Appeal from the Order of the Court of Common Pleas of Somerset County in case of Commonwealth v. George Andrew Krishak, No. 458 Civil, 1982.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
No appearance for appellee.
Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.
[ 91 Pa. Commw. Page 309]
This is an appeal by the Pennsylvania Department of Transportation (DOT) from an order of the Court of Common Pleas of Somerset County directing that DOT reinstate the operating privileges of George Andrew Krishak (Appellee). DOT had suspended Appellee's operating privileges for six months after receiving a police affidavit indicating that Appellee had refused to submit to a breathalyzer test pursuant to Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547.
The trial court found that Appellee was involved in a one car accident at approximately 12:30 a.m. on August 14, 1982. Appellee's injuries required that he be transported to the hospital by ambulance. The investigating officer, subsequent to his on-scene investigation, arrived at the hospital at approximately 2:00 a.m. and continually attempted to question Appellee who was lying in a bed in the emergency ward with a large cut on the bridge of his nose and was "hooked up to some type of machine." Against the advice of hospital personnel Appellee signed out of the hospital at approximately 3:15 a.m. At the time Appellee signed out, as well as several times earlier, the arresting officer had requested that Appellee take a breathalyzer test. Appellee's original response to the request had been "I don't know." Upon leaving the hospital, however, Appellee agreed to take the test. But when Appellee's father learned that administering the test would require that Appellee be transported to a locale approximately four to five miles away Appellee's
[ 91 Pa. Commw. Page 310]
father stated that he refused to transport Appellee anywhere but home. The trial court found that the arresting officer did not offer to provide Appellee with transportation to the testing locale. Additionally, the father's testimony reveals that while he was never actually asked to transport Appellee to the testing site, he inferred that he was expected to do so. On appeal we must decide first whether the trial court erred in finding that Appellee was not arrested and second whether the trial court erred in finding that Appellee never refused to take the breathalyzer test.*fn1
Our scope of review where the lower court has reversed a license suspension for failure to submit to a breathalyzer test is limited to determining whether the lower court's findings were supported by competent evidence, and whether it committed an error of law or manifestly abused its discretion. Department of Transportation, Bureau of Traffic Safety v. Dauer, 52 Pa. Commonwealth Ct. 571, 416 A.2d 113 (1980).
To sustain its burden under Section 1547 the Commonwealth must demonstrate (1) that the licensee was placed under arrest (2) that the licensee was requested to submit to a breathalyzer test (3) that he or she refused to do so and (4) that the licensee was warned that failure to submit would result in revocation of the licensee's operating privileges. Everhart v. Commonwealth, 54 Pa. Commonwealth Ct. 22, 420 A.2d 13 (1980). Only points one and three are at issue here. Whether a driver has been placed under arrest for purposes of suspension of an operator's license for refusal
[ 91 Pa. Commw. Page 311]
to submit to a breathalyzer test is a question of fact and all that is necessary is that the licensee be under the custody and control of the arresting officer; no formal declaration of arrest is required. Phillips v. Commonwealth, 84 Pa. Commonwealth Ct. 217, 478 A.2d 958 (1984). Stated another way, the arrest requires only that there be a physical restraint on the arrestee's freedom. Corry v. Commonwealth, 59 Pa. Commonwealth Ct. 324, 429 A.2d 1229 (1981). Here, the only finding that the trial court made was that the arresting officer was not certain whether he actually placed Appellee under arrest. The arresting officer informed Appellee "Mr. Krishak, you're not going ...