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HARRY J. MCFADDEN v. COMMONWEALTH PENNSYLVANIA (08/03/87)

decided: August 3, 1987.

HARRY J. MCFADDEN, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Commonwealth v. Harry J. McFadden, No. 85-01379, License Suspension.

COUNSEL

Arthur L. Jenkins, for appellant.

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

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 108 Pa. Commw. Page 195]

The Court of Common Pleas of Montgomery County, after a hearing de novo, sustained the suspension of Harry J. McFadden's (McFadden) driver's license for one year for his failure to submit to a breathalyzer test as required by Section 1547 of the Vehicle Code, 75 Pa. C.S. ยง 1547 and dismissed his appeal. McFadden appealed to this Court. We affirm.

The relevant facts are as follows. On January 4, 1985, Officer Robert Twist of the Ambler Borough Police Department observed McFadden driving his vehicle three-quarters of the way in the opposite lane of Tennis Avenue in Ambler Borough. Officer Twist also observed the vehicle's right turn signal come on but the vehicle then proceeded to make a left turn. Officer Twist stopped the vehicle and, as he approached McFadden, Officer Twist detected a strong odor of alcohol. McFadden failed two sobriety tests, was placed under arrest and was orally advised of his Miranda*fn1 rights.

[ 108 Pa. Commw. Page 196]

McFadden was then transported to the Ambler Borough Police Station for a breathalyzer test. At the station, McFadden was again given his Miranda rights, this time in written form. When requested to take a breathalyzer, McFadden refused. However, McFadden did shortly thereafter request from Officer Twist the opportunity to make a phone call and Officer Twist consented. However, after the phone call, McFadden continued to refuse to take a breathalyzer.

An operator's driving privileges may be suspended for refusal to submit to a breathalyzer test where the Department of Transportation proves that the driver involved: (1) was placed under arrest for driving while under the influence of alcohol, and the arresting officer had reasonable grounds to believe the driver was intoxicated; (2) was asked to submit to a breathalyzer test; (3) refused to do so; and (4) was warned that his license would be revoked if he refused to take the test. Waigand v. Commonwealth, 68 Pa. Commonwealth Ct. 541, 449 A.2d 862 (1982).

On appeal, the sole question presented for our consideration is whether the trial court erred in concluding that McFadden made a knowing and conscious refusal to take the breathalyzer.

Once the Commonwealth has proven that a defendant refused to submit to a breathalyzer, the burden shifts to the defendant to prove by competent evidence that he was unable to make a knowing and conscious refusal. Ford v. Department of Transportation, 45 Pa. Commonwealth Ct. 268, 406 A.2d 240 (1979). Whether a driver has satisfied his burden that he was unable to make a knowing and conscious refusal is a factual question to be determined by the trial court. Waigand.

McFadden argued before the trial court, and on appeal to this Court, based on the Miranda warnings he believed that he ...


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