Appeal from the Judgment of Sentence February 2, 1988 in the Court of Common Pleas of Cumberland County, Criminal, No. 172 Criminal 1987.
Richard F. Maffett, Jr., Harrisburg, for appellant.
Merle L. Ebert, Jr., Carlisle, for Com., appellee.
Cirillo, President Judge, and Olszewski and Montemuro, JJ. Olszewski, J., dissents with an opinion.
[ 377 Pa. Super. Page 383]
This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Cumberland County following Inocencio Muniz's conviction for driving under the influence of alcohol. We reverse.
While on routine patrol in the early morning hours of November 30, 1986, Officer David Spotts of the Upper Allen Township Police Department observed a vehicle positioned on the northbound berm of U.S. Route 15. The vehicle was
[ 377 Pa. Super. Page 384]
parked with its engine running, and the driver had activated its emergency flashers. Believing it to be a disabled vehicle, Officer Spotts stopped to offer assistance.
Officer Spott's investigation revealed two individuals in the front seat of the vehicle, the driver being later identified as Inocencio Muniz. When the patrolman asked if he could be of assistance, Muniz replied that he had merely stopped to urinate. At that point Officer Spotts detected a strong odor of alcohol emanating from Muniz's breath. He also observed that Muniz's eyes were glazed and bloodshot, his face appeared flushed, and he exhibited a rather poor command of his coordination skills. Officer Spotts then directed Muniz and his passenger to remain along the roadside until he was in a condition to operate his vehicle safely. Muniz readily acknowledged this request, and assured the officer that he would remain along the berm until he could drive safely.
As Officer Spotts was returning to his cruiser, he heard Muniz's vehicle start to pull away from the berm of the road and continue along Route 15. The patrolman quickly got back into his cruiser and pursued the errant motorist approximately one-half mile down the road where he activated his warning lights and pulled Muniz over. The officer then requested Muniz's license and registration cards. Muniz fumbled through his wallet, dropping several cards, and eventually gave the police officer his Social Security card and his U.S. Department of Agriculture farm labor card. After a second request, Muniz produced the proper identification. Officer Spotts then asked Muniz to step out of his automobile to perform several field sobriety tests.
Muniz was administered three commonly utilized field sobriety tests: the horizontal gaze nystagmus test, the "walk and turn" test, and finally, the "one leg stand" test. Muniz failed each of these tests. During the field sobriety tests, Muniz readily admitted that he had been drinking, that he was drunk, and that he could not perform the various tasks required because he was too inebriated. Muniz was then arrested and transported to the West Shore facility of the Cumberland County Central Booking Center
[ 377 Pa. Super. Page 385]
for processing. During the course of the processing at the Booking Center, Lisa Deyo, a caseworker at the center explained the Implied Consent Law, 75 Pa.C.S. § 1547. Muniz nevertheless refused to submit to an Intoxilyzer 5000 breath test. As standard operating procedure at the Booking Center, ...