Appeal from the Order of the Court of Common Pleas of Dauphin County in the case of Commonwealth of Pennsylvania v. Joseph T. Mumma, No. 2315 S 1982.
Lawrence R. Wieder, Assistant Counsel, with him Harold H. Cramer, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
William H. Naugle, Naugle and Sullivan, for appellee.
Judges Williams, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.
[ 79 Pa. Commw. Page 109]
The Pennsylvania Department of Transportation, Bureau of Traffic Safety (DOT) appeals from an order of the Dauphin County Court of Common Pleas reversing DOT's suspension of Joseph T. Mumma's drivers's license.
The question is whether the trial court erred in determining that Mumma's action in smoking a cigarette, despite several warnings not to do so, did not constitute a refusal to take the breathalyzer test.*fn1
[ 79 Pa. Commw. Page 110]
Whether or not there has been a refusal by a motorist to submit to a breathalyzer test is a factual, not a legal, determination. Department of Transportation, Page 110} Bureau of Traffic Safety v. Pedick, 44 Pa. Commonwealth Ct. 44, 403 A.2d 181 (1979). The events in this case are not in dispute.
On May 14, 1982, Officer Fry of the Lower Swatara Township Police Department observed Mumma driving recklessly, and pulled him over. After Mumma performed poorly on several field sobriety tests, Officer Fry transported him to the Capital Campus Police Station to administer a breathalyzer test. Fry testified that he and another officer warned Mumma four times not to smoke because it would interfere with the breathalyzer and be considered a refusal to submit to the test, resulting in an automatic six-month suspension of his driver's license. Nevertheless, Mumma did light up a cigarette. Officer Fry said "That's it" and shut the machine off. The officers would have been required to wait twenty minutes before again attempting to administer the test; they chose not to, and instead transported Mumma home and advised him that he would receive a summons.
DOT notified Mumma that his license was suspended for six months based on his refusal to submit to the breathalyzer test in violation of § 1547 of the Pennsylvania Vehicle Code, 75 Pa. C.S. § 1547. Mumma appealed the suspension to the Dauphin County Court of Common Pleas. The court reversed the suspension, finding that the Commonwealth had failed to meet its burden of establishing a refusal to take the breathalyzer test.*fn2 This appeal followed.
[ 79 Pa. Commw. Page 111]
Section 1547(b)(1) of The Vehicle Code, as in effect on May 14, 1982, ...