Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Commonwealth of Pennsylvania v. William J. La Salle, No. 267 April Term, 1984.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Randall C. Flager, Groen, Goldberg & Rubenstone, for appellee.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.
[ 102 Pa. Commw. Page 423]
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals a Philadelphia County Common Pleas Court order reversing a one-year license suspension imposed upon Joseph La Salle (appellee) for refusing to submit to a blood alcohol test in violation of Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b). We reverse.*fn1
Preliminarily, we note that an opinion in this matter was previously filed on December 11, 1986. The appellee had filed no brief as of the date of the opinion's release. However, on December 11, 1986, an attorney recently retained by appellee filed a request that he be able to submit a brief on his client's behalf. In the interests of justice, we withdrew the opinion and allowed appellee to submit a brief in order to consider all arguments which appellee might advance.
The facts of the case are as follows. A police officer was called to the scene of an accident on February 19, 1984. Upon arrival, he discovered that appellee's vehicle had been struck head-on by an oncoming vehicle which crossed the center of the roadway. During an investigation of the accident, the officer detected an odor of alcohol on appellee's breath and, additionally, noticed that appellee had difficulty walking and staggered as he exited his vehicle. At that time, appellee was placed under arrest for driving while intoxicated. Since appellee was being transported to a hospital for treatment of his injuries, the officer requested that appellee submit to a chemical blood alcohol test. Before the trial court, the officer testified that appellee initially agreed to the
[ 102 Pa. Commw. Page 424]
chemical test; however, once he arrived at the hospital, he stated that the "test would not be in his best interest" and refused the test. By contrast, appellee testified that he remembered nothing of any substance following the collision and, specifically, that he remembered neither consenting nor refusing to take the test. The trial court held that it believed that appellee was unable to consciously refuse or consent to take the test as a result of injuries he sustained in the accident.
On appeal, DOT contends that the trial court erred in concluding that appellee had met his burden of demonstrating that his refusal to submit to a chemical test was not knowing and conscious due to the injuries he sustained. We agree.
Where the Commonwealth has proven that the driver failed to submit to a blood 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 appellee did, indeed, sustain some injuries as a result of the accident, his behavior did not indicate that he was unable to make a knowing and conscious refusal. This Court has previously stated:
[N]o medical testimony as to whether the appellee suffered a concussion or as to what effects a severe blow to appellee's head would have had on him was introduced. We note that a driver's simple declaration that he is physically unable to perform a chemical test, without ...