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 Driver Licensing v. Sylvester R. Griffith, No. 1463-C of 1987.
Harold H. Cramer, Assistant Counsel, with him, John L. Heaton, Chief Counsel, for appellant.
Joseph V. Kasper, with him, John R. Sobota, for appellee.
President Judge Crumlish, Jr., and Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.
[ 116 Pa. Commw. Page 197]
The Department of Transportation (DOT) appeals an order of the Court of Common Pleas of Luzerne County reversing the one year license suspension imposed upon Sylvester D. Griffith (appellee) after determining that the injuries sustained by appellee in an accident rendered him unable to knowingly and consciously refuse to submit to a breathalyzer test. See Section 1547(b) of the Vehicle Code, 75 Pa. C. S. § 1547(b). We reverse.
On February 21, 1987, appellee was involved in a two vehicle collision. A police officer called to the scene of the accident noted that appellee was injured but that he refused offers of medical attention. Noting the odor of alcohol about appellee and his difficulty in locating his license and registration card and in performing certain physical tasks, the officer placed appellee under arrest, requested that he submit to a breathalyzer test and advised him that his refusal to do so would result in a one year suspension of his driver's license. Appellee did refuse the test and DOT's suspension of his driving privileges followed.
Appellee appealed the suspension to the trial court, which considered the following evidence in concluding that appellee was unable to knowingly and consciously refuse the breathalyzer test as a result of the injuries he sustained in the accident: (1) the appellee's statements, specifically found credible by the trial court, that the collision was violent, that he could not recall the accident or subsequent events until the following morning when he requested that he be taken to the hospital, there receiving treatment for three broken ribs; (2) the testimony of appellee's brother-in-law who was a passenger in the vehicle, his sister-in-law and wife, all of whom stated that appellee was dazed and incoherent following the accident and (3) photographs of appellee's car, revealing,
[ 116 Pa. Commw. Page 198]
in the trial court's estimation, severe damage to the passenger side of the car and to the dashboard.
When the motorist does not suffer from any obvious inability to comply with an officer's request to submit to a blood alcohol test, a finding that he or she was physically unable to make a knowing and conscious refusal must be supported by competent medical evidence. Department of Transportation, Bureau of Driver Licensing v. Norton, 103 Pa. Commonwealth Ct. 78, 519 A.2d 1085 (1987). Whether a motorist has satisfied this burden is a factual determination to be made by the trial court. Waigand v. Commonwealth, 68 Pa. Commonwealth Ct. 541, 449 A.2d 862 (1982). A motorist's bare assertion of physical incapacity, absent any supportive medical evidence, is insufficient to meet the requisite burden. Department of Transportation, Bureau of Traffic Safety v. Day, 93 Pa. Commonwealth Ct. 49, 500 A.2d 214 (1985). Our scope of review in cases of this nature is to determine whether the findings of fact are supported by competent evidence and whether errors of law have been committed. Department of Transportation, Bureau of Traffic Safety v. Gordon, 95 Pa. Commonwealth Ct. 546, 505 A.2d 1125 (1986).
There is no dispute in the instant matter that DOT presented sufficient evidence of the legal elements required to sustain the suspension, see id., and the sole issue presented is whether appellee sustained his burden of proving that he was physically incapable of making a knowing and conscious refusal. DOT asserts that appellee's failure to adduce medical proof of his purported physical incapacity precludes a finding that he, in fact, had carried such burden. We agree. After thoroughly reviewing the record sub judice, we cannot conclude that ...