Appeal from the Order of the Court of Common Pleas of Delaware County, in the case of Commonwealth of Pennsylvania, Department of Transportation v. Stephen R. Trobovic, No. 87-9229.
M. Emmons Stivers, 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.
[ 123 Pa. Commw. Page 386]
Stephen R. Trobovic (Appellant) appeals an order of the Delaware County Court of Common Pleas dismissing his appeal from a one-year suspension of his operating privilege imposed by the Pennsylvania Department of Transportation (DOT) pursuant to Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b).*fn1
At approximately 10:30 p.m. on May 10, 1987, Officer Steven Dintino of the Tredyffrin Township Police Department observed Appellant operating his vehicle at an excessive rate of speed and in an erratic manner. The officer observed that Appellant was traveling forty-seven
[ 123 Pa. Commw. Page 387]
miles per hour in a posted thirty-five miles per hour zone and that at one point Appellant's vehicle travelled off the left side of the roadway for approximately 200 feet. The officer testified that at another intersection, Appellant drove his vehicle on the left half of the roadway for a couple hundred feet.
Officer Dintino stopped Appellant and requested his driver's license and registration. The officer noted that Appellant had an odor of alcohol on his breath, that his eyes were red, glassy and blood shot, and that his speech was slurred. Appellant fell against the driver's side of the vehicle upon exiting. Officer Dintino noted Appellant's balance to be extremely impaired and twice had to help support him in order to keep him from falling down.
After Appellant failed four field sobriety tests, Officer Dintino informed Appellant that he was under arrest for driving under the influence of alcohol. The officer advised Appellant of the implied consent law, asked him to submit to a blood test and informed him that if he refused to take the test his driver's license would be suspended for one year. Appellant refused to submit to the blood test. Three or four minutes later Officer Dintino once again asked Appellant to submit to a blood test and Appellant refused.
Appellant was transported to the Tredyffrin Township Police Department where he was videotaped. Counsel for Appellant attempted to submit this one and one half hour long videotape into evidence but the trial court refused to view it.
Making an offer of proof, Appellant's counsel stated that on the tape Appellant asked to take a breath test and was informed that he could not.*fn2 At that time, Officer ...