Summary
holding that a broken jaw, severe facial lacerations, a broken arm, an injured leg, and blows to the back of the head were sufficiently obvious and severe so that expert medical testimony was not required
Summary of this case from Kane v. Pa. Dep't of Transp.Opinion
November 14, 1985.
Motor vehicles — Suspension of motor vehicle operator's license — Refusal of blood-alcohol test — Burden of proof — Scope of appellate review — Mental or physical condition — Medical evidence.
1. After the Commonwealth establishes all facts necessary to justify a request made of a motor vehicle operator to submit to a blood-alcohol test, the burden shifts to the operator in a license suspension proceeding to show that the operator was incapable of making a knowing and conscious refusal of the test. [51]
2. In a motor vehicle operator's license suspension case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is to determine whether findings of fact are supported by substantial evidence and whether an error of law was committed. [51]
3. When a motor vehicle operator asserts that injuries sustained in a motor vehicle accident rendered him incapable of making a knowing and conscious refusal of a requested blood-alcohol test, medical evidence is not a per se requirement in establishing the assertion, and the trial judge in assessing the credibility and weight of the evidence may find that such assertion is true, even without medical testimony. [52]
President Judge CRUMLISH, JR. dissented.
Submitted on briefs September 10, 1985, to President Judge CRUMLISH, JR., Judge COLINS, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 859 C.D. 1984, from the Order of the Court of Common Pleas of Adams County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Charles W. Day, No. 83-S-671.
Motor vehicle operator's license suspended by Department of Transportation. Licensee appealed to the Court of Common Pleas of Adams County. Appeal sustained. Suspension overruled. SPICER, J. Department of Transportation appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed. Application for reargument filed and denied.
Michael R. Deckman, Deputy Chief Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant. Scott L. Kelley, Stonesifer and Kelley, for appellee.
The Department of Transportation (DOT) appeals a common pleas court decision sustaining the appeal of the motorist whose operating privileges were suspended because he refused to take a blood-alcohol examination. The trial court found that the driver did not comprehend what was occurring as a result of an accident and, consequently, did not make a conscious and knowing refusal. We affirm.
DOT contends that no medical evidence was introduced to establish that the appellee's injuries rendered him incapable of making a knowing and conscious refusal. Where the Commonwealth has met all prior requirements, the burden of proof shifts to the driver to show that he or she was incapable of making a knowing and conscious refusal. Capozzoli Appeal, 63 Pa. Commw. 411, 437 A.2d 1340 (1981). This is a question of fact for the fact finder. Id. Where the person with the burden of proof prevails in the court below, our scope of review is limited to a determination of whether the findings of fact of the court below are supported by substantial evidence and whether errors of law were committed. Spirer v. Commonwealth, 52 Pa. Commw. 381, 416 A.2d 587 (1980).
Many factors must be considered in determining whether the refusal of a driver to submit to a blood test or the breathalyzer was a knowing and conscious refusal. One of the most important is the driver's mental and physical state at the time. The nature and extent of the driver's injuries are relevant on this issue.
After carefully reading the record in the instant case, we are left with grave reservations concerning the driver's ability to make a knowing and conscious refusal. The record shows that as a result of the accident the driver suffered multiple injuries, including: a broken jaw, severe facial lacerations, a broken arm, an injured leg, and blows to the back of his head. The result of these injuries was rambling speech, confusion, and at times, a total loss of memory. However, no medical evidence was introduced to show that these injuries rendered him incapable of making a knowing and conscious refusal.
The cases discussing medical evidence do not indicate that such evidence is a per se requirement. See Department of Transportation, Bureau of Traffic Safety v. Dauer, 52 Pa. Commw. 571, 416 A.2d 113 (1980). What they do indicate is that a motorist's bare assertion of physical incapacity, absent any supportive medical evidence, is insufficient to meet the required burden of proof. Waigand v. Commonwealth, 68 Pa. Commw. 541, 449 A.2d 862 (1982); Department of Transportation, Bureau of Traffic Safety v. Hanes, 49 Pa. Commw. 407, 411 A.2d 571 (1980). With regard to the motorist's physical condition, each case must be decided on its individual facts.
The trial judge determines the credibility of the witnesses and the weight of their testimony. Taking into consideration the appellee's physical condition, and all the attendant circumstances, the evidence was substantial enough to support the trial judge's finding that the refusal was not conscious and knowing, even absent medical testimony to form a nexus between the injuries sustained and the refusal to take the test.
ORDER
The order of the Court of Common Pleas of Adams County in No. 83-5-671, entered February 24, 1984, is affirmed.
President Judge CRUMLISH, JR., dissents.