Appeal from the Order of the Court of Common Pleas of Butler County in the case of Commonwealth of Pennsylvania, Department of Transportation, Department of Driver Licensing v. William B. Varos, No. 84-036, Misc. Docket, Book 43, Page 286.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Armand R. Cingolani, Jr., for appellee.
President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 102 Pa. Commw. Page 380]
The Department of Transportation, Bureau of Motor Vehicles (DOT) appeals a Butler County Common Pleas Court order reversing a one-year license suspension imposed on William B. Varos for refusing to submit to a blood alcohol test. We reverse.*fn1
Police officers arrested Varos at the scene of a one-car accident. After Varos refused treatment for cuts and abrasions at a hospital, he was asked to submit to a blood alcohol test. He was warned that a refusal would result in a one-year license suspension, yet refused to give a blood sample. The trial court held that the proffer of a hospital consent form in conjunction with the blood alcohol request was unnecessary and potentially confusing and, thus, reversed the suspension.
DOT contends that the trial court erred in relying upon Sickman v. Commonwealth, 79 Pa. Commonwealth Ct. 173, 468 A.2d 909 (1983), and Maffei v. Department of Transportation, 53 Pa. Commonwealth Ct. 182, 416 A.2d 1167 (1980), to sustain Varos' appeal. We agree.
We find the instant case distinguishable because Varos' submission to the blood test was not conditioned either upon the signing of a consent form (Maffei) or the answering of a questionnaire or completion of a performance test (Sickman). Varos was asked directly and unconditionally to submit to a blood test and adamantly
[ 102 Pa. Commw. Page 381]
refused.*fn2 Therefore, we hold that Varos' duty to assent to a blood test was not impermissibly burdened by the proffer of a hospital consent form which was not a precondition to the blood test.
Varos primarily contends that in his injured and irrational state he was not capable of making a knowing and conscious refusal to submit to a blood test.
Where the Commonwealth has proven that the driver failed to submit to an alcohol test, the burden shifts to the driver to prove by competent evidence that he was physically unable to take the test or not capable of making a knowing and conscious refusal. Department of Transportation, Bureau of Traffic Safety v. Struzzeri, 95 Pa. Commonwealth Ct. 12, 504 A.2d 961 (1986). Although the evidence indicates that Varos suffered a loss of blood, his behavior demonstrated no obvious inability to make a knowing and conscious refusal.*fn3 Therefore, in accordance with Struzzeri, Varos' incapacity defense must be ...