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THOMAS HANDO v. COMMONWEALTH PENNSYLVANIA (07/19/84)

decided: July 19, 1984.

THOMAS HANDO, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. Thomas Hando, No. 80-00486.

COUNSEL

Marvin H. Gold, for appellant.

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Williams, Jr., Barry and Blatt, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 84 Pa. Commw. Page 65]

This is an appeal by Thomas Hando (appellant) from an order of the Court of Common Pleas of Montgomery County upholding the suspension of appellant's driving privileges by the Department of Transportation (Department) under Section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. ยง 1547(b)(1), for his refusal to submit to a breathalyzer test. We affirm.

At the hearing before the court of common pleas the police officer who charged appellant with driving under the influence testified that when he arrested appellant he asked him to take a breathalyzer test, which appellant refused. A second officer testified he later asked appellant at the station to take a breathalyzer test and warned appellant his operating privileges would be suspended for six months if appellant refused. Appellant testified that he was never taken to the police station in question, but rather to a different station, was never informed that he was placed under arrest for driving under the influence, or warned of the consequences of a failure to take the test.

The court of common pleas found that appellant refused to submit to a breathalyzer test, even after the officers warned appellant that his refusal to take the test would result in a six month suspension of his operating privileges.

In order for a suspension for a refusal to submit to a chemical test of breath or blood to be sustained, the Department must prove that a driver was placed under arrest upon the charge of driving while intoxicated, the officer had reasonable grounds to believe

[ 84 Pa. Commw. Page 66]

    the driver was driving while intoxicated, that the driver was requested to submit to a breathalyzer test and refused and, where the issue is raised, that the officer fulfilled his statutory duty to warn the driver that his operating privileges would be suspended or revoked upon his refusal to submit to a chemical test. Department of Transportation, Bureau of Traffic Safety v. Sinwell, 68 Pa. Commonwealth Ct. 605, 450 A.2d 235 (1982). Anything substantially less than an unqualified unequivocal assent to take a breathalyzer test constitutes a refusal. Department of Transportation, Bureau of Traffic Safety v. Wroblewski, 65 Pa. Commonwealth Ct. 333, 442 A.2d 407 (1982).

Appellant contends that the common pleas judge committed numerous errors which rendered the suspension hearing unfair, that the judge had shown a predisposition to favor the Department and had prejudged the appellant and that the suspension was brought by the Department solely in retaliation for appellant's contesting the criminal charge of driving under the influence and being acquitted. In cases where the court of common pleas is the fact finder, our scope of review is limited to whether or not the court based its findings of fact on substantial evidence or committed an error of law. Department of Transportation, Bureau of Traffic Safety v. Stafford, 28 Pa. Commonwealth Ct. 157, 159, 367 A.2d 816, 817 (1977). Questions of credibility and the resolution of testimonial conflicts are for the common pleas court. Department of Transportation, Bureau of Traffic Safety v. Fullerton, 31 Pa. Commonwealth Ct. 609, 612, 377 A.2d 1024, 1025 (1977).

Appellant argues that the common pleas judge committed reversible error when he failed to make further inquiries regarding a subpoena allegedly issued by appellant and not honored by the ...


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