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GERARD J. FIERST v. COMMONWEALTH PENNSYLVANIA (04/07/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 7, 1988.

GERARD J. FIERST, JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

115 Pa. Commw. 263.

COUNSEL

Guido A. DeAngelis, Esq., Pittsburgh, Pa., for appellant.

Michael J. Creighton, Esq., Pittsburgh, Pa., Harold H. Cramer, Asst. Counsel, Spencer A. Manthorpe, Chief Counsel, Harrisburg, Pa., for appellee.

Opinion by Senior Judge Kalish.

Author: Kalish

[ 115 Pa. Commw. Page 266]

Opinion by Senior Judge Kalish:

Gerard J. Fierst, Jr. (appellant), appeals from a de novo trial and order of the Court of Common Pleas of

[ 115 Pa. Commw. Page 267]

Allegheny County, which sustained the suspension of his operating privileges for refusing to submit to a breathalyzer test pursuant to section 1547 of the Vehicle Code (Code), 75 Pa. C. S. § 1547. We granted reconsideration of our prior decision, vacated our prior order, and now reverse the trial court's decision.

On June 15, 1985, appellant was operating his car when he was involved in an automobile accident in which he struck another vehicle.

The trial court found that the police officer "had reasonable grounds and probable cause . . . to arrest defendant for operating a vehicle . . . while under the influence of alcohol."

Our scope of review is limited to determining whether the trial court's findings were supported by competent evidence, whether an error of law was committed, and whether the trial court's opinion constituted an abuse of discretion. Department of Transportation, Bureau of Traffic Safety v. Ferrara, 89 Pa. Commonwealth Ct. 549, 493 A.2d 154 (1985).

The trial court stated in its opinion that at the time of the accident, the appellant was "in the car and was holding a bottle of beer." However, the record shows that when the police officer arrived at the scene, the appellant driver had left, and the only information that the police officer had received from witnesses was that appellant had been driving and the license number of the car. It was not until about one hour later that the police officer arrived at appellant's house and saw him at his house with a bottle of beer in his hand. The police officer noticed that appellant staggered and had the odor of alcohol. It was then that he was put under arrest for driving while intoxicated.

The propriety of suspension depends on whether the police officer had reasonable grounds to believe that the licensee was operating a motor vehicle while under the

[ 115 Pa. Commw. Page 268]

    influence of alcohol. Section 1547 of the Code, 75 Pa. C. S. § 1547. This means that viewing the facts and circumstances as they appeared at that time, a reasonable person in the position of the police officer could have concluded that the motorist was operating the vehicle while under the influence of alcohol. Department of Transportation v. Dreisbach, 26 Pa. Commonwealth Ct. 201, 363 A.2d 870 (1976).

We conclude that under these facts and circumstances a reasonable police officer could not conclude that there were reasonable grounds for believing that while driving, appellant was under the influence of alcohol. Accordingly, we reverse the order of the trial court.

Order

Now, April 7, 1988, the order of the Court of Common Pleas of Allegheny County, in No. SA 1305 of 1985, dated January 29, 1986, suspending appellant's driver's license, is reversed.

19880407

© 1998 VersusLaw Inc.



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