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PETER ROBERT HANUSZCZAK v. COMMONWEALTH PENNSYLVANIA (02/29/88)

decided: February 29, 1988.

PETER ROBERT HANUSZCZAK, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Commonwealth of Pennsylvania v. Peter Hanuszczak, No. 3409, June Term, 1985.

COUNSEL

Sheldon C. Jelin, for appellant.

Harold H. Cramer, Assistant Counsel, with him, John L. Heaton, Chief Counsel, for appellee.

Judges MacPhail, Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 114 Pa. Commw. Page 85]

Peter Robert Hanuszczak (Appellant) appeals an order of the Philadelphia County Court of Common Pleas denying an appeal of a Department of Transportation (Department) order suspending Appellant's operating privilege for one year pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C. S. ยง 1547(b). For the reasons set forth below, we vacate the trial court's order and remand for additional findings.

On May 5, 1985, Appellant's vehicle was observed by a Philadelphia police officer weaving in and out of traffic, without signaling, at an excessive rate of speed. When the officer pulled Appellant over, he observed that Appellant smelled of alcohol and was uncoordinated. Appellant was placed under arrest for driving under the influence and transported to the police station.

According to the testimony before the trial court, Appellant was asked to take a breathalyzer test and was told that if he refused he would lose his driver's license. Notes of Testimony (N.T.) at 12. Appellant refused the breath test, and his refusal was witnessed by two officers. N.T. at 13.

As a result of Appellant's refusal to submit to the breathalyzer, the Department suspended his operating privilege, to be effective June 24, 1985. Appellant appealed the suspension to the court of common pleas, and a de novo hearing was held November 27, 1985. By order entered March 21, 1986, the trial court denied Appellant's appeal and reinstated the Department's suspension order. Appellant's appeal of this order is now before us for disposition.*fn1

Appellant's first argument on appeal is that he did not receive proper warning of the consequences of his

[ 114 Pa. Commw. Page 86]

    refusal to submit to the breathalyzer. Of course, to sustain the suspension of Appellant's operating privilege, the Department must prove that he 1) was placed under arrest for driving while under the influence of alcohol; 2) was asked to submit to a breathalyzer test; 3) refused to do so; and 4) was specifically warned that his license would be revoked if he refused to take the test. Waigand v. Commonwealth, 68 Pa. Commonwealth Ct. 541, 449 A.2d 862 (1982).

Appellant argues that there was insufficient evidence before the trial court to establish that he received the warnings because the breathalyzer operator had no recollection of Appellant, personally, and no independent recollection of warning ...


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