Appeal from the Order of the Court of Common Pleas of Fayette County, in the case of Commonwealth of Pennsylvania v. James Daniel Orlando, No. 782 of 1986, G.D.
Harold H. Cramer, Assistant Counsel, with him, Christopher J. Clements, Assistant Counsel, John L. Heaton, Chief Counsel, for appellant.
Carolyn W. Maricondi, for appellee.
Judges Barry, Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry. Judge Colins dissents.
[ 114 Pa. Commw. Page 442]
The Department of Transportation (DOT) appeals an order of the Court of Common Pleas of Fayette County which sustained the appeal of James Daniel Orlando (Orlando) and reversed DOT's one year suspension of his driver's license.
On February 22, 1986, Orlando was placed under arrest, after being stopped for erratic, high-speed driving and failing several field sobriety tests, for suspicion of driving while intoxicated. Orlando was taken to a police station for chemical testing. The arresting officers informed Orlando that, if he refused to submit to a breath test, his license would automatically be suspended for one year. The arresting officers also instructed Orlando not to place anything into his mouth "for a period of 20 minutes prior to the test or it would negate the results of the test." The arresting officers testified that five seconds prior to the performance of the test, Orlando placed a pinch of chewing tobacco between his cheek and gums. Orlando denies being warned but admits to placing the chew in his mouth immediately before the test. Orlando's actions were considered by the officers as a refusal to submit to chemical testing.
DOT notified Orlando that his license would be suspended for one year as a result of this action. Orlando appealed this decision. The trial court, in sustaining the
[ 114 Pa. Commw. Page 443]
appeal, opined that, although Orlando was told not to place anything into his mouth, he was not informed that this action would be considered a refusal. This appeal followed.
Our scope of review where the trial court has reversed a license suspension for refusing to submit to a chemical blood-alcohol test is limited to determining whether the findings of that court are supported by competent evidence, whether there has been an erroneous conclusion of law, or whether the trial court's decision demonstrates a manifest abuse of discretion. Department of Transportation, Bureau of Driver Licensing v. Rogers, 110 Pa. Commonwealth Ct. 453, 532 A.2d 935 (1987).
DOT alleges that anything substantially less than an unqualified, unequivocal assent to take a chemical test will constitute a refusal within the meaning of Section 1547 of the Vehicle Code, as amended, 75 Pa. C. S. § 1547(a) (Code) and that the ...