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COMMONWEALTH PENNSYLVANIA v. RICHARD JAY FIRESTONE (12/07/87)

decided: December 7, 1987.

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



Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of Commonwealth of Pennsylvania, Department of Transportation v. Richard Jay Firestone, No. 684 of 1985.

COUNSEL

Harold H. Cramer, Assistant Counsel, with him, Christopher J. Clements, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, Morey M. Myers, General Counsel, for appellant.

Mary E. Baloh, for appellee.

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

Author: Craig

[ 111 Pa. Commw. Page 499]

The Department of Transportation, Bureau of Driver Licensing appeals an order of the Court of Common Pleas of Westmoreland County which sustained the appeal of Richard Jay Firestone from a one-year suspension of his operating privilege for refusing to submit to a chemical breath test. Section 1547(b) of the Vehicle Code, as amended, 75 Pa. C.S. § 1547(b).*fn1

[ 111 Pa. Commw. Page 500]

To prevail upon appeal in a license suspension case under § 1547(b) of the Code, the state must prove that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was requested by the officer to submit to a breathalyzer test; (3) refused to do so; and (4) was warned by the officer that the department would suspend his driving privileges if he refused to take the test. The burden then shifts to the driver to prove that he was physically incapable of making a knowing and conscious refusal to take the test. Neitz v. Department of Transportation, Bureau of Traffic Safety, 96 Pa. Commonwealth Ct. 1, 506 A.2d 961 (1986).

DOT contends that the trial court's order reinstating Mr. Firestone's driving privilege should not be upheld because it committed an error of law by applying the probable cause standard as opposed to a reasonable grounds standard.

After a de novo hearing the trial judge determined that a "serious question of time between the Appellant being observed by the Officer, and the time the Appellant was driving his vehicle" existed, and he specifically held that "[t]he Commonwealth's failure to establish [an] important time element seriously affects the probable cause for arresting Appellant on the charge of driving while intoxicated."

Our review in this case is limited to determining whether the trial court's de novo findings are supported by competent evidence, whether there has been an erroneous conclusion of law or whether the common pleas decision demonstrates a manifest abuse of discretion. Department of Transportation, Bureau of Traffic Safety v. Webster, 104 Pa. Commonwealth Ct. 214, 521 A.2d 519 (1987).

The record shows that on November 29, 1984 John S. McMurtie, a Pennsylvania State trooper was on a routine patrol on ...


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