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COMMONWEALTH PENNSYLVANIA v. DAVID HERMAN BULL (03/20/89)

filed: March 20, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID HERMAN BULL, APPELLANT



Appeal from Judgment of Sentence February 22, 1988, in the Court of Common Pleas of York County, Criminal, No. 2675 CA 1987.

COUNSEL

Samuel K. Gates, York, for appellant.

Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.

Wieand, Olszewski and Tamilia, JJ.

Author: Olszewski

[ 382 Pa. Super. Page 560]

This is an appeal from a judgment of sentence after conviction for a first offense of driving under the influence. Appellant presents one issue for review: whether the trial court erred in allowing into evidence the results of a blood alcohol test after appellant had taken a pre-arrest breathalyzer.

On September 4, 1987, appellant was stopped by a Penn Township police officer after the automobile in which he was driving was observed crossing the center line of the highway. Suspecting that appellant was under the influence of alcohol, the police officer requested that appellant perform several field sobriety tests. One of these tests involved blowing into a breathalyzer. The result of the breathalyzer indicated that appellant had a blood alcohol content of .15 percent. Upon conclusion of the tests, appellant was placed under arrest and taken to a hospital where a blood test was performed. The results of the blood test indicated that appellant had a blood alcohol content of .15 percent.

Appellant was charged with driving under the influence, under section 3731(a) of the Motor Vehicle Code.*fn1 Prior to trial, appellant filed a motion to suppress the results of the

[ 382 Pa. Super. Page 561]

    blood test which was refused. After a non-jury trial, appellant was convicted of operating a vehicle while his blood alcohol level was in excess of .10 percent, a violation of section 3731(a)(4). An oral post-trial motion reinstating appellant's motion to suppress was argued and denied, and appellant was sentenced to a term of imprisonment totaling 48 hours to one year plus fines totaling $510. Appellant then filed the instant appeal.

Appellant presents one issue for our review: whether the trial court erred in allowing into evidence the results of a blood alcohol test after appellant had taken a pre-arrest breathalyzer. Stated somewhat differently, appellant alleges as error the denial of his motion to suppress.

As a panel of this Court has recently announced:

In an appeal from an order granting or denying a motion to suppress, the role of the appellate court is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, the Court may consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as fairly read in the context of the record as a whole remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse only if there is an error in the legal conclusions drawn from those ...


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