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GLORIA MCKNIGHT v. COMMONWEALTH PENNSYLVANIA (11/09/88)

decided: November 9, 1988.

GLORIA MCKNIGHT, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Department of Transportation v. Gloria McKnight, No. 8707-1629.

COUNSEL

Irene H. Cotton, for appellant.

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

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge MacPhail did not participate in the decision in this case.

Author: Barbieri

[ 121 Pa. Commw. Page 29]

Gloria McKnight appeals from an order of the Philadelphia County Court of Common Pleas, affirming a one-year suspension of her operating privileges imposed by the Department of Transportation (DOT) for refusal to submit to a breath test, pursuant to Section 1547(b)(1) of the Vehicle Code (Code).*fn1

On May 17, 1987, Officer Mazzei of the Philadelphia Police Department, arrived at the scene of an accident where McKnight's car had collided with a parked car. Officer Mazzei testified that upon arriving at the scene, a witness pointed to McKnight and informed him that she had been driving the car. The officer testified further that McKnight could hardly walk, was incoherent and had the odor of alcohol on her breath. Officer Mazzei proceeded to place McKnight under arrest for driving under the influence of alcohol despite the protests of McKnight's neighbor Mrs. Selby who claimed that she and not McKnight was the driver. Mrs. Selby's son who was also in the car, testified that he too informed Officer Mazzei that his mother and not McKnight had been driving the car.

On the night of the accident, McKnight had been at home visiting with her cousin. Both Mrs. Selby and her

[ 121 Pa. Commw. Page 30]

    son testified that McKnight had been drinking and asked Mrs. Selby to drive her cousin home. Mrs. Selby testified that while making a turn at an intersection, a pedestrian forced her to swerve abruptly and hit the parked car. McKnight became excited and demanded her keys which Mrs. Selby stated she gave her prior to the arrival of the police officer.

After McKnight was arrested, she was transported to the police station where she was asked to submit to a breath test. Despite being warned that she would lose her operating privileges for one year if she did not submit to such testing, McKnight refused.

By notice dated June 11, 1987, DOT suspended McKnight's operating privileges for one year and McKnight appealed. At the de novo hearing on September 29, 1987, the trial court found that McKnight was not the driver of the vehicle at the time of the accident. However, the trial court denied the appeal, holding that the arresting officer had reasonable grounds to believe McKnight had been driving while under the influence of alcohol.*fn2

On appeal to this Court, McKnight contends that Section 1547 of the Code only applies to drivers rather than passengers and since the trial court found she was a passenger, ...


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