Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. James Louis Phillips, No. 82-6626.
Wallace A. Murray, Wisler, Pearlstine, Talone, Craig & Garrity, for appellant.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 84 Pa. Commw. Page 218]
James Louis Phillips (Appellant) appeals here from an order of the Court of Common Pleas of Montgomery County (trial court) affirming the suspension of Appellant's motor vehicle operator's license pursuant to Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b), for his refusal to submit to a breathalyzer test. We affirm.
On January 31, 1982, Officers George DePetrillo and Gary J. Penna of the Norristown Police Department responded to a report of an altercation at a local tavern. According to the testimony of the two officers adduced before the trial court, Appellant was found sitting inside his automobile while an injured person was sitting on the hood. When Officer Penna reached into Appellant's automobile to turn off the ignition, Appellant drove off injuring Officer Penna. Officer DePetrillo then pursued Appellant to the local hospital where Appellant was admitted and treated for a severed finger incurred during the altercation at the tavern. Officer DePetrillo testified that while at the hospital he informed Appellant that he was under arrest and requested three times that he submit
[ 84 Pa. Commw. Page 219]
to a chemical test of his breath. Appellant denied each request. Appellant also refused the officer's request that he submit to a blood test to be administered by hospital personnel. According to Officer DePetrillo Appellant was informed that a refusal to submit to these tests would result in a revocation or suspension of his license.
Thereafter, the Department of Transportation (Department) notified Appellant that his motor vehicle operating privileges were being suspended for a period of six months for refusing to take a breathalyzer test. From that suspension Appellant appealed to the trial court. Following a hearing de novo, the trial court entered an order dismissing the appeal and affirming the suspension. This appeal followed.*fn1
It is well settled that an operator's driving privileges may be suspended for refusal to submit to a breathalyzer test where the driver involved (1) was placed under arrest for driving while 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; (3) refused to do so; and (4) was warned that his license will be revoked if he refuses to take the test. Everhart v. Commonwealth, 54 Pa. Commonwealth Ct. 22, 420 A.2d 13 (1980). The burden of proof is on the Department to prove each of these elements. Pratt v. Department of Transportation, Bureau of Traffic Safety, 62 Pa. Commonwealth Ct. 55, 434 A.2d 918 (1981). Once the Department has proven the above elements, the burden then shifts to the driver to prove that he was physically incapable
[ 84 Pa. Commw. Page 220]
of making a knowing and conscious refusal to take the test. Capozzoli Appeal, 63 Pa. Commonwealth ...