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

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. § 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 ...


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