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EVELINE SCHNITZER v. COMMONWEALTH PENNSYLVANIA (08/31/84)

decided: August 31, 1984.

EVELINE SCHNITZER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Commonwealth of Pennsylvania v. Eveline Schnitzer, No. 83-346.

COUNSEL

Mark D. Turetsky, for appellant.

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

Judges MacPhail, Colins and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 85 Pa. Commw. Page 39]

Eveline H. Schnitzer (Appellant) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) which affirmed the six-month suspension of her motor vehicle operator's license pursuant to Section 1547(b) of the Vehicle Code (Code)*fn1 for her refusal to submit to a breathalyzer test. We affirm.

The trial court found (1) that Appellant had been involved in a one car accident on November 24, 1982; (2) that the police officers at the scene of the accident noticed the smell of alcohol on Appellant's breath and administered a field sobriety test, which she could not perform; (3) that the police officers asked Appellant to take a breathalyzer test; and (4) that Appellant twice refused to take the test even after she was warned that her license would be suspended if she refused. The trial court dismissed the appeal and reinstated the six-month suspension.

We must determine whether, in conducting the de novo hearing, the trial court abused its discretion by

[ 85 Pa. Commw. Page 40]

    refusing to hear testimony offered by Appellant, from her husband and her employer, and by limiting Appellant's testimony to certain subjects.*fn2

The general rule is that "questions concerned with the admission or exclusion of evidence are within the sound discretion of the trial court and will be reversed on appeal only where a clear abuse of discretion exists." Lewis v. Mellor, 259 Pa. Superior Ct. 509, 515, 393 A.2d 941, 944 (1978) (quoting Westerman v. Stout, 232 Pa. Superior Ct. 195, 202, 335 A.2d 741, 745 (1975)). The issues which were before the trial court in this de novo hearing were (1) whether the arresting officer had reasonable grounds to believe Appellant was driving while intoxicated; (2) whether Appellant was asked to submit to a breathalyzer test; (3) whether Appellant was warned that her license would be revoked if she refused to take the test; (4) whether appellant refused to take the breathalyzer test; and (5) whether Appellant was incapable of making a knowing and conscious refusal to take the test.*fn3 Phillips v. Commonwealth of Pennsylvania, 84 Pa. Commonwealth Ct. 217, 478 A.2d 958 (1984). The trial court had the power to exclude any testimony which was not relevant to these issues.

At the hearing, Appellant offered the testimony of her husband and her employer ...


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