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GERALD J. LARKIN v. COMMONWEALTH PENNSYLVANIA (09/30/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 30, 1987.

GERALD J. LARKIN, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Commonwealth of Pennsylvania v. Gerald J. Larkin, No. 84-1713.

COUNSEL

Steven R. Geroff, Geroff and Mittelman, 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 Judge Colins.

Author: Colins

[ 109 Pa. Commw. Page 612]

Gerald Larkin (appellant) appeals an order of the Court of Common Pleas of Delaware County which dismissed his appeal from a one year license suspension imposed by the Department of Transportation (DOT) upon his refusal to submit to a breathalyzer test in accordance with Section 1547 of the Vehicle Code, 75 Pa. C.S. ยง 1547.

There is no dispute in the instant matter that DOT presented sufficient proof of the legal elements required to sustain the suspension.*fn1 The controversy centers upon appellant's motivation in refusing to submit to the requested breathalyzer test. Appellant testified before the Common Pleas Court that he refused the test because he suffered from a neurological disorder known as Guillian-Barre Syndrome and had been advised by his physician to avoid strenuous activity. He also proffered

[ 109 Pa. Commw. Page 613]

    the deposition testimony of his physician,*fn2 admitted into evidence without objection of counsel, who therein reiterated the recommended restrictions on strenuous activity and commented upon the decreased respiratory capacity associated with the disease in its acute stages, the dangers of which, he submitted, appellant was well aware.

Appellant also testified that he informed the police officer of his medical problem and would have submitted to a chemical testing of his blood or urine had these alternative tests been offered. This police officer denied that appellant had revealed his physical incapacity, indicated that any such incapacity was not apparent and stated that alternative tests were available had appellant so requested.

Noting that appellant admitted reading a form delineating the required testing of blood, breath or urine, the trial court imposed upon him the duty of advising the police of his inability to submit to one of the tests and held that his failure to request an alternative to the breathalyzer where no such incapacity was readily observable constituted a violation of law. Moreover, the trial court concluded that, while appellant suffered a respiratory disease, he "lacked any medical proof that his disease precluded his taking the breath test."

Where, as here, the Commonwealth has proven that a driver has failed to submit to an alcohol test, the burden shifts to the driver to prove by competent evidence that he was physically unable to take the test or not capable of making a knowing or conscious refusal. Department of Transportation, Bureau of Traffic Safety v. Cassidy, 103 Pa. Commonwealth Ct. 582, 521 A.2d 59

[ 109 Pa. Commw. Page 614]

(1987), citing Department of Transportation, Bureau of Traffic Safety v. Struzzeri, 95 Pa. Commonwealth Ct. 12, 504 A.2d 961 (1986). Where no obvious inability is apparent, a finding that the driver was unable to take the test must be supported by competent medical evidence. See Struzzeri. Whether a driver has satisfied this burden is a factual determination to be made by the trial court. Waigand v. Commonwealth, 68 Pa. Commonwealth Ct. 541, 449 A.2d 862 (1982). Our scope of review in cases of this nature is to determine whether the findings of fact are supported by competent evidence and whether errors of law have been committed. Department of Transportation, Bureau of Traffic Safety v. Gordon, 95 Pa. Commonwealth Ct. 546, 505 A.2d 1125 (1986). The trial court here concluded that appellant neither informed the police officer of any medical problem nor requested an alternative to the breath test. It further determined that the medical evidence proffered by appellant did not warrant his refusal. We will not second guess those conclusions. Questions of credibility and conflicts in the evidence presented are for the trial court to resolve, not this Court. Department of Transportation, Bureau of Traffic Safety v. Korchak, 506 Pa. 52, 483 A.2d 1360 (1984).

We reject appellant's contention that the implied consent form*fn3 read to him by the arresting officer, and which he admitted reading, was misleading or misstated the applicable law so as to preclude DOT's suspension of his license by a theory of estoppel.

[ 109 Pa. Commw. Page 615]

Moreover, appellant's self-serving statement of his willingness to submit to blood or urine testing after his failure to advise the police of a physical incapacity to perform the breathalyzer test is specious. Under the instant circumstances, the trial court properly imposed upon appellant the duty of advising the police of any medical problem not reasonably ascertainable.*fn4 The police are not omniscient. Stating the obvious, they have no means of discerning a nonapparent disability absent a communication by the motorist.

Accordingly, the order of the Court of Common Pleas of Delaware County is affirmed.

Order

And Now, September 30, 1987, the order of the Court of Common Pleas of Delaware County in the above-captioned matter is affirmed.

Disposition

Affirmed.


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