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decided: November 27, 1985.


Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. Charles Zubik, Jr., No. SA 797 of 1982.


Kim William Riester, for appellant.

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

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 93 Pa. Commw. Page 222]

Charles Zubik, Jr. (appellant) appeals from an order of the Court of Common Pleas of Allegheny County*fn1 dismissing his appeal from the Department of

[ 93 Pa. Commw. Page 223]

Transportation's (DOT) six-month suspension of his motor vehicle operator's license for refusal to submit to a breathalyzer test as required under Section 1547(b)(1) of the Vehicle Code.*fn2

DOT's burden of proof at the Common Pleas Court hearing was to show that the appellant (1) was placed under arrest for driving while under the influence of alcohol, and the arresting officer had reasonable grounds to believe the driver was intoxicated; (2) was asked to submit to a breathalyzer test; (3) refused to do so; and (4) was warned that his license would be suspended if he refused to take the test. Everhart v. Commonwealth, 54 Pa. Commonwealth Ct. 22, 26, 420 A.2d 13, 15 (1980). Accord, Department of Transportation, Bureau of Traffic Safety v. Ferrara, 89 Pa. Commonwealth Ct. 549, 552, 493 A.2d 154, 156 (1985).

Appellant argues first that the arresting officer failed to warn him that his operating privilege would be suspended or revoked as required by 75 Pa. C.S. § 1547(b)(2). Counsel for appellant contends that the disjunctive wording, e.g. suspended or revoked," of the statute prior to the 1982 amendments required the arresting officer to issue an "either . . . or" warning to appellant that his license would either be suspended or revoked upon refusal to take a breathalyzer test.*fn3

The arresting officer testified at the hearing below that appellant's operating privileges "would be suspended if he doesn't [sic] take the test." This

[ 93 Pa. Commw. Page 224]

    was a sufficient warning to satisfy 75 Pa. C.S. § 1547(b)(2) as it was written and judicially construed in 1982. So long as the idea of certainty of loss of license was communicated to appellant, the discussion of putative outcomes such as suspension or revocation is irrelevant to the satisfaction of the statute. See Everhart; In Re Harper, 57 Pa. Commonwealth Ct. 89, 426 A.2d 196 (1981); Moran v. Commonwealth, 44 Pa. Commonwealth Ct. 105, 403 A.2d 637 (1979).

Appellant's second argument is that he did not make a knowing and conscious refusal of the test. He argues that he was in physical pain from a blow to his side which rendered him unable to understand the officer's requests regarding chemical testing. Appellant further contends that the standard of knowing and intelligent waiver be borrowed from the settings of Miranda v. Arizona, 384 U.S. 436 (1966), and Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979), and applied to the case of a refusal to take a sobriety test.

Appellant is wrong to cite Miranda and Bussey because an adverse inference may be drawn from his silence in an administrative proceeding such as the instant one.*fn4 The test of knowing and conscious refusal

[ 93 Pa. Commw. Page 225]

    is far less stringent than the Miranda waiver.*fn5 "A driver's refusal to take a breathalyzer test mandates suspension of his operator's license under Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547, and we have consistently defined a refusal as anything substantially short of an unqualified unequivocal assent to an officer's request to the arrested motorist." Department of Transportation, Bureau of Traffic Safety v. Tillitt, 49 Pa. Commonwealth Ct. 343, 346, 411 A.2d 276, 277 (1980) (emphasis deleted).

[ 93 Pa. Commw. Page 226]

Once the Commonwealth had proved the elements of refusal, the burden was on the appellant to show his refusal was not knowing and conscious, and that question was one of fact for the court below. In Re Page 226} Capozzoli, 63 Pa. Commonwealth Ct. 411, 437 A.2d 1340 (1981). As the trial court found, no medical evidence of an inability to take the test or to understand the consequences of refusal was presented as required by Brinkerhoff v. Department of Transportation, Bureau of Traffic Safety, 59 Pa. Commonwealth Ct. 419, 430 A.2d 338 (1981).

Regarding the burden of proving a lack of knowing and conscious refusal, appellant's argument is similar to one rejected in Department of Transportation, Bureau of Traffic Safety v. Dauer, 52 Pa. Commonwealth Ct. 571, 416 A.2d 113 (1980). In Dauer, the appellant claimed he had banged his head on the roof of his truck and thereafter was physically incapable of refusing or assenting to a breathalyzer test. In this case, appellant argues that during his arrest, he received a blow to the side which aggravated a pre-existing medical condition, nullifying or seriously compromising his power to refuse or assent to a breathalyzer test. He testified he had endured open-heart surgery and the partial removal of a lung more than ten years prior to the incident in question, but presented no medical testimony or records to substantiate either this claim or the claimed effects of the surgery and the blow to his side on his ability to reason properly. In Dauer, this Court stated:

The refusal to submit to a breathalyzer test is a factual, not a legal determination. . . . After the Department has proven that a driver did in fact refuse to submit to a breathalyzer test, the burden shifts to the driver to prove by competent evidence that he was physically unable to take the test or incapable of a conscious and knowing refusal. . . . [A] driver's simple declaration that he is physically unable to perform a chemical test, without supportive

[ 93 Pa. Commw. Page 227]

    medical proof of his incapacity, will not justify a refusal.

Id. at 574-75, 416 A.2d at 114-115 (citations omitted). Under Dauer, appellant's failure to present medical testimony was enough to justify a factual finding that the refusal was conscious and knowing.

Because the officer's warning was adequate and because appellant failed his burden of proof to show his refusal was not conscious and knowing, the dismissal of appeal is affirmed.


And Now, this 27th day of November, 1985, the order of the Court of Common Pleas of Allegheny County, No. SA 797, Statutory Appeal Docket 1982, filed July 13, 1983, is affirmed.



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