Appeal from Common Pleas Court, Berks County; Honorable Elizabeth Ehrlich, Judge.
Peter David Maynard, Esq., Wyomissing, Pa., for appellant.
J. Matthew Wolfe, ASST. COUNSEL, Philadelphia, Pa., Harold H. Cramer, ASST. COUNSEL, John L. Heaton, CHIEF COUNSEL, Harrisburg, Pa., for appellee.
Honorable John A. MacPHAIL, Judge, Honorable Joseph T. Doyle, Judge, Honorable Emil E. Narick, Senior Judge
This is an appeal by John Carmen Marmo (Licensee) from an order of the Court of Common Pleas of Berks County which affirmed the suspension of Licensee's motor vehicle privileges by the Department of Transportation (DOT) for one year pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. § 1547. We reverse.
On December 23, 1983, Licensee was involved in an automobile accident. Officer Robert Dunn responded to the scene, and found Licensee staggering about, with a strong odor of alcohol on his breath, glassy eyes, and very argumentative. As a result, the officer placed Licensee under arrest for driving under the influence of alcohol. The following is the sequence of events as recounted from the direct testimony of Officer Dunn, the only witness called by DOT to establish its case:
I finally handcuffed him and put him in the police car and transported him to the Mt. Penn Police Department, sat him in front of the instrument. I again told him he was under arrest for DUI.
Q: Did you say anything about the informed consent law?
A: I said, "Don't forget, if you don't take the test, you will lose your license for a year." So then he had to go to the bathroom and again I told him about taking the test and he said now he wanted to go to the hospital. At the hospital he was asked to take a [blood] test. He said he would. The doctor in the emergency read him the form, and he did not take the doctor's word for it. He wanted take the test and he said he wasn't finished reading it, so we waited a couple more minutes, asked if he was ready to take the test and he said he still hadn't finished reading it. I considered it a refusal.
DOT thereupon suspended Licensee's driver's license, pursuant to Section 1547 of the Code, and Licensee appealed to the court of common pleas. That court sustained DOT's suspension of Licensee's operating privileges stating that Licensee's conduct at the police station constituted a refusal to submit to chemical testing.
Licensee timely filed an appeal to this Court. Although Licensee deposited one-half of the estimated charge for the transcript with the County's Prothonotary, he failed to obtain the required order directing the court reporter to transcribe the notes of testimony. The matter lay dormant until the trial court forwarded a memorandum opinion on October 1, 1986 suggesting that the appeal be dismissed for failure of Licensee to order the transcript in accordance with Pa. R.A.P. 1911(a). This Court, by order dated October 20, 1986, directed Licensee to comply with Pa. R.A.P. 1911(a), or suffer dismissal of his appeal. Licensee promptly complied with that order. The Prothonotary of Berks County then transmitted the record to this Court, without the trial court having had an opportunity to file an opinion pursuant to Pa. R.A.P. 1925. This Court then remanded the ...