Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. Christine Berta, No. S.A. 763 of 1987.
Melissa K. Dively, Assistant Counsel, with her, Harold H. Cramer, Assistant Counsel, and John L. Heaton, Chief Counsel, for appellant.
Stephen A. Zappala, Jr., Dattilo, Barry, Fasulo & Cambest, P.C., for appellee.
Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. This decision was reached prior to the resignation of Judge MacPhail. Judge McGinley concurs in the result. Dissenting Opinion by Senior Judge Kalish.
[ 120 Pa. Commw. Page 560]
This is an appeal*fn1 by the Department of Transportation, Bureau of Driver Licensing (Department) from an order of the Court of Common Pleas of Allegheny County which sustained the appeal of Christine Berta (Licensee) from an action of the Department suspending Licensee's operating privileges for one year for refusal to comply with the breathalyzer test requirement appearing in Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547.
The trial court found that a police officer had observed Licensee sitting in a vehicle parked in a restricted area. The officer exited his car and walked over to Licensee's vehicle. He asked Licensee to show him her operator's permit and vehicle registration. Licensee refused the officer's initial request and several subsequent requests. The officer then asked Licensee to step out of her vehicle and she refused. He then opened the door on the operator's side of Licensee's vehicle and forcibly removed Licensee from her vehicle. Licensee bit and kicked the officer and refused to comply with his orders. Once she was outside the vehicle the officer detected the odor of alcohol on her breath. Subsequently, Licensee
[ 120 Pa. Commw. Page 561]
was arrested for various offenses including driving while under the influence. Licensee was advised that she was under arrest for operating a motor vehicle while driving under the influence and was transported to the police station for purposes of conducting a breathalyzer test.
At the police station, Licensee was informed that the failure to take the breathalyzer test would result in the loss of her license for at least one year. Licensee then attempted to perform the breathalyzer test by blowing air into the machine but she did not blow a sufficient amount to cause a proper reading. Thus, Licensee's attempts to take the test were treated as refusals. On this basis the Department suspended her license. Licensee appealed to the common pleas court which concluded, based upon Licensee's demeanor, candor and frankness that Licensee had blown into the breathalyzer machine as hard as she could and, thus, had not refused to take the test. The trial court further found that the arresting officer did not have reasonable grounds for believing that Licensee was under the influence of alcohol even though this was not the basis of Licensee's appeal to the trial court. That court, however, sustained Licensee's appeal. This appeal by the Department followed.
Our scope of review is limited to determining whether the trial court committed an error of law or abused its discretion and whether its findings of fact are supported by competent evidence. Department of Transportation, Bureau of Traffic Safety v. Vairo, 9 Pa. Commonwealth Ct. 454, 308 A.2d 159 (1973). In a case involving the suspension of a motorist's operating privilege as a consequence of a refusal to submit to breathalyzer testing, the Department must prove that (1) the officer had reasonable grounds to believe that the motorist was driving under the influence (2) the motorist
[ 120 Pa. Commw. Page 562]
was arrested and was asked to submit to chemical testing (3) the motorist refused to submit to the testing and, where the issue is raised, that (4) the officer gave the motorist an adequate warning of the consequences of refusal. Department of Transportation, Bureau of Traffic Safety v. Sinwell, 68 Pa. Commonwealth Ct. 605, 450 A.2d 235 (1982). The only issues which are raised for our consideration are whether the police officer had reasonable grounds to believe that Licensee was driving under the influence, and whether the trial ...