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CHRISTOPHER P. LUZINS v. COMMONWEALTH PENNSYLVANIA (09/29/89)

decided: September 29, 1989.

CHRISTOPHER P. LUZINS, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from Chester County Common Pleas Court, Honorable Lawrence E. Wood, Judge.

COUNSEL

Allan H. Freedman, Briskin, Freedman & Cunilio, Bryn Mawr, for appellant.

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

Crumlish, Jr., President Judge, and Palladino and Smith, JJ.

Author: Palladino

[ 128 Pa. Commw. Page 602]

Christopher P. Luzins (Luzins) appeals from an order of the Court of Common Pleas of Chester County, which dismissed an appeal from a one year suspension imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) for refusing to submit to chemical testing as required by 75 Pa.C.S. § 1547. We affirm.

The facts are not in dispute. At 1:15 a.m. on September 23, 1988, an officer of the Plymouth Township Police Department observed a vehicle being driven without its lights on. The officer stopped the vehicle, informed the operator, Luzins, that his headlights were not on and asked Luzins where he was headed. The officer testified that he detected an odor of alcohol on Luzins' breath, that Luzins' speech was thick tongued, that Luzins' eyes were bloodshot and glassy in appearance, and that Luzins fumbled through his wallet when requested to produce his operator's permit and vehicle registration. N.T. at 4-5. Luzins was then arrested for driving under the influence and was transported to the police station for an intoximeter test. After being informed

[ 128 Pa. Commw. Page 603]

    of the implied consent law, Luzins submitted to the breath test, but due to the discrepancies in the readings, by operation of law, the machine was considered not operational. Luzins was then transported by the officer to a nearby hospital for a blood alcohol test. Once at the hospital, Luzins refused to permit the withdrawal of blood, even after being informed by the officer that such a refusal would result in an automatic license suspension. There was no dispute of the fact that the hospital was not within the primary jurisdiction of the officer who requested the chemical test.

The sole issue presented by this appeal is whether a motorist's refusal to submit to a chemical test pursuant to 75 Pa.C.S. § 1547 is valid when the request is made by an officer outside of his primary jurisdiction.

Our scope of review in a motor vehicle license suspension case is limited to determining whether the findings of fact are supported by substantial evidence, whether errors of law have been committed and whether the trial court's decision demonstrates a manifest abuse of discretion. Hewitt v. Commonwealth of Pennsylvania, 116 Pa. Commonwealth Ct. 413, 541 A.2d 1183 (1988).

Under 42 Pa.C.S. § 8953, a municipal police officer who is within the Commonwealth but beyond the territorial limits of his primary jurisdiction, has the power and authority, if certain conditions are met, to enforce the laws of the Commonwealth or otherwise perform the functions of his office as if he were operating within his primary jurisdiction. Luzins argues that none of the exceptions contained in 42 Pa.C.S. § 8953 are applicable, and as a result the request for a chemical test was null and void, as are any sanctions for refusing to submit to the test. We disagree with this conclusion.

We believe that the actions of the officer fell into the official business exception to 42 Pa.C.S. § 8953, ...


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