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COMMONWEALTH PENNSYLVANIA v. INDRA LIELKAJS (09/03/87)

decided: September 3, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
INDRA LIELKAJS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Commonwealth of Pennsylvania v. Indra Lielkajs, No. 3958, May Term, 1984.

COUNSEL

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

Andrew B. Shaw, Coco, Feiner & Citron, for appellee.

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

Author: Barry

[ 109 Pa. Commw. Page 149]

The Commonwealth of Pennsylvania, Department of Transportation (DOT), appeals from an order of the

[ 109 Pa. Commw. Page 150]

Court of Common Pleas of Philadelphia County sustaining the appeal of Indra Lielkajs (appellee) from a one year suspension of her operating privileges. We reverse.

At 3:05 a.m. on April 15, 1984, the appellee was involved in an automobile accident in which she received a bruise on her forehead. She was arrested for driving under the influence of alcohol, taken to a Philadelphia County Police Station and placed in a holding cell. At 5:30 a.m. a police officer requested the appellee to submit to a breathalyzer test. The appellee refused.

DOT suspended the appellee's operating privileges for a violation of Section 1547(b) of the Vehicle Code, 75 Pa. C.S. ยง 1547(b). In sustaining the appellee's appeal, the trial court opined that she was unable to consciously refuse or consent to a breathalyzer test as a result of the head injury. The trial court formed this opinion after taking testimony from both the officer and the appellee. It found both witnesses credible, the appellee more so.

"Our scope of review in the present case is limited to determining whether the findings of the trial court are supported by competent evidence, whether there has been an erroneous conclusion of law or whether the trial court decision demonstrates a manifest abuse of discretion." Department of Transportation, Bureau of Driver Licensing v. Andreoli, 96 Pa. Commonwealth Ct. 345, 347, 507 A.2d 919, 921 (1986). DOT contends that the trial court's findings are not based on competent evidence as it allowed the appellee's self-serving and unsupported testimony to be considered competent medical evidence to prove she was incapable of making a knowing and conscious refusal to submit to chemical testing. We agree.

To sustain a license suspension under Section 1547(b) of the code, the initial burden is on the Commonwealth to establish that the driver involved "(1) was arrested for ...


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