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COMMONWEALTH PENNSYLVANIA v. ANTHONY J. SHINE (03/21/88)

decided: March 21, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
ANTHONY J. SHINE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Monroe County, in case of Anthony J. Shine v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, No. 132 -- 1985 Civil.

COUNSEL

Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, and John L. Heaton, Chief Counsel, for appellant.

Arthur L. Zulick, Muth and Zulick, for appellee.

Judges Colins and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 114 Pa. Commw. Page 524]

The Department of Transportation, Bureau of Driver Licensing (Department) appeals an order of the Court of Common Pleas of Monroe County which sustained the appeal of Anthony J. Shine (appellee) from the twelve-month suspension of his operating privilege pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C. S. ยง 1547 (refusal to submit to blood alcohol test).

On March 17, 1985, appellee was involved in a two vehicle motor accident. Upon arriving at the scene of

[ 114 Pa. Commw. Page 525]

    the accident, a state trooper was informed that appellee was the driver of one of the vehicles. Appellee had suffered from facial injuries and was transported to the Pocono Hospital by ambulance. After investigating the accident, the trooper went to the hospital to question appellee. Upon arriving at the hospital, the trooper was informed that due to the seriousness of appellee's facial injuries, he would be unable to submit to a chemical test of breath. The trooper then requested that appellee submit to a blood test, or his license would be suspended for one year. Appellee refused to submit to the blood test due to an aversion to needles. However, he did state that he would be willing to submit to a breath test. After the refusal, the trooper stated to appellee that he would receive a summons on the criminal charges at a later date.

The Department, by official notice dated April 12, 1985, informed appellee that his operating privileges were being suspended for his refusal to submit to a chemical test. After an October 23, 1985, de novo hearing, the trial court, in its November 19, 1985, order sustained appellee's appeal on the basis that he had not been sufficiently placed under arrest. It is the November 19, 1985, order of the trial court that the Department appeals to this Court.

Our review in a driver's license suspension case where the matter has been heard de novo is limited to determining whether the common pleas court based its findings of fact upon substantial evidence or committed an error of law. Sheakley v. Department of Transportation, 99 Pa. Commonwealth Ct. 328, 513 A.2d 551 (1986).

In order to support the suspension of one's license under Section 1547 of the Code, the Department must prove that the driver involved: (1) was placed under arrest while driving under the influence of alcohol, and that ...


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