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BARRY L. BENDER v. COMMONWEALTH PENNSYLVANIA (02/04/87)

filed: February 4, 1987.

BARRY L. BENDER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from Common Pleas Court, Clinton County, Honorable Carson V. Brown, Pres. Judge.

COUNSEL

T. Max Hall, Esq., McNERNEY, PAGE, VANDERLIN & HALL, for Appellant.

Glen Davis, Esq., Harold H. Cramer, Esq., for Appellee.

Honorable John A. MacPHAIL, Judge, Honorable Madaline Palladino, Judge, Honorable Alexander F. Barbieri, Senior Judge.

Author: Macphail

Opinion BY JUDGE MacPHAIL

Dr. Barry L. Bender (Appellant) appeals an order of the Clinton County Court of Common Pleas which dismissed his appeal of an order of the Department of Transportation (Department) and reinstated the suspension of his operating privileges which had been imposed under Section 1547(b) of the Vehicle Code, as amended, 75 Pa. C.S. ยง 1547(b). We affirm the court of common pleas.

On August 5, 1984, Appellant was arrested from driving under the influence by Sgt. J. C. Frazier of the Lock Haven City Police Department. He was transported to the police station where he was asked to submit to a breathalyzer test or a blood test. Sgt. Frazier informed Appellant that refusal to submit would result in a one-year suspension of his operating privileges.

Appellant refused to submit to either test, screaming that he hated all cops, that they were crooked and that he would not receive a fair test.

Sgt. John Frazier, a qualified breathalyzer operator, was called in to administer the breath test should Appellant assent, and he again informed Appellant of the consequences of his refusing to submit. Appellant was also told that a blood test could be performed at the hospital in which he was employed. Appellant again refused both tests.

As a result of Appellant's refusal to submit, the Department suspended his operator's license for one year pursuant to Section 1547(b). Appellant's appeal of this determination was dismissed by the court of common pleas and his suspension reinstated. Appellant's appeal of the order of the court of common pleas is now before us.

Appellant argues that his refusal to submit to the breath test was justified because due to a prior incident involving himself and Sgt. J. C. Frazier,*fn1 his first cousin Sgt. John Frazier could not be trusted to administer a fair test without altering the breathalyzer results.*fn2 Appellant reasons that because he expressed these concerns at the time the test was offered, the officers had a duty to reassure him by explaining the operation of the breathalyzer and allowing him to witness the procedure to guarantee impartiality, fairness and accuracy. We cannot accept this argument.

A trial court's decision in a license suspension case, first of all, cannot be disturbed unless its findings are not supported by competent evidence, erroneous conclusions of law have been made, or the decision exhibits a manifest abuse of discretion. Bruno v. Department of Transportation, 54 Pa. Commonwealth Ct. 353, 422 A.2d 217 (1980). Further, questions of credibility and conflicts in the evidence are for the trial court to resolve. Waigand v. Commonwealth, 68 Pa. Commonwealth Ct. 541, 449 A.2d 862 (1982).

In this case, the trial court accepted as credible the testimony of Sgt. J. C. Frazier that there was no animosity between him and Appellant which would affect his ability to administer an impartial breathalyzer test. Even though the test was to be administered by Sgt. J. C. Frazier's first cousin, the court was satisfied that the results could not have been falsified by either one. The Court concluded ...


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