Plotts v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

660 A.2d 133, 1995 Pa. Commw. LEXIS 264
CourtCommonwealth Court of Pennsylvania
DecidedMay 30, 1995
StatusPublished
Cited by7 cases

This text of 660 A.2d 133 (Plotts v. Commonwealth, Department of Transportation, Bureau of Driver Licensing) 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
Plotts v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 660 A.2d 133, 1995 Pa. Commw. LEXIS 264 (Pa. Ct. App. 1995).

Opinions

COLINS, President Judge.

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Montgomery County (common pleas court), which sustained the appeal of Mark J. Plotts (Plotts) from a Department order that suspended his driver’s license for failure to submit to chemical testing, pursuant to Section 1547(b) of the Vehicle Code (Code).1 For the reasons set forth herein, we reverse.

The facts as found by the common pleas court are summarized as follows. On December 27,1992, Plotts attended a Christmas party where he consumed two vodka and tonics over a two and one-half hour period. After consuming the drinks, Plotts began to feel nauseous, his hands began to shake, and he began to have a panic attack. Plotts, who was under treatment for panic attacks, took Xanax, a medication prescribed by his physician, to alleviate the onset of such attacks. After taking the medication, Plotts attempted to begin the twenty-five-mile trip to his home in Holland, Pennsylvania. Shortly after beginning the trip, Plotts began to feel dizzy and pulled into a church parking lot located in Lower Providence Township, Montgomery County, Pennsylvania, and passed out.

Officer Reginald Nealy (Officer Nealy) of the Lower Providence Township Police Department noticed Plotts’s automobile with its lights on in the church parking lot. As he approached the automobile, Officer Nealy noted that Plotts was asleep behind the wheel and attempted to awaken Plotts; Officer Nealy had great difficulty waking Plotts. After Plotts exited the automobile, Officer Nealy asked him to perform field sobriety tests; Plotts failed. Officer Nealy placed Plotts under arrest for driving under the influence and transported him to a nearby hospital for observation and to draw blood. On this trip to the hospital, Plotts vomited in the patrol car and urinated on himself.

At the hospital, Officer Nealy read the implied consent warning to Plotts and gave him a copy to read. Officer Nealy read fi’om the form to Plotts, but Plotts responded that he was unable to understand. Officer Nealy [135]*135deemed Plotts’s response a refusal to submit to chemical testing. Consequently, by official notice dated January 21, 1993, the Department notified Plotts that his driver’s license was scheduled to be suspended for one year, effective February 25, 1993. Plotts filed a statutory appeal to the common pleas court.

A de novo hearing on Plotts’s appeal was held on October 4, 1993. By order dated October 4, 1993, the common pleas court sustained Plotts’s appeal, determining that the Department met its burden of establishing a refusal by Plotts, but concluding that Plotts was incapable of making a knowing and conscious refusal to submit to chemical testing. This appeal followed.

The Department, in its one issue presented for this court’s review, questions whether the common pleas court erred when it held that Plotts’s inability to make a knowing and conscious refusal, which inability was caused by Plotts’s voluntary ingestion of alcohol and a controlled substance, may properly constitute a defense to that chemical testing refusal. In reviewing the decision of a court of common pleas in the area of driver’s license suspension, we are “confined to determining whether the trial court’s findings are supported by competent evidence, whether errors of law have been committed, or whether the trial court’s determinations demonstrate a manifest abuse of discretion.” Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 250-52, 648 A.2d 285, 292 (1994).

In Ingram, Mr. Justice Montemuro, writing for a majority of our Supreme Court, set forth the current state of the law as it pertains to these cases:

The burdens of proof applicable in license suspension cases are as follows:
[Ujnder Section 1547(b) of the Vehicle Code, the Commonwealth must establish that the driver involved: (1) was arrested for driving 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. Once the Commonwealth meets its burden it is the driver’s responsibility to prove that he was not capable of making a knowing and conscious refusal to take the test....
Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 248, 555 A.2d 873, 876 (1989). Moreover, we held in O’Connell that questions of credibility and conflicts in the evidence are for the trial court to resolve. Id. (citing Commonwealth of Pennsylvania, Department of Transportation v. Korchak, 506 Pa. 52, 483 A.2d 1360 (1984)). If there is sufficient evidence in the record to support the findings of the trial court we must pay proper deference to it as factfinder and affirm. Id.

Id. at 252, 648 A.2d at 293.

The Department argues on appeal that the common pleas court erred because an inability to knowingly and consciously refuse chemical testing caused by the voluntary consumption of alcohol does not, as a matter of law, constitute a defense to a refusal to submit to chemical testing. In support of this argument, the Department cites this Court’s decisions in Department of Transportation, Bureau of Driver Licensing v. Monsay, 142 Pa.Commonwealth Ct. 163, 596 A.2d 1269 (1991); Ascolese v. Department of Transportation, 105 Pa.Commonwealth Ct. 95, 522 A.2d 1204 (1987); Walthour v. Department of Transportation, 74 Pa.Commonwealth Ct. 53, 458 A.2d 1066 (1983). Plotts counters by arguing that the outcome of this case is controlled by this Court’s decision in Department of Transportation, Bureau of Driver Licensing v. Zeltins, 150 Pa.Commonwealth Ct. 44, 614 A.2d 349 (1992), and that the common pleas court was correct to rely upon Zeltins.

As the record contains no evidence suggesting that Plotts sustained obvious physical injuries, Plotts bore the burden of presenting competent medical evidence to show he was incapable of making a knowing and conscious refusal to submit to testing. Bell v. Department of Transportation, Bureau of Driver Licensing, 147 Pa.Commonwealth Ct. 157, 607 A.2d 304, petition for allowance of appeal denied, 533 Pa. 613, 618 [136]*136A.2d 403 (1992). The common pleas court based its decision solely on the testimony of Dr. Arthur Boxer, who testified that when Officer Nealy found Plotts in the church parking lot, Plotts was comatose because of his ingestion of alcohol and Xanax. According to Dr. Boxer, this combination of alcohol and Xanax makes it difficult to maintain consciousness; therefore, Plotts’s ability to know and comprehend was significantly impaired. The common pleas court found Dr. Boxer’s testimony credible, and we are bound by this credibility determination.

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660 A.2d 133, 1995 Pa. Commw. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plotts-v-commonwealth-department-of-transportation-bureau-of-driver-pacommwct-1995.