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GERARD J. FIERST v. COMMONWEALTH PENNSYLVANIA (12/08/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 8, 1987.

GERARD J. FIERST, JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. Gerard J. Fierst, Jr., No. SA 1305 of 1985.

COUNSEL

Guido A. DeAngelis, for appellant.

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, for appellee.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 115 Pa. Commw. Page 265]

Gerard J. Fierst, Jr. (appellant), appeals from a de novo trial and order of the Court of Common Pleas of Allegheny County which sustained the suspension of his operating privileges for refusing to submit to a breathalyzer test. We affirm.

On June 15, 1985, appellant was operating his automobile when he struck another automobile. The police officer who was called to the scene of the collision found appellant in the driver's seat holding a bottle of beer. Appellant admitted coming from a bar and while appellant was being questioned, the officer noticed that he had trouble walking. The officer told appellant that he was under arrest for driving while under the influence of alcohol. Appellant was asked to submit to a breathalyzer test and was warned of the consequences of a refusal, but he refused to take the test, insisting that he was not intoxicated.

At the trial de novo, appellant's offer of a nol pros of the criminal charge was not allowed into evidence.

Section 1547(a) of the Vehicle Code, 75 Pa. C. S. ยง 1547(a), provides:

Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle.

Appellant contends that there was no reasonable grounds for believing him to be driving under the influence of alcohol and that there is insufficient evidence to

[ 115 Pa. Commw. Page 266]

    establish a refusal to take the breathalyzer test. He admits that he was driving the vehicle.

The actual guilt or innocence of the defendant in the criminal offense is not the issue, but rather it is based on an honest and reasonable belief of guilt. Department of Transportation v. Dreisbach, 26 Pa. Commonwealth Ct. 201, 363 A.2d 870 (1976).

Since proof of the favorable termination of the criminal proceedings does not, of itself, constitute evidence that the proceedings were instituted without reasonable grounds, Johnson v. Land Title Bank & Trust Co., 329 Pa. 241, 198 A. 23 (1938), certainly a nol pros would not constitute such proof. A nolle prosequi (nol pros) is a formal entry on the record by the prosecuting officer by which he declares that he will not prosecute the case further. Thus, it was not error to exclude such evidence.

The circumstances of appellant driving from a bar with a bottle of beer in his hand, along with his gait while walking and the odor of alcohol on his breath, are sufficient to warrant a reasonable belief that appellant was driving while intoxicated. It is no defense to a request to take the test that appellant believed himself not guilty of driving while intoxicated. That is not the issue. Corry v. Commonwealth, 59 Pa. Commonwealth Ct. 324, 429 A.2d 1229 (1981).

Accordingly, we affirm.

Order

Now, December 8, 1987, the order of the Court of Common Pleas of Allegheny County, in No. SA 1305 of 1985, dated January 29, 1986, is affirmed.

Disposition

Reversed.

19871208

© 1998 VersusLaw Inc.



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