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HomeMy WebLinkAbout2007-4769 Civil ELIZABETH H. SHEETZ, : IN THE COURT OF COMMON PLEAS OF PETITIONER : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, BUREAU : OF DRIVER LICENSING, : RESPONDENT : 07-4769 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND ORDER OF COURT Bayley, J., January 2, 2008:-- Elizabeth H. Sheetz filed this appeal from the suspension of her operating privilege for one year for refusal to submit to a breath test following her arrest for December 27, 2007 driving under the influence. A hearing was conducted on . We find the following facts. On June 13, 2007, at approximately 9:15 p.m., Officer Jason Julseth of the Hampden Township Police Department was dispatched to Clearfield Drive in the Township to provide back-up to another Hampden Township Police Officer. When he arrived, Officer Julseth saw a vehicle in front of the Hampden Township police car of Township Officer Sheetz. Officer Sheetz told him that he had witnessed Elizabeth Sheetz driving the vehicle and initiated a vehicle stop. Corporal Bonner then arrived. Because of a familial relationship between Elizabeth Sheetz and Officer Sheetz, Corporal Bonner directed Officer Julseth to conduct an investigation at the scene. 07-4769 CIVIL TERM Officer Julseth tried to give Elizabeth Sheetz a horizontal gaze nystagmus test but could not because she would not keep her body or her head still. She had a strong odor of alcohol on her breath. She would not complete a walk-and-turn test. She refused to attempt a one-leg stand test. A preliminary breath test showed her blood alcohol in the range of .238 percent. Officer Julseth arrested her for driving under the influence and took her to a booking center where he read to her Implied Consent Warnings. She signed an acknowledgment of having received the warnings. She kept saying that she had not been driving and did not know why she was there. A booking agent, Patrick Carroll, prepared a breath test machine but petitioner would not blow into the mouthpiece despite his repeated requests for her to do so. He then told her he would give her three more minutes to take the test. She said she would not take the test. The Vehicle Code at 75 Pa.C.S. Section 1547(b)(1), provides: If any person placed under arrest for a violation of section 3802is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police the department shall suspend the operating privilege of the officer, person ... (Emphasis added.) Dailey v. Commonwealth of Pennsylvania, Department of Transportation, In Bureau of Driver Licensing, 722 A.2d 772 (Pa. Commw. 1999), the Commonwealth Court stated: In order to warrant a license suspension, the burden is upon the Bureau to prove that: 1) the licensee was arrested for driving under the influence of alcohol, 2) was requested to submit to chemical testing, 3) -2- 07-4769 CIVIL TERM the licensee refused to do so and 4) the licensee was warned that a refusal would result in the suspension of his operating privilege. Department of Transportation, Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 691 A.2d 450 (1997). Once the Bureau meets its burden, then the burden shifts to the licensee to prove that he was physically incapable of making a knowing and conscious refusal. Id. Where, as here, there is no obvious physical inability to do so, a licensee must prove that he was incapable of making a knowing and conscious refusal through competent and unequivocal medical testimony. Jacobs v. Department of Transportation, Bureau of Driver Licensing, 695 A.2d 956 (Pa.Cmwlth.1997), allocatur denied, 549 Pa. 750, 700 A.2d 443 (1997). In proving that a licensee was incapable of making a knowing and conscious refusal, he cannot rely upon the fact of his level of intoxication as being the cause of his inability to do so. See, Department of Transportation, Bureau of Driver Licensing v. Monsay, 142 Pa.Cmwlth. 163, 596 A.2d 1269 (Pa.Cmwlth.1991); Appeal of Cravener, 135 Pa.Cmwlth. 480, 580 A.2d 1196 (Pa.Cmwlth.1990). Indeed, part of the licensee’s burden in these types of cases is to establish that his alcohol ingestion played no part in rendering him incapable of making a knowing and conscious refusal. DiGiovanni v. Department of Transportation, Bureau of Driver Licensing, 717 A.2d 1125 (Pa.Cmwlth.1998); Gombar, 678 A.2d at 847 (“[I]f a motorist’s inability to make a knowing and conscious refusal of testing is caused in whole or in part by the consumption of alcohol, the motorist’s affirmative defense fails.”) sub judice, In the case Officer Julseth, based on the information he received from Officer Sheetz and his own investigation, had reasonable grounds to believe that Elizabeth Sheetz had operated a motor vehicle on Clearfield Drive while under the influence of alcohol. He arrested her for driving under the influence. When she was asked to submit to a breath test to measure her blood alcohol content, she refused after she was warned that a refusal would result in the suspension of her operating privilege. She did not present any medical evidence that she was physically incapable of making a knowing and conscious refusal. Despite whatever confusion she may have had when -3- 07-4769 CIVIL TERM she was asked to perform a breath test, she refused to blow into the machine and told Agent Carroll that she would not take the test. Failing to blow into the machine and perform two valid tests within the reasonable amount of time afforded her constituted a refusal which supports the suspension of her driving privilege. ORDER OF COURT AND NOW, this day of January, 2008, the within appeal from the IS DISMISSED. suspension of driving privilege for a period of one year, By the Court, ________________ Edgar B. Bayley, J. George Kabusk, Esquire For the Department of Transportation Michael O. Palermo, Jr., Esquire For Petitioner :sal -4- ELIZABETH H. SHEETZ, : IN THE COURT OF COMMON PLEAS OF PETITIONER : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, BUREAU : OF DRIVER LICENSING, : RESPONDENT : 07-4769 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE ORDER OF COURT AND NOW, this day of January, 2008, the within appeal from the IS DISMISSED. suspension of driving privilege for a period of one year, By the Court, ________________ Edgar B. Bayley, J. George Kabusk, Esquire For the Department of Transportation Michael O. Palermo, Jr., Esquire For Petitioner :sal