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ALBERT STEPHEN OSTRANDER v. COMMONWEALTH PENNSYLVANIA (05/19/88)

decided: May 19, 1988.

ALBERT STEPHEN OSTRANDER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County, in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, No. 86-9160-13-6.

COUNSEL

Walter D. Campbell, for appellant.

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

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 116 Pa. Commw. Page 244]

Albert Ostrander (Appellant) appeals from an order of the Court of Common Pleas of Bucks County which dismissed his driver's license suspension appeal.

[ 116 Pa. Commw. Page 245]

The facts as found by the trial court following the hearing de novo on Appellant's statutory appeal may be summarized as follows. Appellant was arrested by Officer McGuigan of the Bristol Township Police for driving under the influence of alcohol on October 23, 1986. Officer McGuigan requested that Appellant submit to a breathalyzer test. Appellant consented to the original test, which was administered by Officer Blane. This first test gave a reading of .23. Officer Blane requested a second breath sample and testified that Appellant refused for approximately 45 minutes, after which he took a second test. This test gave a reading of .20. Because the test results were not within .02 of each other, Officer Blane requested a third test. Appellant refused. His license was subsequently suspended by the Department of Transportation (Department) for refusal to submit to chemical testing under the provisions of Section 1547(b)(2) of the Vehicle Code, 75 Pa. C. S. § 1547(b)(2).

Appellant raises three issues for our review: 1) that the Department failed to prove that Appellant had been warned of the consequences of a refusal to submit to testing, 2) that under our Supreme Court's plurality decision in Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987), Appellant was not required to submit to a second chemical test and 3) that Appellant's refusal resulted from misleading statements by the police officers regarding the necessity of a third test under local police regulations. We will address these issues in order, being mindful that our scope of review is limited to determining whether the findings of the trial court are supported by competent evidence, whether erroneous conclusions of law have been made, or whether the decision of the trial court demonstrates a manifest abuse of discretion. Department of Transportation, Bureau of Driver Licensing v. Viglione, 113 Pa. Commonwealth Ct. 198, 537 A.2d 375 (1988).

[ 116 Pa. Commw. Page 246]

Appellant's first argument is that, because the Department presented no testimony to establish that he was warned of the consequences of his refusal, it failed to prove all of the elements of its case. It is well settled that in order to establish a prima facie case of a Section 1547(b) suspension, the Department must prove: 1) that the defendant was placed under arrest upon the charge of driving while intoxicated, and the arresting officer had reasonable grounds to believe the defendant was driving while intoxicated; 2) that he was requested to submit to a breathalyzer test; and 3) he refused to do so. Where the issue is raised, the Commonwealth must also establish that it fulfilled its duty under Section 1547(b) (2) of warning a driver that his operating privileges will be suspended or revoked upon refusal to submit to a chemical test. Department of Transportation, Bureau of Traffic Safety v. Sinwell, 68 Pa. Commonwealth Ct. 605, 606-07, 450 A.2d 235, 236 (1982). Here, the trial court specifically found that Appellant did not raise this issue in his Petition for Appeal or before the court at his hearing, and we can find no indication of his having done so. Therefore, we must conclude, as did the trial court, that Appellant has waived consideration of that issue.

Appellant next contends that the facts of this case are governed by McFarren. In McFarren, our Supreme Court held that, if more than one chemical test is requested, the police officer must offer sufficient evidence to establish the reasonableness of such a request. However, as the Department points out, the incidents giving rise to the facts in McFarren arose prior to the promulgation of the regulations found at 67 Pa. Code § 77.24, and the Court ...


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