Summary
In Pratt v. Department of Transportation, 62 Pa. Commw. 55, 57, n. 1, 434 A.2d 918, 919, n. 1 (1981), we noted, but did not there have to decide, the question of whether or not extreme intoxication could be a lawful justification for a motorist's failure to submit to an alcohol test.
Summary of this case from Walthour v. Dept. of TransportationOpinion
September 24, 1981.
Motor vehicles — Suspension of motor vehicle operator's license — Scope of appellate review — Findings of fact — Sufficient evidence — Error of law — Refusal of breath test — Competence to refuse — Credibility — Conflicting evidence.
1. Review by the Commonwealth Court of Pennsylvania in a motor vehicle license suspension case is to determine whether the findings of fact of the lower court are unsupported by sufficient evidence and whether errors of law were committed. [56]
2. A motor vehicle operator's license is properly suspended when it is proved that the operator was arrested for driving while under the influence of intoxicating liquor, was requested to submit to a breath test, refused to do so and was warned of the consequences of his refusal. [57]
3. Whether a motor vehicle operator requested to take a breath test was capable of making a knowing and conscious refusal is a fact question for the lower court which must resolve questions of credibility, and a determination of that issue supported by competent evidence will not be disturbed on appeal although competent evidence to the contrary was also received. [57]
Submitted on briefs, June 4, 1981, to Judges MENCER, CRAIG and MacPHAIL, sitting as a panel of three.
Appeal, No. 2485 C.D. 1979, from the Order of the Court of Common Pleas of York County in case of Commonwealth of Pennsylvania v. Raymond M. Pratt, II, No. 79-S-639.
Motor vehicle operator's license suspended by Department of Transportation. Licensee appealed to the Court of Common Pleas of York County. Suspension affirmed. ERB, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Peter D. Solymos, Markowitz, Kagen Griffith, for appellant.
Robert C. Bell, Assistant Counsel, with him Harold H. Cramer, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Raymond M. Pratt, II (Appellant), appeals from an order of the Honorable JOSEPH E. ERB of the Court of Common Pleas of York County, affirming the suspension of Appellant's driver's license, pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C. S. § 1547(b), for his refusal to submit to a breathalyzer test. We affirm.
Our scope of review in cases of this nature is to determine whether the findings of fact of the court below are supported by competent evidence and whether errors of law have been committed. Spirer v. Commonwealth, 52 Pa. Commw. 381, 416 A.2d 587 (1980). The gravamen of Appellant's challenge in this appeal is that the lower court erred in concluding that he was able to make a knowing and conscious refusal to submit to the breathalyzer test. Whether a driver is capable of making a knowing and conscious refusal to take the test is a question of fact for the lower court. Herring v. Commonwealth, 50 Pa. Commw. 608, 413 A.2d 1171 (1980).
In the instant case the evidence included the testimony of a state policeman who expressed the opinion that the Appellant was sufficiently sober to comprehend the nature of the request that he take the breathalyzer test at the time he refused to do so. The trial judge found that testimony to be credible, notwithstanding evidence from the Appellant to the contrary. It is the function of the lower court, of course, to decide issues of credibility and reconcile conflicts in the evidence. Spirer.
Our law is now clear that the driving privileges of an operator may be suspended for refusal to take a breathalyzer test where the driver was: 1) placed under arrest for driving while under the influence of intoxicating liquor; 2) was requested to submit to a breathalyzer test; 3) refused to do so; and 4) is warned that his license will be revoked if he refuses to take the test. Everhart v. Commonwealth, 54 Pa. Commw. 22, 420 A.2d 13 (1980). After a careful review of the record in this case, we are well satisfied that the Commonwealth has met its burden to prove each of those elements. Further, we conclude that the court appropriately resolved conflicting testimony, that the findings of fact are supported by competent evidence and that no errors of law were made.
Since we affirm the lower court's finding that Appellant was capable of making a knowing and conscious refusal to submit to the breathalyzer test, we need not address the Department's contention that a driver may not use extreme intoxication as a valid defense to his refusal to submit to the test. Furthermore, there is nothing in the record to indicate that this issue was raised before the trial court. The issue, therefore, has been waived. Department of Transportation, Bureau of Traffic Safety v. Searer, 50 Pa. Commw. 468, 413 A.2d 1157 (1980).
Order affirmed.
ORDER
AND NOW, this 24th day of September, 1981 the order of the Court of Common Pleas of York County, dated November 14, 1979 and filed to No. 79-S-639, is hereby affirmed.