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COMMONWEALTH PENNSYLVANIA v. CARL J. JOHNSON (11/24/86)

decided: November 24, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
CARL J. JOHNSON, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cambria County, in case of Commonwealth of Pennsylvania v. Carl J. Johnson, No. 1984 -- 1396.

COUNSEL

Harold H. Cramer, Assistant 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 Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 102 Pa. Commw. Page 303]

The Commonwealth of Pennsylvania, Department of Transportation (DOT), appeals the order of the Court of Common Pleas of Cambria County (trial court), which sustained Carl J. Johnson's appeal from a twelve-month suspension of his driver's license for refusing to submit to a breathalyzer test. Section 1547(b) of the Vehicle Code, 75 Pa. C.S. ยง 1547(b).

After a de novo hearing, the trial court reversed the suspension and reinstated Johnson's license, holding that "[n]o formal arrest was ever made nor probable cause for arrest was (sic) established in the instant case. At Magistrate's hearing immediately following incident, charge of driving while intoxicated was dismissed. Defendant's unsteady gait was explainable in that defendant has lost his leg and has an artificial one."

DOT contends that the trial court erred*fn1 in applying the "probable cause for arrest" standard. We agree.

[ 102 Pa. Commw. Page 304]

Recently, we noted that the probable cause standard is inappropriate in driver license suspension cases. Department of Transportation v. O'Neill, 100 Pa. Commonwealth Ct. 448, 514 A.2d 1008 (1986). The appropriate inquiry is whether or not the police officer had reasonable grounds to believe that the individual had been driving under the influence. Bureau of Traffic Safety v. Dreisbach, 26 Pa. Commonwealth Ct. 201, 363 A.2d 870 (1976).

Testifying before the trial court, Johnson admitted to having consumed two glasses of beer shortly before being involved in a slight collision with another vehicle and he also admitted that the investigating police officer, Sergeant Dell, requested him to "walk on that line" as a field sobriety test because the officer suspected that Johnson had been drinking. He also testified that after he informed Sergeant Dell of his artificial leg, he was not required to perform the field test.

Johnson's admissions clearly corroborate Sergeant Dell's testimony. The Sergeant stated that when he arrived at the accident scene, Johnson was outside of his vehicle. He testified that he detected a strong odor of alcohol on Johnson's breath, that Johnson's eyes were glassy and that Johnson was swaying. Sergeant Dell also stated ...


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