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COMMONWEALTH PENNSYLVANIA v. JAMES GARLAN (12/01/88)

decided: December 1, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
JAMES GARLAN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County, in the case of Commonwealth of Pennsylvania, Bureau of Driver Licensing, Department of Transportation v. James Garlan, No. 5254-C of 1987.

COUNSEL

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

Raymond J. Sobota, for appellee.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins. Judge MacPhail did not participate in the decision in this case.

Author: Colins

[ 121 Pa. Commw. Page 401]

The Department of Transportation, Bureau of Driver Licensing (Department), appeals an order of the Luzerne County Court of Common Pleas (trial court) which set aside the suspension of James Garlan's driving privileges. The Department imposed the one year suspension as a result of Garlan's refusal to submit to a blood alcohol test pursuant to Section 1547(b) of the Vehicle Code (Code), as amended, 75 Pa. C.S. § 1547(b). Following a de novo hearing, the trial court found that as a result of injuries sustained in an automobile accident, on June 25, 1987, Garlan did not knowingly and consciously refuse to submit to the blood test. We reverse.

Our scope of review in this case is limited to determining whether the trial court's decision is supported by competent evidence, whether there has been an erroneous

[ 121 Pa. Commw. Page 402]

    conclusion of law, or whether the trial court's decision demonstrates a manifest abuse of discretion. Department of Transportation, Bureau of Driver Licensing v. Cochrane, 114 Pa. Commonwealth Ct. 185, 538 A.2d 614 (1988).

In order to sustain a suspension under Section 1547 of the Code, the Commonwealth must prove that the driver: (1) was placed under arrest for driving while under the influence of alcohol; (2) was requested to submit to a chemical test; (3) refused to do so; and (4) was warned that his license would be suspended if he refused. Capozzoli Appeal, 63 Pa. Commonwealth Ct. 411, 437 A.2d 1340 (1981). Once the Commonwealth establishes these four elements, the burden then shifts to the appellant to prove by competent evidence that he was incapable of making a knowing and conscious refusal. Id.

In the instant matter, the testimony of Officer Ronald Jarzenbovicz, of the Hanover Township Police, indicates that the Commonwealth met its burden of proof under Section 1547 of the Code. The officer testified that on the evening of June 25, 1987, he was dispatched to the scene of a near head-on collision in which Garlan was involved. Jarzenbovicz testified that upon his arrival at the scene he immediately inquired of the bystanders whether an ambulance had been summoned, and then proceeded to check the passengers of the collided vehicles. Jarzenbovicz first checked Garlan's vehicle. The officer testified that he could see that Garlan sustained head injuries from the accident but noted that the bleeding was already slowing. The officer further opined that as he spoke to Garlan he detected a strong odor of alcohol and that Garlan's eyes were glassy. After checking on the others, Jarzenbovicz returned to Garlan's vehicle and asked Garlan to produce his license, owner's card and insurance card. Garlan allegedly

[ 121 Pa. Commw. Page 403]

    had difficulty in removing the requested ...


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