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COMMONWEALTH PENNSYLVANIA v. RONALD EARL FLEMING (09/09/88)

decided: September 9, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
RONALD EARL FLEMING, APPELLEE



Appeal from the Order of the Court of Common Pleas of Fayette County, in the case of Ronald Earl Fleming v. Commonwealth of Pennsylvania, Department of Transportation, No. 1057 of 1986, G.D.

COUNSEL

Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.

Donald J. McCue, McCue & Watson, for appellee.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 119 Pa. Commw. Page 344]

The Department of Transportation, Bureau of Driver Licensing (DOT) appeals an order of the Court of Common Pleas of Fayette County reinstating the driving privileges of Ronald Earl Fleming (Appellee). DOT had suspended Appellee's driving privileges for a period of one year for his refusal to submit to a blood alcohol test in violation of Section 1547(b) of the Vehicle Code, 75 Pa. C.S. ยง 1547(b). We affirm.

The trial court found that, on April 12, 1986, Appellee was arrested by Trooper William Phillips (Trooper Phillips) for driving under the influence of alcohol. After obtaining Appellee's consent to submit to a breathalyzer

[ 119 Pa. Commw. Page 345]

    test, Trooper Phillips learned that the machine was out of service. As a result, Trooper Phillips transported Appellee to Uniontown Hospital and required him to submit to a blood alcohol test. The record shows that Appellee repeatedly stated his willingness to submit to a breathalyzer test, but he adamantly refused to submit to the blood test. Appellee testified that in the past he had received extensive skin grafts on both arms due to an industrial accident and he refused the blood alcohol test because he feared having the skin grafts punctured. Trooper Phillips warned Appellee that his refusal to submit to the blood alcohol test would result in an automatic suspension of his driving privileges.

The trial court found that Trooper Phillips' demand of Appellee to submit to the blood alcohol test was unreasonable in light of medical risks to Appellee from drawing blood and the existence of alternative methods of testing which posed no such risk. Accordingly, the trial court reinstated Appellee's driving privileges, and this appeal followed.

In the instant matter, there is no question that the Commonwealth has met its initial burden for sustaining a license suspension pursuant to Section 1547.*fn1 Where

[ 119 Pa. Commw. Page 346]

    the Commonwealth has proven its prima facie case for a license suspension, the burden then shifts to the driver to show by competent evidence that he or she was physically unable to take the test, or that he or she was not capable of making a knowing and conscious refusal. Department of Transportation, Bureau of Traffic Safety v. Cassidy, 103 Pa. Commonwealth Ct. 582, 521 A.2d 59 (1987). Further, questions of credibility and the resolution of testimonial conflicts are for the common pleas court. Phillips v. Commonwealth, 84 Pa. Commonwealth Ct. 217, 478 A.2d 958 (1984).

The trial court received conflicting testimony on the issue of whether or not Appellee notified, or attempted to notify, Trooper Phillips of his obvious, physical impairment upon his arrest. At the hearing, Trooper Phillips testified as follows:

Q. Trooper, did he give you any reason for refusing the blood test?

A. Not to my recollection.

Q. Did he indicate to you that he had been in an accident prior to this occasion, that his arms were burned and he could not submit to a blood test?

A. I don't recall that, no.

Q. Did Mr. Fleming appear to be injured?

A. No, ma'am.

Q. Did he ask to see a ...


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