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HomeMy WebLinkAbout92-4201 CivilCOMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V• CIVIL ACTION - LAW EARNEST E. BECK 4201 CIVIL 1992 IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE OLER, J. ORDER OF COURT AND NOW, this 24th day of May, 1993, upon consideration of Appellant's Appeal from License Suspension, and following a hearing, the appeal is denied. By the Court, qWesley Oder, Jr., J. TODD HOOVER, ESQUIRE For the Appellant TERRY CIANTE, ESQUIRE For the Department of Transportation wcy COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V• CIVIL ACTION - LAW EARNEST E. BECK 4201 CIVIL 1992 IN RE: APPEAL FROM LICENSE SUSPENSION BEFORE OLER� J OPINION AND ORDER OF COURT This case is an appeal by Earnest E. Beck from a suspension of his operating privilege by the Pennsylvania Department of Transportation for a refusal to submit to a chemical test for determination of the alcoholic content of his blood under Pennsylvania's implied consent law-' A hearing was held on the appeal on May 24, 1993, before the undersigned judge. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered: FINDINGS OF FACT 1. The Appellant is Earnest E. Beck. 2. On October 15, 1992, the Appellant was arrested by Corporal Paul Kinsinger of the Susquehanna Township Police lAct of June 17, 1976, P.L. 162, Section 1, as amended, 75 Pa. C.S. Section 1547 (1992 Supp.). Department for driving under the influence, and transported to a hospital for extraction of blood for purposes of a blood alcoholic content test. 3. The Defendant's arrest was occasioned by an incident occurring at approximately 4:25 a.m. on the morning of October 15, 1992, and commencing at the Your Place Restaurant in the aforesaid township. 4. At the aforesaid time and place, the police officer was called to the establishment for the purpose of escorting an employee carrying funds to a bank. 5. At the aforesaid time and place, the officer's attention was directed to two motor vehicles in the parking lot of the establishment, which serves alcoholic beverages, by the employee whom the officer was to escort to the bank. 6. The employee advised the officer that the establishment preferred that all motor vehicles be removed from the premises after closing hours, and the officer approached one of the vehicles to so advise the occupant or occupants. 7. Upon arriving at one of the vehicles, which was a 1989 blue Ford custom van, the officer observed the Appellant, Earnest E. Beck, behind the wheel of the vehicle, and noticed several alcoholic beverage containers within the vehicle. 8. The officer spoke with the Appellant, and perceived a strong odor of an alcoholic beverage on his breath, as well as bloodshot eyes and slurred speech. 9. The officer advised the Appellant that he was not in a fit condition to drive and was assured by another occupant of the vehicle that that occupant would see to the Appellant's safe removal from the parking lot without Appellant's driving of the vehicle. 10. The officer advised the occupants that the establishment wished all vehicles removed from the lot and that he would return shortly to check on the condition of the parking lot. 11. Upon the officer's return to the area of the parking lot, he observed the Appellant's vehicle traveling onto a road in the area and followed the vehicle. 12. During the course of this process, the van initially traveled quite slowly and its tires touched the center line of the two-lane road several times. 13. When the road widened somewhat, the vehicle picked up speed and crossed the center line several times. 14. Eventually the vehicle crossed over the center line by a distance of two to three feet and continued for a period to travel in that manner in the oncoming lane, at which time the officer determined that it would be necessary to stop the vehicle. 15. The officer was initially unsuccessful in stopping the vehicle through utilization of the emergency light systems on his car, but he was able to effectuate a stop eventually by utilizing his siren in addition to the light systems. 16. The Appellant, who was driving the vehicle, exited from the van, stumbling as he got out. 17. The officer again noticed that the Appellant "reeked" with the smell of an alcoholic beverage. 18. The officer again noticed that he spoke with slurred speech. 19. The officer requested that the Appellant submit to certain field sobriety tests, and the officer observed that the Appellant staggered as he went to the area where the tests were to be administered. 20. The Appellant failed both the heel -to -toe test, losing his balance on steps two, four, seven, eight, nine, and the turn, as well as returning steps three, four, seven, and nine. 21. The Appellant also failed the one -leg stand test, eventually being able to maintain the position to the count of three only, at which time he almost fell and the officer terminated the test for his safety. 22. The officer observed a number of alcoholic beverage containers within the Appellant's vehicle. 23. The officer placed the Appellant under arrest for driving under the influence, and transported him, as aforesaid, to a hospital, where the Appellant refused to submit to a chemical test of his blood alcoholic content as provided for in the Commonwealth's implied consent law. 24. As a consequence of the aforesaid refusal, the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, sent the Appellant a notice dated November 3, 1992, advising that his operating privilege was to be suspended for a period of one year. appealed. 25. From this notice of suspension, the Appellant has 26. The officer in this case had probable cause to arrest the Defendant for driving under the influence and had reasonable grounds to believe that he had been driving, operating, or in actual physical control of the movement of a motor vehicle while under the influence of alcohol. DISCUSSION Under Section 1547(a) of the Vehicle Code, it is provided as follows: Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle ... 2 while under the influence of alcohol .... It is further provided in the act that "[i]f any person placed under arrest for a violation of Section 3731 (relating to driving under the influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.,'3 In the present case, the Court has found that the police officer was in compliance with the aforesaid statute. It follows that the Department was fully justified in sending the notice of suspension herein appealed from. ORDER OF COURT AND NOW, this 24th day of May, 1993, upon consideration of Appellant's Appeal from License Suspension, and following a hearing, the appeal is denied. By the Court, /s/ J. Wesley Oler, Jr J. 2Act of June 17, 1976, P.L. 162, Section 1, as amended, 75 Pa. C.S. Section 1547(a) (1992 Supp.). 3Act of June 17, 1976, P.L. 162, Section 1, as amended, 75 Pa. C.S. Section 1547(b)(1) (1992 Supp.). TODD HOOVER, ESQUIRE For the Appellant TERRY CIANTE, ESQUIRE For the Department of Transportation wcy