusal to submit to a breathalyzer test. We reverse.
It is well settled that to establish a prima facie case in support of a Section 1547(b) suspension
[ 68 Pa. Commw. Page 607]
the Commonwealth must prove the following:
(1) that the defendant was placed under arrest upon the charge of driving while intoxicated, and the arresting officer had reasonable grounds to believe the defendant was driving while intoxicated; (2) that he was requested to submit to a breathalyzer test; and (3) he refused to do so.
Herring v. Commonwealth, 50 Pa. Commonwealth Ct. 608, 611-12, 413 A.2d 1171, 1173-74 (1980); Department of Transportation, Bureau of Traffic Safety v. Hanes, 49 Pa. Commonwealth Ct. 407, 411 A.2d 571 (1980). Where the issue is raised, the Commonwealth must also establish that it fulfilled its duty under Section 1547(b)(2) of the Code, 75 Pa. C.S. § 1547(b)(2), of warning a driver "that [his or her] operating privileges will be suspended or revoked upon refusal to submit to a chemical test."
Here, the record shows that at the suspension hearing before the court of common pleas the Bureau submitted evidence, in the form of a signed affidavit and the testimony of the arresting police officer, which indicated (1) that Mr. Sinwell had been arrested on March 8, 1979, for driving under the influence of alcohol after his car had been observed weaving back and forth across the road, (2) that Mr. Sinwell had been asked to submit to a breathalyzer test following his arrest, (3) that he was warned that a failure to submit to the test would result in a suspension or revocation of his license, and (4) that he had nonetheless refused to take the test. Upon the completion of the Bureau's case, however, and before Mr. Sinwell could present his case, the court directed several of ...