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12/19/97 GEORGE W. OSTERMEYER v. COMMONWEALTH

December 19, 1997

GEORGE W. OSTERMEYER, III
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT



Appealed From No. S.A. 0998 of 1996. Common Pleas Court of the County of Allegheny. Judge WATSON.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick. Dissenting Opinion BY Judge Kelley.

The opinion of the court was delivered by: Narick

OPINION BY

SENIOR JUDGE NARICK

FILED: December 19, 1997

The issue on appeal is whether the injuries sustained by an appellee as a result of his automobile accident were so obvious and severe that he was not required to present expert medical testimony at his drivers' license suspension hearing, at which he attempted to excuse his refusal to submit to a blood-alcohol test following the accident, on the grounds that the accident left him too disoriented to provide a knowing and conscious refusal.

The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) that sustained the appeal of George Ostermeyer (Ostermeyer) and ordered that Ostermeyer's driving privilege shall not be suspended for one year for refusing to submit to a chemical test of intoxication in violation of Section 1547(b) of the Vehicle Code, 75 Pa. C.S. "1547(a) and (b). Because the trial court erred in holding that Ostermeyer's injuries precluded him from making a knowing and conscious decision to refuse the chemical test and therefore excused his refusal, we reverse. *fn1

The relevant facts are as follows. On November 11, 1996, Ostermeyer was arrested by Officers Krek and Colucci of the Brentwood Police Department following an accident involving Ostermeyer, who subsequently failed field sobriety tests. The officers noticed that the windshield of Ostermeyer's vehicle was cracked, apparently having been struck by Ostermeyer's and/or his wife's heads as a result of the accident, and the couple was transported by ambulance to Mercy Hospital.

At the hospital, Officer Colucci read Ostermeyer his O'Connell warning *fn2 and requested that he submit to a blood-alcohol test. Ostermeyer refused, and his driving license was suspended for one year pursuant to 75 Pa. C.S. '1550(a). Ostermeyer appealed the suspension to the trial court and a de novo hearing was held on October 10, 1996, before Judge Watson.

At the October 10, 1996 hearing, the Department presented the testimony of Officers Krek and Colucci, while Ostermeyer testified on his own behalf but did not present any expert medical testimony.

Officer Krek testified that he noticed two cracks in the vehicle's windshield due to both victims' heads going through the windshield, but that Ostermeyer did not appear to have any visible injuries. Officer Colucci testified that Ostermeyer did not appear to be injured nor disoriented but did appear intoxicated. Both officers testified that, after Ostermeyer twice refused to submit to the blood-alcohol testing, they left the hospital and returned to the police station.

Ostermeyer, testifying on his own behalf, admitted that he had been drinking prior to the accident but stated that he was "fading in and out" and "getting confused" because of his head hitting the windshield of his vehicle. Ostermeyer also testified that he never refused to submit to the blood-alcohol test, and that he did, in fact, undergo the test after the officers left the hospital. Ostermeyer did not present any medical testimony to support his assertion that he was disoriented and confused due to his alleged head injuries.

By order dated October 11, 1996, the trial court sustained Ostermeyer's appeal, concluding that, despite the credible testimony of Officers Krek and Colucci, Ostermeyer's injuries rendered him confused and thereby precluded him from making a knowing decision to submit to or refuse the blood-alcohol testing. Ostermeyer's refusal to submit to the testing was therefore excused.

In this appeal, the Department argues that the trial court erred in finding that Ostermeyer was incapable of making a knowing and conscious refusal to submit to the blood test due to his alleged injuries because he presented no expert medical testimony to support that proposition and because his ...


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