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ROBERT WAYNE HENDERSON v. COMMONWEALTH PENNSYLVANIA (01/19/89)

decided: January 19, 1989.

ROBERT WAYNE HENDERSON, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Franklin County, in the case of Department of Transportation, Commonwealth of Pennsylvania v. Robert Wayne Henderson, Miscellaneous Docket Volume Z, Page 93.

COUNSEL

Robert W. Henderson, appellant, for himself.

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

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 123 Pa. Commw. Page 2]

Robert W. Henderson (Appellant) appeals from a decision of the Court of Common Pleas of Franklin County which sustained the one-year suspension of Appellant's operator's license by the Department of Transportation (DOT) pursuant to Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. ยง 1547(b).*fn1

[ 123 Pa. Commw. Page 3]

On October 7, 1987, at approximately 1:10 a.m., Appellant was observed operating his vehicle without lights for three and a half blocks, drifting back and forth across two lanes of travel and changing lanes without signaling. Consequently, the police officer pulled Appellant over and requested Appellant's license and owner's card. The police officer noticed that Appellant's eyes were glassy, his suit appeared to be slept in and his breath smelled of alcohol. Subsequently, Appellant was arrested, requested to take a field sobriety test, refused and was then transported to the police station and requested to take a blood test. Appellant refused to take the test and was then advised of the consequences of his refusal whereupon Appellant requested to speak to an attorney.*fn2 As a result of this refusal, Appellant's license was suspended.

[ 123 Pa. Commw. Page 4]

On appeal from the suspension, the trial court found that the warning given to Appellant was improper because it was not issued until after he refused to take the test, but concluded that the defect was cured by a "post-warning opportunity" to assent.*fn3 The trial court relied upon this Court's decision in Jackson v. Commonwealth of Pennsylvania, 97 Pa. Commonwealth Ct. 602, 510 A.2d 396 (1986), which held that an untimely warning can be cured by a "post-warning opportunity" to assent. The licensee in Jackson failed to change his mind and assent to testing once he received the untimely warning, and his suspension was thus upheld on appeal. The trial court reasoned that Appellant's detention at the police station for twenty minutes after his refusal to submit to testing and warning of the consequences of his refusal constituted a "post-warning opportunity" to assent to testing. The trial court therefore held that Appellant's actions amounted to a refusal under Section 1547 (b) (1) and upheld DOT's suspension.

[ 123 Pa. Commw. Page 5]

Recognizing that the trial court is the ultimate finder of fact, and its credibility determinations may not be overturned on appeal, this Court's scope of review of a common pleas court decision is limited to a determination of whether constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Graves v. Commonwealth of Pennsylvania, 112 Pa. Commonwealth Ct. 390, 535 A.2d 707 (1988).

The sole issue raised by Appellant is whether the trial court erred in concluding that Appellant was given a "post-warning opportunity" to assent after the untimely warning. Appellant contends that the police officer has a duty to take some affirmative step to inform the licensee that a "post-warning opportunity" to assent is being given by the officer. DOT argues, however, that whether Appellant was given a post-warning opportunity to assent is a question of fact for the trial court and should not be disturbed if supported by the ...


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