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COMMONWEALTH PENNSYLVANIA v. WARREN JOSEPH CASSIDY (02/10/87)

decided: February 10, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
WARREN JOSEPH CASSIDY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in the case of Warren Joseph Cassidy v. Commonwealth of Pennsylvania, No. 376 P. Misc. 1983.

COUNSEL

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Robert P. Corbin, with him, Thomas E. Butler, Jr., and Edward J. Stolarski, Jr., German, Gallagher & Murtagh, for appellee.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins. Senior Judge Kalish concurs in the result only.

Author: Colins

[ 103 Pa. Commw. Page 583]

The Department of Transportation, Bureau of Traffic Safety (DOT) appeals a Chester County Common Pleas

[ 103 Pa. Commw. Page 584]

Court order reversing a one-year license suspension imposed upon Warren Joseph Cassidy (appellee) for refusing to submit to a breathalyzer test in violation of Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. ยง 1547(b). We reverse.*fn1

Before the trial court, a police officer testified that she investigated a possible disturbance at Denny's Restaurant and, in so doing, observed appellee sitting at the counter. Appellee appeared intoxicated, his eyes were bloodshot, his speech was slurred, and he was unsteady in his seat. The officer offered to drive appellee home, but he declined the offer, claiming that someone was going to pick him up. The officer then instructed appellee not to drive himself because she felt that he was intoxicated. Shortly after the officer departed from the restaurant, she observed appellee walk over to a vehicle, enter the vehicle, and proceed to pull out from the parking lot. Appellee was pulled over and placed under arrest after an unsatisfactory performance in several field sobriety tests. He was transported to the Tredyffrin Township Police Department and was requested to submit to a breathalyzer test. He was also requested, alternatively, to submit to a blood or urine test. Several officers carefully explained to appellee, over a twenty-minute period, that a refusal to submit to chemical testing would result in an automatic suspension of his driver's license. Appellee refused to submit to testing in spite of the officers' repeated attempts to convince him. The arresting officer testified that appellee simply seemed not to believe that he would actually lose his license, and at one point, appellee was

[ 103 Pa. Commw. Page 585]

    even presented with a copy of the statute itself. Nevertheless, appellee continued to refuse to submit to any chemical test.

At trial, appellee took the stand on his own behalf and testified that on the evening in question, he had taken one Regroton tablet, a blood pressure medication that he had been taking for ten years. He further testified that he had consumed four glasses of wine and a glass of brandy around dinnertime. Although appellee recalled the officer's asking to drive him home, and recalled being stopped by the officer, he claimed a memory lapse concerning the events at the station. Specifically, appellee recalled refusing to submit to the test, but did not recall being warned that his license would automatically be suspended, although he did remember a sergeant saying something to the effect that his license could be suspended. The trial judge, Honorable Robert Gawthrop, of the Court of Common Pleas of Chester County, held that he believed that appellee was unable to consciously refuse or consent to take the test as a result of an incapacity that he suffered due to the combination of his blood pressure medication and his consumption of alcohol.

On appeal, DOT contends that Judge Gawthrop 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 unforeseeable effect of the ...


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