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COMMONWEALTH PENNSYLVANIA v. AUGUSTO GONZALEZ (10/22/87)

decided: October 22, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
AUGUSTO GONZALEZ, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Commonwealth of Pennsylvania v. Augusto Gonzalez, SA 1100 of 1985.

COUNSEL

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

David S. Shrager, for appellee.

Judges Doyle and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 110 Pa. Commw. Page 380]

The Department of Transportation (DOT) appeals an order of the Court of Common Pleas of Allegheny

[ 110 Pa. Commw. Page 381]

County (trial court) which sustained the demurrer of Augusto Gonzalez (appellee) to DOT's evidence. The trial court concluded that DOT had offered no proof that the appellee was operating a vehicle so as to enable DOT to suspend his license, pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b) (refusal to submit to a blood test).

On May 21, 1985, O'Hara Township Police Department Officers Hughes and Bronowicz received a radio call indicating that there was property damage at a local gas station. The officers were given the description of a BMW automobile, allegedly responsible for the damage, as well as its color and license plate number. Based on this information, the officers were led to an address where they found the appellee. Although the appellee was not in the car, and the car was parked, he admitted to the police officers that he was the operator of the vehicle for which they were looking. The officers testified that the appellee smelled strongly of alcohol and was not able to stand without support. Accordingly, they requested his operator's license, and he had to be assisted in finding his wallet. He thereafter failed a field sobriety test and was requested to submit to a blood test, which he refused.

DOT notified the appellee that his operating privileges were being suspended for a period of one year, pursuant to a May 22, 1985 conviction under Section 1547 of the Vehicle Code, and the appellee appealed. After DOT presented its evidence to the trial court, the appellee moved for a demurrer on the basis that DOT had failed to produce evidence sufficient to prove that the appellee was, in fact, the driver of the vehicle. The trial court sustained the demurrer, and DOT appealed here.

Our scope of review in appeals from license suspensions, of course, is limited to determining whether or

[ 110 Pa. Commw. Page 382]

    not the trial court abused its discretion or committed an error of law. Appeal of Finkelstein, 73 Pa. ...


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