Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania, Department of Transportation v. Edward Dawkins, SA 555 1986.
Arnold H. Cantor, for appellant.
Harold H. Cramer, Assistant Counsel, with him, John L. Heaton, Chief Counsel, for appellee.
Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 111 Pa. Commw. Page 537]
Edward Dawkins appeals an order of the Court of Common Pleas of Allegheny County which dismissed his appeal of a one-year suspension of his operating privilege. The Bureau of Traffic Safety, Pennsylvania Department of Transportation, suspended Mr. Dawkins' operating privilege upon determining that he knowingly refused to submit to a blood alcohol test after being arrested for driving under the influence. See section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b).*fn1
[ 111 Pa. Commw. Page 538]
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. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, 96 Pa. Commonwealth Ct. 1, 506 A.2d 961 (1986).
Mr. Dawkins contends that the suspension of his driving privileges should not be upheld because the Commonwealth failed to meet its burden of proving that he was under arrest because the trial court expressly found he was not under arrest or in the custody of the police.
The trial judge's specific finding was as follows:
No arrest was made, nor was the Defendant taken into custody, but he was treated at a medical facility by paramedics and thereafter released. He was unable to remember what occurred, but was not arrested until February 5, 1986 at the Public Safety Building in the City of Pittsburgh. Previously, the Officer, Michael Kondas, specifically stated that he did not have the Defendant under his control on the night of January 18, 1986. (Emphasis added.)
This court's scope of review in a case of this type is limited to determining whether ...