529 A.2d 88 | Pa. Commw. Ct. | 1987
Opinion by
The Court of Common Pleas of Montgomery County, after a hearing de novo, sustained the suspension of Harry J. McFaddens (McFadden) drivers license for one year for his failure to submit to a breathalyzer test as required by Section 1547 of the Vehicle Code, 75 Pa. C. S. §1547 and dismissed his appeal. McFadden appealed to this Court. We affirm.
The relevant facts are as follows. On January 4, 1985, Officer Robert Twist of the Ambler Borough Police Department observed McFadden driving his vehicle three-quarters of the way in the opposite lane of Tennis Avenue in Ambler Borough. Officer Twist also observed the vehicles right turn signal come on but the vehicle then proceeded to make a left turn. Officer Twist stopped the vehicle and, as he approached McFadden, Officer Twist detected a strong odor of alcohol. McFadden failed two sobriety tests, was placed finder arrest and was orally advised of his Miranda
An operators driving privileges may be suspended for refusal to submit to a breathalyzer test where the Department of Transportation proves that the driver involved: (1) was placed under arrest for driving while under the influence of alcohol, and the arresting officer had reasonable grounds to believe the driver was intoxicated; (2) was asked 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. Waigand v. Commonwealth, 68 Pa. Commonwealth Ct. 541, 449 A.2d 862 (1982).
On appeal, the sole question presented for our consideration is whether the trial court erred in concluding that McFadden made a knowing and conscious refusal to take the breathalyzer.
Once the Commonwealth has proven that a defendant refused to submit to a breathalyzer, the burden shifts to the defendant to prove by competent evidence that he was unable to make a knowing and conscious refusal. Ford v. Department of Transportation, 45 Pa. Commonwealth Ct. 268, 406 A.2d 240 (1979). Whether a driver has satisfied his burden that he was unable to make a knowing and conscious refusal is a factual question .to be determined by the trial court. Waigand.
McFadden argued before the trial court, and on appeal to this Court, based on the Miranda warnings he believed that he had a right to do and say nothing.
Our scope of review is limited to determining whether the trial courts findings are supported by competent evidence, whether an error of law has been committed, and whether’ the trial court’s decision constitutes a manifest abuse of discretion. Waigand.
In Ford, the defendant was arrested for driving under the influence of alcohol. On appeal, the defendant argued that after he was read his Miranda warnings and counseled on his right to remain silent, he was unable to effectively determine whether or not he should agree to take the breathalyzer test. This Court rejected that argument and noted that the record did not support the defendants contentions that this was his reason for refusing the test. The Court went on to say that “[e]ven if it were a reason, claimant would not be released from the effects of his refusal because he was specifically warned of the consequences”. Id. at 270, 406 A.2d at 241. In the instant matter, McFadden was specifically warned that his license would be suspended for refusal to take the breathalyzer. Accordingly, we are unable to conclude that the trial courts determination that McFadden made a knowing and conscious refusal to take a breathalyzer was erroneous.
Therefore, for the reasons set forth herein, we affirm the trial court.
Order
And Now, this 3rd day of August, 1987, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is hereby affirmed.
Miranda v. Arizona, 384 U.S. 436 (1966).
Appellant refers to the Montgomery County cases of Commonwealth v. Ferguson, 114 Montg. Co. L.R. 288 (1984) and Department of Transportation, Bureau of Traffic Safety v. O’Connell, 114 Montg. Co. L.R. 294 (1984).
The Miranda warnings do. not apply to non-testimonial actions. Commonwealth v. Benson, 280 Pa. Superior Ct. 20, 421 A.2d 383 (1980).