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KIM MCDONALD v. COMMONWEALTH PENNSYLVANIA (12/29/89)

decided: December 29, 1989.

KIM MCDONALD, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE



Appeal from Common Pleas Court, Northampton County, Honorable Alfred T. Williams, Jr., Pres. Judge.

COUNSEL

Philip D. Lauer, with him, Brian M. Monahan, Easton, for appellant.

David R. White, Asst. Counsel, 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

[ 130 Pa. Commw. Page 278]

Kim McDonald (Appellant) appeals an order of the Court of Common Pleas of Northampton County (trial court) which affirmed the Department of Transportation's (DOT) one-year suspension of his motor vehicle operating privilege. We affirm.

The facts are undisputed and are, in pertinent part, as follows. Officer Harry E. Brown of the Bangor Police Department stopped Appellant's green Ford truck after Officer Brown received a report that a vehicle of that description had been involved in a hit-and-run accident. Officer Brown testified that the side mirror of Appellant's truck was smashed, that Appellant was bleeding from the mouth, had a very strong smell of alcohol, had glassy, bloodshot eyes, and was very uncooperative. Appellant was arrested for driving under the influence of alcohol. Officer Brown requested that Appellant submit to chemical testing and informed him of the consequences should he refuse. Appellant refused to take a test.

Appellant was transported to the Bangor Police Station where Appellant again was requested to submit to a chemical test which he refused. At the Bangor Police Station,

[ 130 Pa. Commw. Page 279]

Appellant was involved in an altercation with an off-duty officer. Appellant testified that, in response to his request for permission to make a phone call, the off-duty officer kicked Appellant in the shoulder, sending him against the wall of the jail cell. As a result, Appellant suffered a bruise to his shoulder and a bump on his head.

Later, Appellant was transported to the State Police Barracks at Stockerton. State Police Corporal Polk, a breathalyzer operator, requested that Appellant take a breathalyzer test. Again, Appellant refused. As a result of his refusal, DOT suspended Appellant's operating privilege for one year pursuant to section 1547 of the Vehicle Code, as amended, 75 Pa.C.S. ยง 1547.*fn1 Appellant appealed to the trial court which affirmed the suspension.

On appeal to this court,*fn2 Appellant raises three issues: 1) whether the arresting officer had probable cause to arrest Appellant; 2) whether the arresting officer had reasonable grounds to request a breathalyzer test; and 3) whether ...


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