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HomeMy WebLinkAbout2004-4847 Civil IVO MARTINOVIC, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE 04-4847 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL OPINION AND ORDER OF COURT Bayley, J., February 10, 2005:-- Ivo Martinovic filed an appeal from the suspension of his driving privilege by the Department of Transportation for one year for refusing a chemical test following his arrest for driving under the influence on June 26,2004. 75 Pa.C.S. Section 1547. A hearing was conducted on February 7,2005. As set forth in Balthazar v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 123 Pa. Commw. 435 (1989): An operator's driving privileges may be suspended for refusal to submit to alcohol testing where the Department 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 alcohol testing; (3) refused to do so; and (4) was warned that his license would be revoked if he refused to take the test. 1m v. Department of Transportation, 108 Pa. Commonwealth Ct. 206, 529 A.2d 94 (1987). Once the Department has shown that a motorist refused to submit to chemical testing, the burden shifts to the motorist to prove by competent evidence that he was unable to make a knowing and conscious refusal. 1m. (Footnote omitted.) 04-4847 CIVIL TERM The Commonwealth proved that in the early morning of June 26, 2004, appellant was stopped for speeding in the Borough of Lemoyne by Officer Timothy Hutchinson of the West Shore Regional Police Department. After conducting an investigation at the scene, including field sobriety testing, Officer Hutchinson had reasonable grounds to believe that appellant was intoxicated. Officer Hutchinson testified that appellant answered, in broken English, "Yes" to many of his questions, said he had been fishing, and had not been drinking. The officer placed him under arrest for driving under the influence, and took him to a booking center. An attempt was made to obtain an interpreter for appellant, who speaks Serbo-Croatian, but one was not available. While being videotaped, Officer Hutchinson read Implied Consent warnings to appellant. He then said, "Will you submit to a chemical test of your breath. Will you blow into that machine?" Appellant looked at the machine. Hutchinson then blew into his hands and said, "blow into that machine - will you do that?" Appellant shook his head. Hutchinson said, "Will you do that?" Appellant shook his head and mumbled something. Hutchinson said, "Will you say it loud - yes - louder - yes - are you going to do it?" Appellant mumbled something, blew into his hands, shrugged his shoulders, and mumbled some more. Hutchinson said, "Yes or no." Appellant mumbled something that is not decipherable on the videotape. Hutchinson said, That's yes." The booking agent agreed. A booking agent operated a BAC Data Master that was certified accurate, properly calibrated, and functioning properly. He gave appellant three opportunities to -2- 04-4847 CIVIL TERM perform a breath test. During each opportunity appellant blew an insufficient amount of air into the machine despite repeated instructions, and physical descriptions, to keep a tight seal around the mouthpiece, and to blow a steady flow of breath until told to stop. The operator stopped the testing and wrote up a refusal. He testified that appellant said he knew some English and had taught some English in Germany. Appellant testified through an interpreter at the hearing on his appeal. He is age 52. He states that he does not speak English. He was born in the former Yugoslavia. He immigrated to the United States from Bosnia, Herzegovina in 1997. He has never learned to speak English. He tried some lessons but quit. He is an electrician, but his attempts to keep such a job here have failed because he cannot speak English. Soon after he arrived in Pennsylvania he obtained a driver's license with the help of an interpreter. He works in a warehouse where there are some other employees who speak Serbo-Croatian. When he obtained his warehouse job, his sister, who emigrated from Bosnia, Herzegovina a year before appellant, and who now speaks English, went with him in order to explain the work he was required to perform. He has no idea how the Data Master operator could have ever thought that he taught English in Germany, or how Officer Hutchinson could ever have thought that he was fishing in the middle of the night. Appellant's sister testified and confirmed that her brother does not speak English. After listening to her and appellant and viewing and listening to the videotape, and despite Officer Hutchinson's testimony that he believed that appellant understood -3- 04-4847 CIVIL TERM all of what he said to him, we are fully satisfied that appellant has proven that he does not speak English sufficiently to have possibility understood the Implied Consent warnings. While he routinely answered "yes" to questions by Officer Hutchinson at the scene of the stop, that is of little significance given the fact that he speaks virtually no English. Therefore, unlike the facts in Balthazar, we find that because of appellant's lack of understanding of English, that Officer Hutchinson did not adequately warn him that his license would be suspended if he refused to take a test. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of February, 2005, the order of the Department of Transportation, Bureau of Driver Licensing, suspending the driving privilege of Ivo Martinovic for one year, IS REVERSED. By the Court, Edgar B. Bayley, J. George H. Kabusk, Esquire For the Department of Transportation Joseph D. Caraciolo, Esquire For Appellant :sal -4- IVO MARTINOVIC, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE 04-4847 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this day of February, 2005, the order of the Department of Transportation, Bureau of Driver Licensing, suspending the driving privilege of Ivo Martinovic for one year, IS REVERSED. By the Court, Edgar B. Bayley, J. George H. Kabusk, Esquire For the Department of Transportation Joseph D. Caraciolo, Esquire For Appellant :sal