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05/08/97 MICHAEL J. DUFFY v. COMMONWEALTH

May 8, 1997

MICHAEL J. DUFFY, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING



Appealed From No. 95-CIV-356. Common Pleas Court of the County of Lackawanna. Judge COTTONE.

Before: Honorable Joseph T. Doyle, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: May 8, 1997

Michael J. Duffy (Duffy) appeals an order of the Court of Common Pleas of Lackawanna County (Common Pleas) denying Duffy's statutory appeal from a one-year suspension of his operating privileges imposed by the Department of Transportation (DOT) pursuant to what is known as the Implied Consent Law. *fn1

On December 10, 1994, Trooper Kaye, of the Pennsylvania State Police, was called to the scene of a motor vehicle accident. When Trooper Kaye reached the scene of the accident, all the parties to the accident had already been transported to the hospital. Trooper Kaye conducted an investigation and, as part of his investigation, interviewed Ted Vanbusker, a witness at the scene of the accident.

Vanbusker told Trooper Kaye that he went to the assistance of the people involved in the accident and "he identified the operator of the light brown pick-up truck as a white male approximately 40 years old with a moustache." (Notes of Testimony (N.T.) at 5; (Reproduced Record (R.R.) at 51(a)). Patrolman Hickey of the Scranton Police Department gave Trooper Kaye a written statement that he took from another witness, Tim Langan. Langan's statement indicated that the driver of the pick-up truck wore a "jean type jacket on a red sweat hood." (N.T. at 7; R.R. at 53(a)).

After completing his investigation at the scene, Trooper Kaye went to the hospital to interview the parties to the accident. The first person Trooper Kaye interviewed was Duffy who was dressed in a red hooded sweatshirt and a jean jacket. Duffy had a moustache and when the Trooper asked Duffy how old he was, Duffy said he was forty. Trooper Kaye noticed that Duffy's eyes were bloodshot and glassy, his speech was slurred, and he was swaying. Moreover, Duffy had a heavy odor of alcohol on his breath.

Trooper Kaye then asked Duffy if Duffy had been driving one of the vehicles involved in the accident. Duffy replied that he had not been driving. Duffy told Trooper Kaye that an unknown third party had been driving the vehicle, and that he did not know anything about the unknown third party driver. Trooper Kaye then informed Duffy that he had reason to believe that Duffy was the operator of the vehicle and placed Duffy under arrest for driving under the influence of alcohol. He read Duffy the implied consent warnings and asked him to submit to a chemical test of his blood alcohol. Duffy refused. DOT then suspended Duffy's operating privileges and Duffy appealed to Common Pleas.

At Duffy's hearing in Common Pleas, Duffy's counsel made a hearsay objection to Trooper Kaye's testimony concerning what witnesses at the scene had told him about the description of the driver. That objection was sustained and, as a result, Common Pleas upheld Duffy's appeal on the basis that DOT had failed to prove that Trooper Kaye had a reasonable basis for believing that Duffy was driving under the influence of alcohol. DOT appealed to this Court which vacated the order of the Common Pleas Court and remanded for the purpose of allowing Trooper Kaye to testify regarding information he received from others in order to establish he had a reasonable basis for his belief that Duffy was the driver of one of the vehicles. Duffy v. Department of Transportation, Bureau of Driver Licensing ( No. 1181 C.D. 1995, filed March 28, 1996).

On remand, Trooper Kaye testified regarding what he had been told by Vanbusker and what he read in the statement of the witness taken by Patrolman Hickey. After hearing this testimony, Common Pleas concluded that Trooper Kaye had a reasonable basis for suspecting that Duffy was driving one of the vehicles involved in the accident and denied Duffy's appeal. This appeal followed.

To sustain Duffy's suspension, DOT has the burden to prove four elements: (1) the licensee was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was in operation or in actual physical control of the movement of a motor vehicle while under the influence of alcohol or a controlled substance; (2) the licensee was requested to submit to a chemical test; (3) the licensee refused to do so; and (4) the licensee was specifically warned that a refusal to submit to the chemical test would result in the suspension of his operating privilege. Department of Transportation, Bureau of Driver Licensing v. Scott, Pa. , 684 A.2d 539 (1996); Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994); Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989).

Duffy concedes that DOT met its burden of proof with regard to the last three elements above. However, Duffy argues that admission of the witness statements proffered by DOT to meet its burden of proving the first element, i.e., the police officer's reasonable belief, was error. Second, Duffy argues that Common Pleas erred by ...


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