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COMMONWEALTH PENNSYLVANIA v. JAMES E. KENNEDY (05/04/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 4, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
JAMES E. KENNEDY, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. James E. Kennedy, No. SA 866-1984.

COUNSEL

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellant.

James E. Kennedy, Reale, Fossee & Ferry, P.C., for appellee.

Judges Craig and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 105 Pa. Commw. Page 589]

The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Allegheny County, which reversed the Department's decision to suspend James E. Kennedy's driver's license for one year pursuant to Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. ยง 1547(b), because he refused to submit to a breathalyzer test. We affirm.

[ 105 Pa. Commw. Page 590]

The facts as found by the trial court are that on May 23, 1984, Kennedy was the operator of a vehicle involved in a two-vehicle collision resulting in personal injuries to himself and others, as well as property damage. Officer Michael Butya of the Robinson Township Police Department arrived at the scene and asked Kennedy if he had been drinking. Kennedy responded in the affirmative. Officer Butya then asked Kennedy if he would submit to a breathalyzer test and Kennedy responded that he would "think about it." Kennedy successfully performed some field sobriety tests and Officer Butya made observations of his eyes and speech and the smell of alcohol on his breath. Kennedy was cooperative. Due to Kennedy's complaints about neck pain, he was taken to Ohio Valley Hospital by an ambulance summoned by Officer Butya. Following completion of his investigation at the scene, Officer Butya went to the hospital and asked Kennedy to take a breathalyzer test. Kennedy refused, although he was properly instructed as to the consequences of such refusal. Kennedy was transported to another area hospital upon his request.

The Department sent a notice of suspension to Kennedy on June 12, 1984. The Court of Common Pleas of Allegheny County reversed this suspension on the ground that the Department failed to meet its burden of proving that Kennedy was under arrest for driving under the influence when he was asked to submit to the breathalyzer test. We are constrained to agree.

The Department has the burden of proving that a driver was placed under arrest for driving under the influence of alcohol. Gresh v. Department of Transportation, Bureau of Traffic Safety, 76 Pa. Commonwealth Ct. 483, 464 A.2d 619 (1983). The question of whether a driver has been placed under arrest for purposes of Section 1547(b)(1) of the Code refers to a factual situation,

[ 105 Pa. Commw. Page 591]

There being sufficient evidence to support the trial court's finding that there was no arrest, the order of the Court of Common Pleas of Allegheny County is affirmed.

Order

Now, May 4, 1987, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter, dated April 12, 1985, is hereby affirmed.

Disposition

Affirmed.


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