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COMMONWEALTH PENNSYLVANIA v. MELVIN R. DERHAMMER (08/03/88)

decided: August 3, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
MELVIN R. DERHAMMER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County, in the case of Melvin R. Derhammer v. Commonwealth of Pennsylvania, Department of Transportation, No. 1782-C of 1986.

COUNSEL

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

No appearance for appellee.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 118 Pa. Commw. Page 365]

The Department of Transportation, Bureau of Traffic Safety (DOT) appeals an order of the Court of Common Pleas of Luzerne County (trial court) which sustained the appeal of Melvin R. Derhammer (Appellee) and reversed a one-year suspension of his motor vehicle operating privileges. We reverse.

On March 23, 1986, Appellee was involved in a one-vehicle accident in Kingston Township, Luzerne County. Appellee was injured in the accident*fn1 and was trapped in the vehicle for nearly an hour before being extricated. Appellee was loud and boisterous and physically resisted the attempts of rescue personnel. Appellee was transported to the hospital for treatment in the "trauma" room when, following a test of his blood, he

[ 118 Pa. Commw. Page 366]

    first became aware of a diabetic condition. While in the "trauma room," police officers asked Appellee to submit to a blood alcohol test. Appellee refused to submit to the test each of the four times he was asked. As a result of this refusal, DOT suspended Appellee's operating privileges for one year pursuant to section 1547 of the Vehicle Code, as amended, 75 Pa. C.S. § 1547.*fn2 Appellee has no recollection of the accident or his refusal to take the blood alcohol test.

Appellee appealed the suspension to the trial court which held that he was not physically able to make a conscious and knowing refusal to submit to the test. The trial court sustained the appeal and reversed the suspension. DOT appeals to this court*fn3 contending that there is no competent evidence to support the trial court's findings.

There is no dispute that DOT presented sufficient proof of the legal elements required to sustain the suspension.*fn4 Therefore, Appellee has the burden of proving

[ 118 Pa. Commw. Page 367]

    that he was physically incapable of making a knowing and conscious refusal. Schnitzer v. Commonwealth, 85 Pa. Commonwealth Ct. 38, 480 A.2d 388 (1984). In cases where a licensee has sustained injuries but does not suffer from an obvious inability to comply with the request to be tested, competent medical testimony that a knowing and conscious refusal could not be made is required to meet the licensee's burden of proof. Pierandozzi v. Commonwealth, 94 Pa. Commonwealth Ct. 215, 503 A.2d ...


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