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Kollar v. Commonwealth

November 3, 2010

LYNETTE A. KOLLAR
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT



The opinion of the court was delivered by: Senior Judge Flaherty

Submitted: July 16, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge

OPINION

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Luzerne County (trial court) that reversed DOT's action in suspending the operating privileges of Lynette A. Kollar (Licensee) for refusing to submit to chemical testing. We reverse the order of the trial court and reinstate DOT's one-year suspension.

A de novo hearing was held on February 8, 2010. Officer Paul Polemitis testified that he was dispatched to a two car accident on October 17, 2009. He spoke to Licensee who was sitting in her vehicle at the time he arrived at the scene. He detected the smell of alcohol from inside the vehicle. Per Officer Polemitis, Licensee conceded she consumed alcoholic beverages earlier that day. According to Officer Polemitis, Licensee appeared intoxicated. He did not observe any injuries.

Officer Paul Crawford testified that he met with Licensee at the hospital following the accident and advised her that she was going to be placed under arrest for suspicion of driving under influence of alcohol (DUI). At that time, he did not observe any injury. He requested that she submit to a blood test and read her the "warnings form" concerning the blood test. Reproduced Record (R.R.), p. 16a. Licensee remained silent following Officer Crawford's request. Officer Crawford explained the blood test again and made another request that Licensee submit to the same. After receiving no response, the officer completed the form indicating Licensee refused to submit to chemical testing.

Licensee presented the testimony of Lawrence Guzardi, M.D., an emergency physician and medical toxicologist, who took a history from Licensee, reviewed her medical records, and read the police report. According to Dr. Guzardi, Licensee sustained two lacerations requiring sutures, rib contusions, and a concussion as a result of the October 17, 2009 motor vehicle accident. There was also a loss of consciousness. He stated that as a result of a concussion, one typically may experience confusion, difficulty understanding, difficulty reasoning, and disorientation. Dr. Guzardi opined that Licensee's injuries impacted Licensee's ability to comprehend an officer's request that she submit to chemical testing and the consequences of her refusal. He could not rule out alcohol as also playing a factor.

Based on the evidence presented, the trial court sustained Licensee's appeal of DOT's determination suspending her operating privileges for one year. In so ruling, the trial court relied on the testimony of Dr. Guzardi concerning the extent of Licensee's injuries as a result of the accident as well as those injuries' impact on her ability to understand Officer Crawford's request to submit to a blood test and the consequences of her refusal. This appeal followed.*fn1

DOT argues on appeal that the trial court erred in finding Licensee satisfied her burden to establish that her refusal to submit to chemical testing was not knowing or conscious. According to DOT, Licensee was unable to meet her burden inasmuch as her medical expert's opinion was equivocal. Moreover, it posits that Dr. Guzardi failed to rule out alcohol as a contributing factor to her inability to understand Officer Crawford's request or the consequences of her refusal.

The Implied Consent Law set forth in Section 1547 of the Vehicle Code, 75 Pa.C.S. §§101-9805, provides, in relevant part:

(b) SUSPENSION FOR REFUSAL.--

(1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows:

(i) Except as set forth in subparagraph (ii), for a ...


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