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

COMMONWEALTH COURT OF PENNSYLVANIA


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. ยง 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. Department of Transportation, Bureau of Traffic Safety v. Day, 93 Pa. Commonwealth Ct. 49, 500 A.2d 214 (1985).

In this case, it is undisputed that the Commonwealth has met its initial burden for sustaining a license suspension under Section 1547.*fn1 The Commonwealth having met its burden, the burden then shifts to the motorist, Appellee Rogers, to show by competent evidence that he was physically unable to take the test, or that he was 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 (1987) (citing Department of Transportation, Bureau of Traffic Safety v. Struzzeri, 95 Pa. Commonwealth Ct. 12, 504 A.2d 961 (1986)). The trial court found that Rogers' refusal "was probably not knowingly and consciously made due to . . . apparently confusing and strained circumstances." This finding is not supported by competent evidence.

At trial, Appellee did not present any medical evidence in support of his refusal. Although competent

[ 110 Pa. Commw. Page 457]

    medical evidence is not an intrinsic element of Appellee's burden of proof, Day, it is required in certain fact situations, including such as those which appear on the record before us, to show the incapacity to make a knowing and conscious refusal. Without competent medical evidence, Appellee's self-serving statements of his physical condition were insufficient to support an incapacity defense. See Department of Transportation, Bureau of Driver Licensing v. Norton, 103 Pa. Commonwealth Ct. 78, 519 A.2d 1085 (1987). Because Appellee's alleged mental incoherence could have resulted as likely from intoxication as from some other cause, competent medical evidence was needed in order for Appellee to sustain his burden. Moreover, it is well-settled that incoherence and confusion, taken alone, will not support an incapacity defense, absent an obvious disability and absent correlative competent medical evidence as to the source or medical reason for such a state. Cassidy. Additionally, the need for supporting medical evidence in this case is undiminished by testimony as to the injuries that were apparent,*fn2 because Appellee suffered from no obvious inability to comply with the state trooper's request that he submit to a blood-alcohol test; in fact, he gave his consent twice before he refused. These actions alone would have been sufficient to negate any apparent inability to

[ 110 Pa. Commw. Page 458]

    make a knowing and conscious refusal.*fn3 Department of Transportation, Bureau of Driver Licensing v. LaSalle, 102 Pa. Commonwealth Ct. 422, 520 A.2d 131 (1987).

We conclude, therefore, that there was no competent evidence upon which a finding of the incapacity to make a knowing and conscious refusal could be based and, accordingly, the trial court's order is reversed and DOT's suspension order reinstated.

Order

Now, October 27, 1987, the order of the Court of Common Pleas of Pike County in the above-captioned matter is hereby reversed and the Department of Transportation's suspension order is reinstated.

Disposition

Reversed. Suspension reinstated.


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