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JOHN RUSSELL SHAW v. COMMONWEALTH PENNSYLVANIA (01/19/89)

decided: January 19, 1989.

JOHN RUSSELL SHAW, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County, in the case of Commonwealth of Pennsylvania, Department of Transportation v. John Russell Shaw, No. 87-16318.

COUNSEL

Donald E. Havens, for appellant.

Donald H. Poorman, 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 Palladino concurs in the result only.

Author: Barbieri

[ 122 Pa. Commw. Page 637]

John Russell Shaw (Appellant) appeals an order of the Delaware County Court of Common Pleas dismissing

[ 122 Pa. Commw. Page 638]

    his appeal of a one-year suspension of his driver's license for failure to submit to a breath test pursuant to Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. ยง 1547(b).

On August 20, 1987, a vehicle driven by Appellant struck a parked police car from the rear. At a de novo hearing before the trial court on March 21, 1988, Officer Raffaele, of the Darby Borough Police Department, testified that he noticed a strong odor of alcohol upon opening Appellant's car door after the accident. He further testified that Appellant required assistance in exiting his vehicle. Officer Raffaele stated that Appellant twice refused to submit to a field sobriety test.

After being placed under arrest for driving under the influence of alcohol,*fn1 Appellant was advised of his Miranda rights.*fn2 Appellant was asked to submit to a breath test at the accident scene and refused.

Officer Raffaele then transported Appellant to the police station where he was asked three more times if he would submit to a breath test. Appellant refused even though Officer Raffaele informed him on each request, including the request at the accident scene, that a refusal would result in the loss of his driver's license for a period of one year.

Appellant testified that when he was asked to submit to a breath test at the police station, he asked to call his attorney but was not allowed to do so. Officer Raffaele testified that Appellant asked him to call the police chief which he refused to do. The officer further testified that he was positive that ...


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