Opinion
September 2, 1982.
Motor vehicles — Suspension of motor vehicle operator's license — Scope of appellate review — Findings of fact — Sufficient evidence — Error of law — Abuse of discretion — Credibility — Refusal of breath test — Burden of proof — Incapacity.
1. In a motor vehicle operator's license suspension case, review by the Commonwealth Court of Pennsylvania is to determine whether findings of fact are supported by sufficient evidence, whether an error of law was committed or whether discretion was abused, leaving to the trial court questions of credibility and the resolution of evidentiary conflicts. [543]
2. 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 asked to submit to a breath test, refused the test and was advised of the consequences of the refusal. [543]
3. The burden is upon a motor vehicle operator's licensee found to have refused a properly requested breath test to prove that he was incapable of a knowing and conscious refusal, and the licensee may properly be found not to have met that burden when the only evidence in support of such averment is his self-serving statements found by the factfinder to lack credibility in face of evidence to the contrary. [543-4]
Submitted on briefs May 5, 1982, before Judges ROGERS, CRAIG and DOYLE, sitting as a panel of three.
Appeal, No. 1845 C.D. 1981, from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Neil E. Weigand, Jr., No. SA 550 of 1981.
Motor vehicle operator's license suspended by Department of Transportation. Licensee appealed to the Court of Common Pleas of Allegheny County. Appeal dismissed. PAPADAKOS, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Mark H. Pollock, for appellant. Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
This is an appeal by Neil E. Waigand, Jr. (Appellant) from an order of the Court of Common Pleas of Allegheny County dismissing Appellant's appeal of a six month suspension of his automobile operating privileges by the Bureau of Traffic Safety, Pennsylvania Department of Transportation. Said suspension derived from Appellant's refusal to take a breathalyzer test after being arrested for driving under the influence of alcohol. See Section 1547(b) of the Vehicle Code (Code), 75 Pa. C. S. 1547(b). We affirm.
At the hearing on the suspension held before the court of common pleas, the arresting officer testified that he stopped Appellant after observing him driving north in the southbound lane of U.S. Route 19 in Peters Township. The officer placed Appellant under arrest as he was visibly intoxicated and, upon arrival at the police station, he requested Appellant to submit to a breathalyzer examination. Appellant initially agreed but, when subsequently confronted with the breathalyzer apparatus, refused. The arresting officer also testified that Appellant was warned that his refusal to submit to the exam would result in the revocation of his operating privileges and that Appellant seemed fully cognizant of what he was being told. When Appellant himself was questioned about the incident, he testified to the effect that he remembered nothing between being in a bar with friends "in Washington County someplace" and "waking up in jail the next day." The trial court informed Appellant that his testimony was "not credible standing alone" and proceeded to hold that Appellant had failed to show that his refusal to submit to the breathalyzer test was not a knowing and conscious act and that the suspension must stand. On appeal to this Court, Appellant asserts that the common pleas court erred in this determination and that the suspension should therefore be reversed.
Appellant also asserts that the Commonwealth failed to prove that the arrest herein was legal under the Pennsylvania Rules of Criminal Procedure and that the suspension is thus invalid. This argument was neither raised before nor addressed by the trial court and therefore cannot be raised on appeal. We note, however, that a lawful arrest is not a prerequisite to a license suspension for refusal to take a breathalyzer exam. Commonwealth v. Griffie, 21 Pa. Commw. 403, 346 A.2d 838 (1975).
This Court's scope of review of a common pleas court's decision in a license suspension case is limited to determining whether the findings of that court are supported by competent evidence, whether there has been an erroneous conclusion of law or whether the common pleas court's decision demonstrates a manifest abuse of discretion. McMahon v. Commonwealth, 39 Pa. Commw. 260, 395 A.2d 318 (1978). Questions of credibility and conflicts in the evidence presented are for the trial court to resolve, not this Court. Id.
To sustain a license suspension under Section 1547(b) of the Code, the initial burden is on the Commonwealth to establish that the driver involved (1) was arrested for driving while under the influence of alcohol, (2) was asked to submit to a breathalyzer test, (3) refused to do so, and (4) was specifically warned that a refusal would result in the revocation of his driver's license. Everhart v. Commonwealth, 54 Pa. Commw. 22, 420 A.2d 13 (1980). Where, as here, the Commonwealth has met its burden, it then becomes incumbent on appellant, if a suspension is to be reversed, to prove by competent evidence that he was not capable of knowingly and consciously refusing to take the test. Ford v. Department of Transportation, Director of Bureau of Traffic Safety, 45 Pa. Commw. 268, 406 A.2d 240 (1979). Whether an appellant has satisfied this burden is a factual determination to be made by the trial court. Pratt v. Department of Transportation, Bureau of Traffic Safety, 62 Pa. Commw. 55, 434 A.2d 918 (1981).
In the instant case, the only evidence Appellant presented concerning his capacity to knowingly and consciously refuse to submit to the breathalyzer exam were his unsupported and self-serving statements that he had no memory of what transpired. There is no error in the common pleas court's finding that such testimony lacked credibility. Capozzoli Appeal, 63 Pa. Commw. 411, 437 A.2d 1340 (1981). Therefore, in the absence of other evidence to support Appellant's allegations as to his incapacity and the reasons for that incapacity, and in light of the arresting officer's testimony that Appellant appeared "cognizant" and this Court's scope of review, we must affirm the trial court's holding that Appellant has failed to meet his burden of establishing that he was not capable of knowingly and consciously refusing to submit to the breathalyzer test. Capozzoli; Department of Transportation, Bureau of Traffic Safety v. Dauer, 52 Pa. Commw. 571, 416 A.2d 113 (1980); Ford; see also Department of Transportation, Bureau of Traffic Safety v. Tantlinger, 29 Pa. Commw. 536, 371 A.2d 1037 (1977).
"Q. So, its your testimony, then, you recall nothing at all from the time you left the bar?
A. Not even leaving it.
Q. Until the next morning you woke up?
A. That's right."
Accordingly, the suspension must stand.
ORDER
NOW, September 2, 1982, the order of the Court of Common Pleas of Allegheny County in the above captioned matter, dated June 30, 1981, No. SA 550 of 1981, is hereby affirmed.