Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Phillip Struzzeri v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety Operations, No. 4927-C of 1983.
Michael R. Deckman, Deputy Chief Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
No appearance for appellee.
President Judge Crumlish, Jr., Judge Rogers, and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Senior Judge Kalish dissents.
The Department of Transportation (DOT) suspended Phillip Struzzeri's driving license for one year for refusing to submit to a breathalyzer test. Section 1547(b)(1) of the Vehicle Code.*fn1 A Luzerne County Common Pleas Court order sustained Struzzeri's appeal and rescinded the suspension. DOT appeals this order. We reverse and reinstate the suspension.
Struzzeri was found slumped over the driving wheel of his automobile by two Pittston Township police officers. The officers detected an alcoholic odor on his breath and arrested him. Struzzeri refused to take a breathalyzer test. The trial court found that the officers had probable cause to make the arrest, but that Struzzeri did not consciously refuse to take the breath test because he suffered a head injury in an accident occurring just prior to the officers' arrival at the scene.
Our scope of review of a common pleas court decision in a license suspension matter is limited to determining whether the findings of fact are supported by competent evidence, whether there has been an error of law, or whether the trial court's decision evidences a manifest abuse of discretion. Liebler v. Commonwealth, 83 Pa. Commonwealth Ct. 270, 476 A.2d 1389 (1984).
DOT contends that the trial court erred in determining that competent medical evidence was introduced
to support a finding that a knowing and conscious refusal was not given.
When the Commonwealth 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. Department of Transportation, Bureau of Traffic Safety v. Dauer, 52 Pa. Commonwealth Ct. 571, 416 A.2d 113 (1980). Where, as here, there is no obvious inability suffered by the driver, a finding that he was unable to make a knowing and conscious refusal must be supported by competent medical evidence. Dauer; Department of Transportation, Bureau of Traffic Safety v. Michalec, 52 Pa. Commonwealth Ct. 89, 415 A.2d 921 (1980).
Our review of the record discloses no competent medical evidence to support the trial court's conclusion that Struzzeri suffered a mild concussion preventing him from knowingly and consciously refusing to take the test. Struzzeri's self-serving statement that his doctor told him that he had "probably" suffered a mild concussion does not ...