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CALVIN A. ECKROTE v. COMMONWEALTH PENNSYLVANIA (03/28/88)

decided: March 28, 1988.

CALVIN A. ECKROTE, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County, in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, No. 1628-C of 1986.

COUNSEL

Sandor Yelen, with him, Ronald P. Sweeda, for petitioner.

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

Judges Craig, Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 115 Pa. Commw. Page 19]

Calvin E. Eckrote, appellant, seeks review of an order by Judge Brominski of the Court of Common Pleas of Luzerne County which affirmed a one-year suspension of his motor vehicle operator's license by the Department of Transportation pursuant to section 1547 of the Vehicle Code, 75 Pa. C. S. ยง 1547, for refusal to take a breathalyzer test.

A salient issue is the competence of testimony by a district justice impugning the character and reliability of a police officer.

In the de novo proceeding upon appeal in the common pleas court, Officer Whitaker testified that he observed that Eckrote drove in an erratic manner and nearly collided with a pole and wall. Upon stopping the vehicle and requesting identification, Officer Whitaker observed that Eckrote's speech was slurred, that his eyes were glassy, and that he was fumbling through the cards contained in his wallet. The officer administered three field tests to Eckrote of which, according to the officer, Eckrote refused to take the first test and failed the other two. The officer informed Eckrote that he was going to be placed under arrest, gave him his Miranda warnings, and handcuffed and transported Eckrote to the state police barracks.

[ 115 Pa. Commw. Page 20]

Trooper Sherrick testified that, at the barracks, he warned Eckrote that, if he did not submit to a breath test, his operating privileges would be suspended for one year. Trooper Sherrick then attempted to administer the breath test to Eckrote, but Eckrote refused, claiming that he was drunk and he would not take the test.

Eckrote, testifying on his own behalf, recalled being taken to the state police barracks, being asked to take a test, and refusing. He stated that he was not informed by anyone as to the consequences of his refusal and denied informing Trooper Sherrick that he was drunk. He further stated that he was not driving his vehicle in an erratic manner when Trooper Whitaker initially stopped him.

Eckrote also submitted the testimony of District Justice Olzinski, who appeared pursuant to a court of common pleas subpoena; he testified as to the reputation of Officer Whitaker for truth and veracity and also as to alleged bias which the officer had against Eckrote and his family. The trial court admitted the testimony subject to subsequent review.

The trial judge, in issuing his final order dismissing Eckrote's appeal of the department's action, concluded that he should disregard the testimony of District Justice Olzinski pursuant to Rule 2 of the ...


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