Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Commonwealth of Pennsylvania v. Patrick E. Cavanaugh, No. S.A. 344 of 1985.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, Morey Myers, General Counsel, for appellant.
J. Kerrington Lewis, with him, P. Andrew Diamond, Lewis and Stockey, for appellee.
Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Memorandum Opinion by Judge McGinley.
[ 115 Pa. Commw. Page 399]
The Commonwealth of Pennsylvania, Department of Transportation (DOT) appeals the order of the Court of Common Pleas of Allegheny County (trial court) which sustained the appeal of Patrick E. Cavanaugh from a one-year suspension of his operator's license pursuant to Section 1547(b) of the Vehicle Code (Code), 75 Pa. C. S. § 1547(b) for refusal to submit to a breathalyzer test.
Cavanaugh's suspension arose from activities which occurred on January 13, 1985. Officer Edward Wisniowski, a police officer employed by the City of Pittsburgh, testified that he observed Cavanaugh's vehicle back into the front of another vehicle while attempting to park. The officer approached Cavanaugh's vehicle and asked Cavanaugh to produce his identifications. The officer observed that Cavanaugh was swaying as he stepped out of the vehicle, that he was belligerent and that he smelled of alcohol. The officer also testified that there was an open can of beer on the front seat which still had a few drops in it. The officer testified that he arrested Cavanaugh for operating a motor vehicle while under the influence of alcohol. Cavanaugh was taken into custody, placed in a police wagon and taken to the City of Pittsburgh Public Safety Building where he initially agreed to submit to a breathalyzer test. The officer also testified that Cavanaugh then objected to the test and became uncooperative. Subsequently a notation of willful refusal to submit to the test was recorded. DOT suspended Cavanaugh's operating privilege for one year pursuant to Section 1547.
Cavanaugh appealed the suspension to the Court of Common Pleas of Allegheny County. The trial court sustained the appeal finding that DOT did not fulfill the conditions of Section 1547(b)(1). It found DOT failed to prove that the officer had reasonable grounds to believe
[ 115 Pa. Commw. Page 400]
Appellee was driving while intoxicated and failed to prove Appellee was arrested.
On appeal DOT argues that competent evidence was presented to prove that the officer had reasonable grounds to believe that Cavanaugh was operating a vehicle while intoxicated and that Cavanaugh was arrested.*fn1
To sustain a license suspension under Section 1547 (b), the Commonwealth bears the burden of proving that the driver (1) was placed under arrest for driving while under the influence of alcohol, and that the arresting officer had reasonable grounds to believe that the operator was driving while under the influence of alcohol; (2) was requested by the officer to submit to a breathalyzer test; (3) refused to do so; and (4) was warned by the officer that the department would suspend his driving privilege if he refused to take the test. Department of Transportation, Bureau of Traffic Safety v. Sinwell, 68 Pa. Commonwealth Ct. 605, 450 A.2d 235 (1982). The trial court found that ...