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WALLACE D. MENOSKY v. COMMONWEALTH PENNSYLVANIA (12/05/88)

decided: December 5, 1988.

WALLACE D. MENOSKY, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Court of Common Pleas of Allegheny County, in the case of Commonwealth of Pennsylvania v. Wallace D. Menosky, No. S.A. 1027 of 1986.

COUNSEL

H. Barry Bier, for appellant.

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

President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Colins, Palladino and McGinley. Opinion by Judge Doyle. Judge MacPhail did not participate in the decision in this case.

Author: Doyle

[ 121 Pa. Commw. Page 465]

This is an appeal by Wallace D. Menosky (Licensee) from an order of the Court of Common Pleas of Allegheny County which affirmed the action of the Department of Transportation (DOT) in suspending Licensee's operating privileges for one year for refusal to submit to a breathalyzer test pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. ยง 1547(b).

The trial court found that Licensee's van was found at the scene of an accident on March 20, 1986 by police officers after they received two radio calls. After ascertaining (by a registration check) that Licensee owned the van that was up against a telephone pole, the officers went to his home to question him. Upon arrival at Licensee's home shortly thereafter, the officer who testified stated:

[W]e were led into his house by his son. . . . He came into the living room in his bathrobe. He immediately started yelling at us. We tried to explain to him that we were investigating the accident, the van in the pole. We tried to explain to him that you are not supposed to leave the scene of an accident. And he said: it wasn't an accident, I just hit a pole.

Mr. Menosky had a very strong odor of alcohol on him. His eyes were bloodshot. He was swaying back and forth.

We told him that we were placing him under arrest for drunk driving, to take him downtown for the Breathylizer [sic]. He became very abusive, yelling and swearing at us and refused to go. We had handcuffed him.

[ 121 Pa. Commw. Page 466]

And when we were leaving we again told him that he was under arrest for drunk driving, that we were taking him downtown for a Breathylizer [sic], at which time he said he wasn't taking any test. On the way to town he kept talking and saying that he wasn't in an accident, he just hit a pole. He paid some kids some money to pull his bumper out so that he could park his van up there.

Although asked to take the test at the Public Safety Building and warned that if he refused to do so it would result in the suspension of his operating privileges for one year, Licensee again refused to submit to the test. DOT, accordingly, suspended his license and an appeal to the trial court followed. Subsequent to ...


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