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BARRY NEITZ v. COMMONWEALTH PENNSYLVANIA (03/18/86)

decided: March 18, 1986.

BARRY NEITZ, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Barry Neitz, No. 85-C-286.

COUNSEL

Samuel R. Kasick, Stamberg & Caplan, for appellant.

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

Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig. Senior Judge Kalish dissents.

Author: Craig

[ 96 Pa. Commw. Page 2]

Barry Neitz appeals an order of the Court of Common Pleas of Lehigh County which dismissed his appeal of a twelve-month suspension of his operating privilege. The Bureau of Traffic Safety, Pennsylvania Department of Transportation, suspended Mr. Neitz's operating privilege upon concluding that he had knowingly and consciously refused to take a blood alcohol test after being arrested for driving under the influence of alcohol. See section 1547(b) of the Vehicle Code, 75 Pa. C.S. ยง 1547(b).*fn1

[ 96 Pa. Commw. Page 3]

To sustain a license suspension under section 1547(b) of the Code, the Commonwealth bears the burden of proving that the driver (1) was placed under arrest for driving while under the influence of alcohol, and that the arresting officer had reasonable grounds to believe that the operator was driving while under the influence of alcohol; (2) was requested by the officer to submit to a breathalyzer test; (3) refused to do so; and (4) was warned by the officer that the department would suspend his driving privileges if he refused to take the test. If the department proves those elements, the burden then shifts to the driver to prove that he was physically incapable of making a knowing and conscious refusal to take the test. Capozzoli Appeal, 63 Pa. Commonwealth Ct. 411, 437 A.2d 1340 (1981).

Officer Charles Achenzie of the City of Bethlehem Police Department discovered Barry Neitz lying across the front seat of his severely damaged vehicle in a residential yard. Mr. Neitz was semiconscious, was covered with a large amount of blood and was moaning in pain.

Officer Achenzie remained with Mr. Neitz until the ambulance arrived, administered first aid, and transported

[ 96 Pa. Commw. Page 4]

Mr. Neitz to the Muhlenberg Medical Center. Officer Achenzie traveled to the medical center in his own vehicle and received permission from the emergency room physician to question Mr. Neitz. Officer Achenzie testified that he first advised Mr. Neitz of his rights and asked him about the details of the accident, to which Mr. Neitz responded that he didn't remember anything. Officer Achenzie then twice requested that Mr. Neitz submit to a blood alcohol test but Mr. Neitz refused. The officer stated that he advised Mr. Neitz that his operating privileges would be automatically suspended for the refusal. Officer Achenzie then received the results of a blood alcohol test which was taken for medical reasons. Later that night, he filed charges of driving under the influence of alcohol and refusing to submit to a blood alcohol test against Mr. Neitz.

We now consider three questions:*fn2 (1) Did the officer, by advising the severely injured driver that he is injured and that he should remain calm and still, place that individual under arrest? (2) Did the trial court err in admitting into evidence Officer Achenzie's testimony of his impressions and recollections as to what Mr. Neitz said in refusing and whether he did so knowingly and consciously? (3) Did ...


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