COM., DEPT. OF TRANSP. v. Holsten

615 A.2d 113, 150 Pa. Commw. 1
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 15, 1992
Docket1404 C.D. 1991
StatusPublished
Cited by13 cases

This text of 615 A.2d 113 (COM., DEPT. OF TRANSP. v. Holsten) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
COM., DEPT. OF TRANSP. v. Holsten, 615 A.2d 113, 150 Pa. Commw. 1 (Pa. Ct. App. 1992).

Opinions

COLINS, Judge.

Before the Court is an appeal of the Department of Transportation, Bureau of Driver Licensing (Department) from an order of the Court of Common Pleas of Delaware County that sustained the appeal of William F. Holsten, II (Holsten), from the one-year suspension of his operating privilege for refusing to submit to a chemical alcohol test in violation of Section 1547(b) of the Vehicle Code (Code), 75 Pa.C.S. § 1547(b). We reverse.

On July 21, 1990, Officer Daniel Wallower, a patrolman with the Haverford Township Police Department, was called to the scene of a two-car accident in which Holsten’s vehicle, while traveling north in the southbound lane of Darby Road, collided head-on with a southbound pick-up truck. Holsten, whom we note is an attorney, was taken to Haverford Community Hospital by ambulance. Officer Wallower testified that when he spoke with Holsten at the hospital, Holsten stated that he did not remember what took place in the accident. Holsten admitted that he had attended a golf tournament stag night at [4]*4which he had consumed straight vodka drinks but stated that he did not know how many drinks he had consumed. According to Officer Wallower, Holsten was bleeding from his forehead area, was combative and had a strong odor of alcohol on his breath.

After placing Holsten under arrest, Officer Wallower requested that he submit to a chemical test. Holsten refused. Officer Wallower then advised Holsten that if he refused the test, his driver’s license would be suspended for a period of one year. Holsten again refused to submit to a test. According to Officer Wallower, he twice advised Holsten of the implied consent warning. On cross examination, Officer Wallower testified:

Q. Was there some reason after the first refusal that you
asked the second time?
A. To make sure he understood what I was saying.
Q. Did you have some doubt about that?
A. No, sir.
Q. You had no doubt at all?
A No, sir.

By official notice dated and mailed August 14, 1990, the Department notified Holsten that his operating privilege was to be suspended for a period of one year, effective September 18, 1990, for his refusal to submit to chemical blood alcohol testing. Holsten appealed this suspension to the trial court on September 13, 1990.

A hearing de novo was held before the trial court on April 8, 1991. The Department presented the testimony of Officer Wallower. Holsten testified and presented the testimony of Patricia Kreb, who stated that she was an attorney employed by his firm, (Kreb) and Dr. Thomas F. Powell (Dr. Powell). By order dated June 3, 1991, and opinion dated August 15, 1991, the trial court sustained Holsten’s appeal, concluding that, because his injuries were of a significant nature, his refusal was not knowing and conscious.

In its appeal, the Department argues that the trial court’s finding that Holsten’s refusal was not knowing and [5]*5conscious was not supported by competent evidence of record and constituted an abuse of discretion. Our review of this matter is limited to determining whether the trial court’s findings are supported by substantial, competent evidence, whether there has been an erroneous conclusion of law or whether the trial court’s decision demonstrates a manifest abuse of discretion. Department of Transportation, Bureau of Driver Licensing v. Cochrane, 114 Pa.Commonwealth Ct. 185, 538 A.2d 614 (1988), appeal dismissed as improvidently granted, 523 Pa. 104, 565 A.2d 159 (1989).

In order to sustain a license suspension under Section 1547(b) of the Code, the Department must prove that the driver: (1) was arrested for driving under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in a license suspension. Department of Transportation, Bureau of Driver Licensing v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989). Once the Department establishes these four elements, the burden of proof then shifts to the driver to prove by competent evidence that he or she was unable to make a knowing and conscious refusal to consent to the chemical test. O’Connell. The trial court found and it is not contested that the Department met its burden of proof. Therefore, we must determine whether Holsten satisfied his burden of proving that he was incapable of making a knowing and conscious refusal.1

[6]*6Where, as here, injuries are not obviously incapacitating, a licensee must present competent medical testimony that a knowing and conscious refusal could not be made. Department of Transportation, Bureau of Driver Licensing v. Derhammer, 118 Pa.Commonwealth Ct. 364, 544 A.2d 1132 (1988). Hence, “[m]edical evidence is not a per se requirement; however, absent competent medical testimony, ‘bare assertions’ of physical incapacity are insufficient.” Department of Transportation, Bureau of Driver Licensing v. Groscost, 142 Pa.Commonwealth Ct. 36, 41, 596 A.2d 1217, 1220 (1991).

We addressed this question in Department of Transportation, Bureau of Traffic Safety v. Day, 93 Pa.Commonwealth Ct. 49, 500 A.2d 214 (1985), wherein we stated:

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.

Id. at 51, 500 A.2d at 214. In Day, unlike here, no medical evidence was presented to show that the driver’s injuries rendered him incapable of making a knowing and conscious refusal. However, the record showed that 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,” which resulted in his exhibiting “rambling speech, confusion, and at times, a total loss of memory.” Id. at 52, 500 A.2d at 215. We held that this evidence was sufficient to support the trial court’s finding that the driver’s refusal was not conscious and knowing.

The trial court correctly noted that Holsten’s self-serving statements regarding his physical condition, without more, were not sufficient to satisfy his burden of proof. However, the trial court concluded that Holsten’s testimony along -with that of Kreb and Dr. Powell was sufficient and that Holsten’s injuries were not unlike those in Day. We believe the trial court has misinterpreted this Court’s decision in Day. The [7]*7fact that injuries are significant in and of itself does not per se warrant a conclusion that a refusal was not knowing and conscious.

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COM., DEPT. OF TRANSP. v. Holsten
615 A.2d 113 (Commonwealth Court of Pennsylvania, 1992)

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Bluebook (online)
615 A.2d 113, 150 Pa. Commw. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-dept-of-transp-v-holsten-pacommwct-1992.