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COMMONWEALTH PENNSYLVANIA v. RICHARD ROGERS (10/27/87)

decided: October 27, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
RICHARD ROGERS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Pike County, in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety Operations v. Richard Rogers, No. 904 -- 1984.

COUNSEL

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

John H. Klemeyer, with him, Karl A. Wagner, Jr., Beecher, Wagner, Rose and Klemeyer, for appellee.

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

Author: Doyle

[ 110 Pa. Commw. Page 454]

This is an appeal by the Pennsylvania Department of Transportation (DOT) from an order of the Court of Common Pleas of Pike County, which directed DOT to reinstate the driving privileges of Richard Rogers (Appellee).

[ 110 Pa. Commw. Page 455]

DOT had suspended Appellee's operating privileges for one year after receiving a police affidavit indicating that Appellee had refused to submit to a chemical blood-alcohol examination pursuant to Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547.

The trial court found as follows: Appellee was involved in a multi-vehicle accident on October 13, 1984. At the accident scene, a state police officer noted that Appellee exuded "a strong odor of alcohol" and that he had difficulty producing his driver's license and automobile registration upon request. After being taken by ambulance to a hospital, Appellee was advised of his rights and placed under arrest for driving under the influence of alcohol and reckless driving. Appellee then consented to a chemical blood-alcohol test to be administered by hospital technicians. After two unsuccessful attempts to withdraw a sample, and before a third attempt could be administered, a companion of Appellee arrived and advised him repeatedly to refuse to permit the test. Thereafter, Appellee withdrew his consent and continued to withhold his consent even after the consequences of such a refusal had been explained to him by the state trooper. Appellee remained steadfast in his refusal when the state trooper later returned to clarify his explanation of the consequences of a refusal. The trial court found that Appellee's refusal was not knowing and conscious. Accordingly, the court reversed DOT's order suspending Appellee's operating privileges.

The issue before us on appeal is whether there was competent evidence in support of the determination that Appellee's refusal to submit to a chemical blood-alcohol test was not knowing and conscious.

Our scope of review where the trial court has reversed a license suspension for refusal to submit to a chemical blood-alcohol test is limited to determining whether the findings of that court are supported by

[ 110 Pa. Commw. Page 456]

    competent evidence, whether there has been an erroneous conclusion of law, or whether the trial court's decision demonstrates a manifest abuse of discretion. Wheatley v. Department of Transportation, 104 Pa. Commonwealth Ct. 171, 521 A.2d 507 (1987). Whether the motorist has carried the burden of showing incapacity to make a knowing and conscious refusal is a question of fact for the fact finder. ...


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