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Anthony Dennis Zaleski v. Commonwealth of Pennsylvania

April 14, 2011

ANTHONY DENNIS ZALESKI, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING



The opinion of the court was delivered by: James R. Kelley, Senior Judge

ORDER

AND NOW, this 22nd day of June, 2011, it is ordered that the opinion filed on April 14, 2011, shall be designated OPINION rather than

MEMORANDUM OPINION, and that it shall be reported.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Dennis Zaleski, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

No. 750 C.D. 2010

Submitted: October 22, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION

BY SENIOR JUDGE KELLEY

Anthony Dennis Zaleski (Licensee) appeals from an order of the Court of Common Pleas of Lackawanna County (Trial Court) which dismissed Licensee's appeal from a one-year suspension of Licensee's operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) pursuant to Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. §1547(b)(1).*fn1 We affirm.

The following facts are based on the Trial Court's Opinion, and concomitant credibility determinations. On November 27, 2009, Officer Brian Borowicz of the Olyphant Borough Police Department conducted a traffic stop of the vehicle driven by Licensee after observing the vehicle driving without headlights during the nighttime. After observing multiple signs of intoxication during the stop, Officer Borowicz conducted a preliminary breathalyzer test that indicated a breath alcohol level of .226.*fn2 Officer Borowicz then placed Licensee into custody, advised him of his arrest for driving under the influence of alcohol (DUI), and transported him to the Mid Valley Hospital for blood testing.

At the hospital, Officer Borowicz received a telephone call on his personal phone prior to any attempt to administer the blood alcohol test to Licensee. In that phone call, Officer Borowicz was requested, by a police officer from a neighboring municipality, to "help [Licensee] out with the DUI. He advised me to try to advise [Licensee] to refuse the blood sample." Reproduced Record (R.R.) at 10a.

Officer Borowicz then advised Licensee that he could not offer Licensee any legal advice, and that Licensee would be read the required chemical test warnings before being allowed to make a decision on whether to submit to the provision of a blood sample and testing. Officer Borowicz further advised Licensee that another officer had advised that Licensee refuse the blood sample and related testing. Officer Borowicz then informed Licensee of the suspension consequences that would arise should Licensee refuse to submit to the requested testing, by reading to Licensee, verbatim, Form DL-26, which contains the chemical testing warnings required by Section 1547 of the Vehicle Code, 75 Pa.C.S. ยง 1547. Following his receipt of the warnings from Form DL-26, Licensee was then requested to submit to chemical testing. Following Officer Borowicz's Form DL-26 reading, and his ...


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