Appeal from the Order of the Court of Common Pleas of Erie County in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing v. Dennis L. Pustelak, No. 766-A-1988.
Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.
No appearance for appellee.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins.
[ 125 Pa. Commw. Page 216]
The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Erie County which sustained the appeal of Dennis L. Pustelak (Pustelak) from the Department's one year suspension of his operating privilege pursuant to Section 1547(b)(1) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b)(1). This suspension was based upon Pustelak's refusal to submit to chemical testing at the time of his arrest for operating a motor vehicle while under the influence of alcohol in violation of Section 3731(a)(1) of the Code, 75 Pa. C.S. § 3731(a)(1).
At the de novo hearing before the trial court it was stipulated by the parties that Officer Michael West had reasonable grounds to believe that Pustelak was driving
[ 125 Pa. Commw. Page 217]
under the influence, that he arrested Pustelak and that Pustelak refused to submit to chemical testing. Accordingly, the sole issue before the trial court and this Court is whether Pustelak was properly warned that his license would be suspended or revoked if he refused to submit to testing.
The Department offered the testimony of the arresting officer, Officer Michael West and the intoxilyzer operator, Officer Phillip Woods.*fn1 Pustelak did not testify on his own behalf before the trial court.*fn2 Officer West testified that subsequent to the arrest, Pustelak was handcuffed and taken to the police station where he was put in what is commonly known as the "break room." At that time, Officer West told Pustelak that he would have to take an intoxilyzer test. Pustelak refused. Officer West then proceeded to inform Pustelak that if he refused to do so, his refusal would probably result in a six month suspension of his license.
Approximately twenty minutes after Officer West spoke to Pustelak, Officer Woods, a certified intoxilyzer operator, began questioning Pustelak. Officer Woods testified that:
A [Pustelak] . . . was asked would he taken [sic] an intoxilyzer test, ...