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DENNIS EDWARD GRAVES v. COMMONWEALTH PENNSYLVANIA (01/07/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 7, 1988.

DENNIS EDWARD GRAVES, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Commonwealth of Pennsylvania v. Dennis Edward Graves, No. 142 of 1985.

COUNSEL

Joseph E. Vogrin, III, Scott & Vogrin, for appellant.

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellee.

Judges MacPhail and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Barry dissents.

Author: Blatt

[ 112 Pa. Commw. Page 391]

Dennis Graves (appellant) appeals an order of the Court of Common Pleas of Allegheny County (trial court) which dismissed his appeal of a Department of Transportation (DOT) order suspending his operator's license for a period of one year pursuant to Section 1547(b)(2) of the Vehicle Code, 75 Pa. C.S. ยง 1547(b)(2) (refusal to submit to a chemical test).

On December 22, 1984, the appellant was stopped by an O'Hara Township Police Officer (Officer) for numerous traffic violations.*fn1 Upon detecting the odor of alcohol on the appellant's breath, the Officer administered a field sobriety test which the appellant failed. The Officer thereafter placed the appellant under arrest for driving under the influence of alcohol and requested that he take a breathalyzer test. The appellant refused to take the test and, on January 17, 1986, DOT notified him that his operator's license was suspended for one year. On appeal, and after a hearing de novo, the trial court dismissed the appeal, concluding that the appellant was properly informed by the Officer that, if he refused to take the test, "he could lose his license for one year." Reconsideration was denied and this appeal followed.

The appellant's sole contention on appeal is that the Officer's warning that he "could lose his license" was insufficient under Section 1547(b)(2).*fn2 DOT counters by

[ 112 Pa. Commw. Page 392]

    arguing that: 1) the appellant waived the issue of the adequacy of the warning which he received by not raising it before the trial court or in his notice of appeal to this Court;*fn3 2) the appellant, himself, admitted that the Officer's warning was that he "would" lose his license if he refused to take the breathalyzer test; and 3) the trial court inadvertently used the word "could," rather than "would."*fn4

Preliminarily, we note that a warning given pursuant to Section 1547(b)(2) to the effect that an individual's operator's license "could," rather than "would," be suspended upon a failure to submit to a breathalyzer test, is inadequate to convey the standard of certainty of the suspension that is mandated by the statute. Peppleman v. Commonwealth of Pennsylvania, 44 Pa. Commonwealth Ct. 262, 403 A.2d 1041 (1979). And, inasmuch as the trial court here found that the Officer warned the appellant that his license " could be suspended" upon his refusal to submit to a breathalyzer test, if that finding is supported by substantial evidence, then the trial court erred in dismissing the appeal.

A trial court, of course, is the ultimate finder of fact, and its credibility determinations may not be overturned on appeal. Department of Transportation, Bureau of Traffic Safety v. Dourte, 66 Pa. Commonwealth Ct. 511, 445 A.2d 264 (1982). Our scope of review is

[ 112 Pa. Commw. Page 393]

    limited to determining whether or not constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Department of Transportation, Bureau of Traffic Safety v. Emory, 91 Pa. Commonwealth Ct. 580, 498 A.2d 26 (1985).

At the de novo hearing before the trial court, the appellant admitted that "[he] was told that [he] was going to lose [his] license for a year" if he refused the chemical test. The Officer also testified, on direct examination before the trial court, that he had informed the appellant that he "would lose his license for one year" if he refused the test. The Officer, however, testified later on cross-examination that he warned the appellant that, if he refused the test, "he might lose his license." The trial court specifically rejected the appellant's testimony as not being credible, and, finding the Officer's testimony on cross-examination credible, held that the appellant was told that he "could" lose his license upon a refusal to take a chemical test.

We believe that the Officer's testimony, on cross-examination before the trial court, to the effect that he warned the appellant that he "might" lose his license, was synonymous with a warning that the appellant "could" lose his license upon a refusal to submit to a breathalyzer test. And we further believe that both words lack the specificity required to convey the mandatory nature of the suspension.

Accordingly, the Officer's testimony constitutes substantial evidence to support the trial court's finding that the appellant was actually warned that he "could" lose his license.

We will, therefore, reverse the order of the trial court and order that the appellant's operator's license be reinstated.

[ 112 Pa. Commw. Page 394]

Order

And Now, this 7th day of January, 1988, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is reversed.

Judge Barry dissents.

Disposition

Reversed.


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