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CHANG C. IM v. COMMONWEALTH PENNSYLVANIA (08/04/87)

decided: August 4, 1987.

CHANG C. IM, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Commonwealth of Pennsylvania, Department of Transportation v. Chang C. Im, No. 84-12781.

COUNSEL

Harold D. Borek, for appellant.

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

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

Author: Narick

[ 108 Pa. Commw. Page 207]

The Court of Common Pleas of Montgomery County, after a hearing de novo, sustained the suspension of Chang C. Im's (Appellant) 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. Hence, this appeal by Appellant. We affirm.

At the de novo hearing held before the trial court, Police Officer Earl Saurman of the Abington Township Police Department testified that he observed Appellant drive his car through a red light and onto a sidewalk. Officer Saurman testified that he stopped Appellant's vehicle and requested from Appellant his driver's license and owner's card. While speaking with Appellant, Officer Saurman said he observed a strong odor of alcohol on Appellant. According to Officer Saurman, when asked to take a sobriety test, Appellant replied with an obscenity. Appellant was then transported to the Abington Township Police Station and was requested to take a breathalyzer test. However, the machine malfunctioned so Appellant was transported to another police station to take the test. At the second station, Appellant refused to take the test. Officer Saurman stated that he advised Appellant approximately six times that Appellant's license would be suspended for one year if

[ 108 Pa. Commw. Page 208]

    he refused to take the test. Also, Officer Saurman testified that Appellant was able to understand him when he spoke and that Appellant responded in English to Officer Saurman when he refused to take the breathalyzer.

The trial court concluded that Appellant did make a knowing and conscious refusal to take the breathalyzer test because Appellant understood English to a degree necessary to comprehend the situation that was before him. The trial court based this finding on "the evidence presented and the demeanor of the Defendant", including the fact that during certain instances in the courtroom, Appellant responded to questions unassisted by an interpreter and his comments left no doubt in the opinion of the court that the Appellant understood English. The court further explained its reasons for concluding that Appellant made a knowing and conscious refusal to take the breathalyzer test as follows. Appellant responded appropriately when asked by Officer Saurman to see his driver's license and owner's card, and when he was requested to get out of the vehicle. The court further noted that when asked to take a field sobriety test, Appellant responded with an obscenity in English, and that Appellant spoke to Officer Saurman in English on a number of occasions.

Our scope of review is limited to determining whether the trial court's findings are supported by competent evidence, whether an error of law has been committed, and whether the trial court's decision constitutes a manifest abuse of discretion. Waigand v. Commonwealth, 68 Pa. Commonwealth Ct. 541, 449 A.2d 862 (1982).

The basis of Appellant's appeal is that his native language is Korean and he does not understand the English language. More specifically, Appellant contends that the Commonwealth of Pennsylvania, Department ...


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