Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Commonwealth of Pennsylvania, Department of Transportation v. Lawrence G. Norton, No. 85-4050.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellant.
Margaret Amoroso Judge, Dessen, Moses & Sheinoff, for appellee.
Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.
[ 103 Pa. Commw. Page 79]
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals a Delaware County Common Pleas Court order reversing a one-year license suspension imposed upon Lawrence G. Norton (appellee) for refusing to submit to a breathalyzer test in violation of Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b). We reverse.*fn1
At approximately 4:00 a.m. on the morning of February 6, 1985, Officer George Timko, of the Tobyhanna Township Police Department, was dispatched to an intersection where he observed appellee's vehicle stopped in a driving lane extending out into the intersection. The vehicle's motor was running, the transmission was in "park," and appellee was slumped forward in the driver's seat with his eyes closed. When appellee did not respond to the officer's knocking on the window, the officer opened the car door and appellee acknowledged Officer Timko's presence and cooperated with requests to produce his driver's license and registration card. Officer Timko noticed the strong odor of alcohol on appellee's breath, his glassy eyes, and his slightly slurred speech; however, he testified that appellee was coherent, spoke intelligently, and was able to walk unsupported. As a result of the snow which had fallen that night, no field tests were conducted.
Officer Timko, relying on his observations, arrested appellee for driving under the influence of alcohol,
[ 103 Pa. Commw. Page 80]
placed him in the police car, advised him of his rights and requested that he submit to a breathalyzer test to be performed at the police barracks.
During the trip to the barracks, appellee was in the rear seat of the police vehicle with his eyes closed, unresponsive to Officer Timko's attempts to waken him. After employing ammonia inhalants to no avail, Officer Timko and another trooper carried him into the barracks and prepared to perform a breathalyzer test. During the twenty-minute waiting period, they made several additional attempts to revive him, all to no avail.
Appellee was then transported to the Pocono Hospital. Since Officer Timko believed appellee to be unconscious, he summoned a lab technician and instructed him to draw blood from appellee, who at this point awoke and resisted and struggled. Officer Timko advised appellee that he was requesting appellee to submit a sample of his blood for the purpose of determining the alcohol content thereof, but appellee refused. The officer asked him a second time to which appellee replied "no, you're not taking my blood." According to the officer's testimony, appellee was clearly informed that his failure to submit a sample of his blood would result in the suspension of his operating privilege. After the third request, appellee refused the test, stating "no way." Officer Timko testified at trial that appellee may have panicked when he first awoke, but that he stayed with appellee for a significant amount of time after he awoke in the emergency room, and the officer believed that appellee probably understood the second request and certainly understood the third request that he submit to testing. There was no accident at the scene, nor were there any visible signs of injury.
Appellee's testimony was that on February 5, 1985, he had worked as a ski instructor from 9:00 in the morning until 9:00 that night. After leaving work, appellee ...