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RUSSELL L. GRESH v. COMMONWEALTH PENNSYLVANIA (08/22/83)

decided: August 22, 1983.

RUSSELL L. GRESH, JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Commonwealth of Pennsylvania v. Russell L. Gresh, Jr., No. 80-16362.

COUNSEL

Douglas B. Breidenbach, Jr., Binder, Kalis, Proctor & Breidenbach, for appellant.

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

President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 76 Pa. Commw. Page 484]

Appellant Russell L. Gresh, Jr. has appealed to this Court from an order of the Court of Common Pleas of Montgomery County, dated February 4, 1981. The court's order upheld the Department of Transportation's (Department) suspension of appellant's motor vehicle operator's license for his refusal to submit to a breathalyzer test.

At approximately 1:00 A.M. on July 25, 1980, Patrolman Robert Auch of the Lower Pottsgrove Township Police Department received a call to investigate an automobile accident. Upon arrival at the accident scene, the officer found appellant Gresh leaning against his damaged automobile, which had struck another vehicle. Patrolman Auch observed that the appellant had difficulty standing and used his car to maintain his balance. In addition, he noted that there was an odor of alcohol about appellant's person, and that when asked to produce his driver's license, the appellant had trouble locating it. Based upon these observations, the officer asked Gresh to accompany him to the Pottstown police station to take a

[ 76 Pa. Commw. Page 485]

    breathalyzer test, but the appellant refused and became verbally abusive.

Sergeant Richard C. Lengel, Patrolman Auch's supervising officer, was also present at the accident scene. After the appellant refused to submit to a chemical test of breath as requested by the patrolman, Sergeant Lengel reiterated the request and advised Gresh that his driver's license would be suspended if he failed to comply. The appellant again refused, emphasizing that he would not take the test and stating that he wanted to go home. In light of these refusals and the fact that the appellant's automobile was inoperable, Patrolman Auch transportated Gresh to his residence in a police vehicle.*fn1

On August 19, 1980, the Department notified appellant that his motor vehicle operating privileges were being suspended for a period of six (6) months, pursuant to Section 1547(b)(1) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b)(1), for refusal to take a breathalyzer test. From that suspension Gresh appealed to the Court of Common Pleas of Montgomery County. Following a hearing de novo, that court entered an order dismissing the appeal and affirming the suspension. It is an appeal from that order which is now before this court.

[ 76 Pa. Commw. Page 486]

It is well established that in order for a license suspension for refusal to submit to a chemical test of breath to be sustained, the Department must prove that the driver involved: (1) was placed under arrest for driving under the influence of alcohol, and that the arresting officer had reasonable grounds to believe the operator was driving while intoxicated; (2) was asked to submit to a breathalyzer test; and (3) refused to do so. Herring v. Commonwealth, 50 Pa. Commonwealth Ct. 608, 413 A.2d 1171 (1980). In addition, where the issue is raised the Department 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 the driver that his or her operating privileges will be suspended upon refusal to take a breathalyzer test. Department of Transportation, Bureau of Traffic Safety v. Sinwell, 68 Pa. Commonwealth Ct. 605, 450 A.2d 235 (1982). With respect to these criteria, the appellant in the instant matter ...


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