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C. DONALD WHEATLEY v. COMMONWEALTH PENNSYLVANIA (02/23/87)

decided: February 23, 1987.

C. DONALD WHEATLEY, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Commonwealth of Pennsylvania v. C. Donald Wheatley, No. 83-5451.

COUNSEL

Kathleen A. Kerrigan, with her, John J. Kerrigan, Jr., Stuckert, Yates & Krewson, for appellant.

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

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 104 Pa. Commw. Page 172]

C. Donald Wheatley appeals from the order of the Bucks County Court of Common Pleas which dismissed his appeal from the one-year suspension of his operator's license by the Department of Transportation's Bureau of Traffic Safety (Bureau) under Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. ยง 1547(b), for Appellant's failure to submit to a breathalyzer test. We reverse.

This Court's scope of review of a common pleas court's decision in a license suspension case is limited to determining whether the findings of the court are supported by competent evidence, whether there has been an erroneous conclusion of law or whether the common pleas court's decision demonstrates a manifest abuse of discretion. Waigand v. Commonwealth, 68 Pa. Commonwealth Ct. 541, 449 A.2d 862 (1982); McMahon v. Commonwealth, 39 Pa. Commonwealth Ct. 260, 395 A.2d 318 (1978).

To sustain a license suspension under Section 1547(b) of the Code, the Commonwealth must establish that the driver involved: (1) was arrested for driving while under the influence of alcohol, (2) was requested to submit to a breathalyzer test, (3) refused to submit to such a test, and (4) was specifically warned that a refusal would result in the revocation of his driver's license. Department of Transportation, Bureau of Traffic Safety v. Sinwell, 68 Pa. Commonwealth Ct. 605, 450 A.2d 235 (1982), Waigand.

[ 104 Pa. Commw. Page 173]

The only party to appear before the court of common pleas was the Commonwealth. The arresting officer testified on behalf of the Commonwealth, stating that he had first observed Appellant leaning out of the driver's side of his car which was stopped at a red light vomiting, that after the light turned green he followed Appellant in his car for approximately two miles, that Appellant swerved into the opposite lane a number of times, and that, when he was finally successful in pulling Appellant off the road, Appellant had the strong odor of alcohol about his person and failed to satisfactorily perform a dexterity test, i.e. walking a straight line heel to toe. The officer next testified as follows:

I transported him to Northampton Police Station. At that point he was advised by Officer Taylor and myself, with me being present, of the Miranda Rights and also the applied [sic] consent rule was given to him. As a matter of fact it was given to him, being read to him and then gone over step by step quite painfully because the subject at that point was not wanting to sign the forms as noted here.

He had the Miranda warnings, which were read to him while he was reading it also.

We also had the applied [sic] consent form read to him while ...


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