Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of Commonwealth of Pennsylvania v. Dennis James Webster, No. 15 of 1980.
Michael R. Deckman, Deputy Chief Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
No appearance for appellee.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 104 Pa. Commw. Page 215]
The Pennsylvania Department of Transportation, Bureau of Traffic Safety (DOT) appeals from an Order of the Court of Common Pleas of Westmoreland County (trial court) which sustained the appeal of Dennis James Webster (Webster) from DOT's suspension of his driver's license for refusal to take a breathalyzer test. For the reasons set forth below, we reverse.
On October 12, 1980, Webster was arrested by Officer Morrison for violating Section 3731 of the Vehicle Code, as amended, 75 Pa. C.S. § 3731 (driving under the influence). He took a breathalyzer test and registered a blood alcohol content of .21 percent. The officer returned Webster to his car following the test since Webster had said a third party would drive him home.
[ 104 Pa. Commw. Page 216]
Twenty to thirty minutes later, while on foot, Officer Morrison observed Webster again driving his car and radioed Officer Sinkey to stop and arrest him. Webster was again placed under arrest for driving under the influence and requested to submit to a breathalyzer. This time, however, he refused despite being warned that refusal to take the test would result in a six-month suspension of his driving privilege.*fn1
At the de novo hearing, Officer Sinkey testified that he had arrested Webster and requested a breathalyzer test because he had received a call to stop Webster for driving without a license and had smelled alcohol on his breath. The trial court, in sustaining Webster's appeal, concluded that "the mere fact that Officer Sinkey arrested Appellant for operating without a driver's license, [and] the fact that he smelled alcoholic beverages is not sufficient to establish probable cause that Appellant [Webster] was intoxicated."
DOT contends that the trial court erred in applying a probable cause analysis and argues that the trial court should have applied a less stringent reasonable grounds test.*fn2 While we agree that reasonable grounds is the proper standard*fn3 in license suspension cases based on
[ 104 Pa. Commw. Page 217]
refusal to submit to chemical testing, we find it unnecessary to determine which test the trial court applied because the trial court ...