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Gammer v. Commonwealth

March 5, 2010

CURT MARSDEN GAMMER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING



The opinion of the court was delivered by: Dan Pellegrini, Judge

ORDER

AND NOW, this 14th day of May, 2010, the opinion filed March 5, 2010, in the above-captioned matter shall be designated Opinion rather than Memorandum Opinion, and it shall be reported.

Submitted: February 12, 2010

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Curt Marsden Gammer (Licensee) appeals the order of the Court of Common Pleas of Lehigh County (trial court) denying his appeal from the Department of Transportation's (PennDOT) one-year suspension of his operating privileges for failure to submit to a chemical test following his arrest for driving under the influence (DUI).

PennDOT suspended Licensee's operating privileges for 12 months following his April 30, 2009 arrest for DUI and refusal to submit to chemical testing pursuant to Section 1547 of the Vehicle Code, 75 Pa. C.S. §1547.*fn1

Licensee filed an appeal with the trial court, which held a hearing. At that hearing, the following testimony was presented.

Corporal Kevin P. Smith (Corporal Smith) of the Pennsylvania State Police testified that on April 30, 2009, around 1:00 a.m., he was conducting a routine patrol when he discovered Licensee's car running in the back of the parking lot of the Microtel Inn next to some dumpsters. Corporal Smith ran the vehicle registration and discovered that it belonged to Licensee, whom Corporal Smith had personally arrested twice before for DUI. Corporal Smith called for backup, and Trooper Jonathan R. Gerken (Trooper Gerken) arrived.

Trooper Gerken testified that he approached the vehicle and saw that it was running with Licensee seated in the driver's seat but slouched over the passenger seat, appearing to be either unconscious or asleep. He knocked on the window, and Licensee awoke and opened the window. He smelled like alcohol, had glassy eyes and showed signs of impairment. Trooper Gerken asked Licensee to step out of the car to perform field sobriety tests. Licensee responded by yelling that the officers were "fags" who "were screwing each other before you came here" and attempted to re-enter the vehicle, at which time Trooper Gerken had to physically restrain him. Eventually, the officers had to restrain Licensee on the ground, hogtie him and Taser him because of his continued resistance. While on the ground, Licensee kicked Trooper Gerken in the chest and continued to yell obscenities at the officers.

Trooper Gerken further testified that Licensee was placed in the back of the squad car and brought to the Lehigh County Central Booking Center (Booking Center) to be processed for DUI. Trooper Gerken advised Licensee that he would be given a blood test at the Booking Center. At the time of his testimony, Trooper Gerken did not specifically remember whether he had warned Licensee of the consequences of not cooperating with the blood test,*fn2 but stated that it was his usual practice for him to do so. An affidavit signed by Trooper Gerken dated April 30, 2009, was entered into evidence stating that he had given Licensee the required warnings concerning the consequences of refusing to submit to a chemical test, including the 12-month license suspension.

When they arrived at the Booking Center, Licensee was untied and handcuffed. While Trooper Gerken was escorting him into the Booking Center, Licensee head-butted him in the mouth, chipping his tooth, at which point the officers again had to tackle him to the ground in order to restrain him. Licensee was locked in a cell, and the Booking Center personnel never attempted to perform the blood test on him because of his continued combative behavior.

Licensee, at the time unrepresented, did not testify. He "argued," though, that he had neither driven the vehicle nor was he passed out or asleep but rather was merely in the vehicle to charge his cell phone. Furthermore, he argued that the police officers had never discussed a blood test and that they gave him no warnings concerning the consequences of refusing it.

Finding Corporal Smith and Trooper Gerken's testimony credible and holding that Licensee was in actual physical control of his vehicle, was told he would have to submit to a blood test and was given the required warnings of the consequences of refusing the test, the trial court denied Licensee's appeal. It further held that Licensee's belligerent ...


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