Opinion
Argued October 7, 1981
December 24, 1981.
Motor vehicles — Suspension of motor vehicle operator's license — Scope of review — Findings of fact — Error of law — Vehicle Code, 75 Pa. C. S. § 1547 — Refusal of breath test — Burden of proof — Credibility.
1. Review by the Commonwealth Court of Pennsylvania in a motor vehicle operator's license suspension case is to determine whether findings of the lower court were unsupported by competent evidence or errors of law were committed. [412]
2. Under provisions of the Vehicle Code, 75 Pa. C. S. § 1547, a motor vehicle operator's license is properly suspended when the Commonwealth proves that the licensee was arrested for driving while under the influence of alcohol, was requested to submit to a breath test, refused to do so and was warned of the consequences of such refusal, unless the licensee then proves that she was incapable of making a knowing and conscious refusal. [413]
3. In a motor vehicle license suspension case, questions of credibility and the resolution of conflicts in testimony are for the factfinder which may accept credible testimony of a police officer and reject unsupported self-serving statements of the licensee as to her incapacity to make a knowing refusal of a proffered breath test. [413]
Argued October 7, 1981, before President Judge CRUMLISH, JR. and Judges ROGERS and BLATT sitting as a panel of three.
Appeal, No. 2520 C.D. 1980, from the Order of the Court of Common Pleas of Washington County in case of In Re: Appeal from Suspension of Operating Privileges of Patricia L. Capozzoli, No. 271 July Term, 1980.
Motor vehicle operator's license suspended by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Washington County. Appeal dismissed. GLADDEN, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Robert N. Clarke, Clarke Curran, for appellant.
Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Patricia L. Capozzoli (appellant) appeals here from an order of the Court of Common Pleas of Washington County, affirming a six-month suspension of her driving privileges pursuant to Section 1547(b) of the Vehicle Code (Code), 75 Pa. C. S. § 1547(b). She had refused to submit to a breathalyzer test. We affirm.
Our scope of review in cases of this nature is to determine whether or not the findings of fact of the court below are supported by competent evidence and whether or not errors of law have been committed. Spicer v. Commonwealth, 52 Pa. Commw. 381, 416 A.2d 587 (1980). To sustain a suspension under Section 1547(b) of the Code, the Commonwealth must prove that the driver was (1) placed under arrest for driving while under the influence of alcohol; (2) was requested to submit to a breathalyzer test; (3) refused to do so; and (4) was warned that his license would be revoked if he refused to take the test. Everhart v. Commonwealth, 54 Pa. Commw. 22, 420 A.2d 13 (1980). Once the Commonwealth proved these elements, which it did, the burden of proof then shifted to the appellant to prove by competent evidence that she was incapable of making a knowing and conscious refusal to take the test, Herring v. Commonwealth, 50 Pa. Commw. 608, 413 A.2d 1171 (1980), and whether a driver is capable of making such knowing and conscious refusal is a question of fact for the court below. Pratt v. Department of Transportation, Bureau of Traffic Safety, 62 Pa. Commw. 55, 434 A.2d 918 (1981).
The arresting police officer testified here that he had repeatedly asked the appellant to submit to a breathalyzer test and had advised her that her operator's license would be suspended if she refused, but that she had refused the test each time the request was made. He further testified that the appellant's answers to his requests that she take the test as well as her attitude throughout the period involved had led him to conclude that her refusals had been knowing and informed. The appellant testified that she had no memory of the events in question because she had "totally blacked out" as a result of her consumption of alcoholic beverages. She argues here that the allegedly extreme state of her intoxication rendered her incapable of making a conscious and knowing refusal.
Questions of credibility and resolution of testimonial conflicts are for the court which hears the testimony. McMahon v. Commonwealth, 39 Pa. Commw. 260, 395 A.2d 318 (1978). It was, therefore, within the province of the trial judge to accept as credible evidence the testimony of the police officer rather than to accept the self-serving unsupported statements of the appellant. Pratt. Factual determinations of the court below which are supported by competent evidence will not be disturbed by this Court upon review. Herring.
Accordingly, we affirm the order of the court below.
ORDER
AND NOW, this 24th day of December, 1981, the order of the Court of Common Pleas of Washington County in the above-captioned matter is affirmed.