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RAPHAEL BALTHAZAR v. COMMONWEALTH PENNSYLVANIA (02/15/89)

decided: February 15, 1989.

RAPHAEL BALTHAZAR, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County, in the case of Commonwealth of Pennsylvania, Department of Transportation v. Raphael Balthazar, No. 1053 S 1988.

COUNSEL

Arthur K. Dils, for appellant.

Philip L. Zulli, 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 Senior Judge Narick.

Author: Narick

[ 123 Pa. Commw. Page 436]

The Court of Common Pleas of Dauphin County, after a hearing de novo, dismissed the appeal of Raphael Balthazar (Appellant) and sustained the suspension of Appellant's driver's license for one year pursuant to Section

[ 123 Pa. Commw. Page 4371547]

of the Vehicle Code, 75 Pa. C.S. § 1547 (refusal to submit to blood alcohol testing). We affirm.

At the de novo hearing, officer John P. Kennedy of the Harrisburg Police Department testified that while on duty he was dispatched to the scene of an accident. Upon his arrival at the accident scene, Officer Kennedy testified that he examined the interior of Appellant's vehicle and detected a strong smell of alcohol. Appellant was transported to a nearby hospital and while at the hospital, Officer Kennedy attempted to interview Appellant. Officer Kennedy said that Appellant's speech was "mumbled" and "slurred". Officer Kennedy further stated that Appellant had a strong odor of alcohol on his breath; and therefore, was placed under arrest for driving under the influence of alcohol. Although requested several times to submit to blood alcohol testing, Appellant refused. Additionally, a Spanish-speaking nurse tried convincing Appellant to submit to a blood alcohol test. It was only after Officer Kennedy secured hospital security for purposes of receiving a blood sample for medical purposes that Appellant consented to having blood drawn.

On appeal, the first argument raised by Appellant is twofold. Firstly, Appellant argues that he is from Haiti and his native language is Spanish. Therefore, his understanding of the English language is limited. According to Appellant, once the procedure was explained to him in his native language, he agreed to blood alcohol testing. Secondly, Appellant argues that he did not verbally refuse to submit to testing.

An operator's driving privileges may be suspended for refusal to submit to alcohol testing where the Department proves that the driver involved: (1) was placed under arrest for driving while under the influence of alcohol, and the arresting officer had reasonable grounds to believe the driver was intoxicated; (2) was asked to

[ 123 Pa. Commw. Page 438]

    submit to alcohol testing; (3) refused to do so; and (4) was warned that his license would be revoked if he refused to take the test. Im v. Department of Transportation, 108 Pa. Commonwealth Ct. 206, 529 A.2d 94 (1987). Once the Department has shown that a motorist refused to submit to chemical testing, the burden shifts to the motorist to ...


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