Appeal from the order of the Court of Common Pleas of Bucks County, in the case of Commonwealth of Pennsylvania, Department of Transportation v. John Jones, Jr., No. 86-05191-09-6.
Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.
John Jones, Jr., appellee, for himself.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.
[ 120 Pa. Commw. Page 89]
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Bucks County (trial court), which reversed DOT's suspension of John J. Jones, Jr.'s (Appellee) driver's license for one year for refusing to submit
[ 120 Pa. Commw. Page 90]
to a blood alcohol test pursuant to section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b).
On May 10, 1986, Appellee was involved in a motor vehicle accident. A police officer (officer) arrived at the scene and observed Appellee complaining of injury. Medical personnel arrived and transported Appellee to a hospital. There, the officer read Appellee his Miranda rights, advised him of implied consent laws and requested that he submit to a blood alcohol test. Appellee refused the test. As a result of Appellee's refusal, DOT suspended his driving privileges for one year.
Appellee appealed to the trial court asserting that he had not been arrested prior to the request that he submit to the blood test. The trial court agreed with Appellee's assertion and found as a fact that Appellee had not been arrested prior to the chemical test request.*fn1 The trial court, accordingly, reversed the suspension. On appeal to this court,*fn2 DOT contends that the trial court's finding of fact is not supported by substantial evidence.
DOT has the burden of proving that a driver was placed under arrest for driving under the influence of alcohol. Gresh v. Department of Transportation, Bureau of Traffic Safety, 76 Pa. Commonwealth Ct. 483, 464 A.2d 619 (1983). Section 1547 requires that the driver be under arrest at the time chemical testing is
[ 120 Pa. Commw. Page 91]
refused. No magic words are required: "[I]t is only necessary that the driver be under the custody and control of the person effecting the arrest." Gresh, 76 Pa. Commonwealth Ct. at 487, 464 A.2d at 622 (1982). See Glass v. Department of Transportation, Bureau of Traffic Safety, 460 Pa. 362, 333 A.2d 768 (1975) (defining the physical act of arrest as "any act that indicates an intention to take [a ...