Herbert v. Commonwealth

Opinion by Judge Williams, Jr., In this appeal, appellant Philip Herbert seeks -reversal of an order of the Court of Common Pleas of Butler County upholding the suspension of appellant’s motor vehicle operator’s license by the Department of Transportation (Department). The Department suspended appellant’s driver’s license for refusal to comply with a police officer’s request to submit to a breathalyzer test. Shortly ¡after midnight on July 19, 1980, appellant was involved in an automobile accident at the intersection of West Pearl Street and North Main Street in the City of Butler. Upon arrival at the .scene of .the accident, the investigating officers, Lieutenant Stirling and Patrolman Botsis, observed Mr. Herbert staggering about near his vehicle, detected a strong odor of alcohol on his breath, and noted that his speech was slurred. Based upon these Observations, Patrolman Botsis arrested appellant for operating a motor ve *30 Mole while under the influence of alcohol, and transported him to the Butler City police station where he was later released from custody. On August 11, 1980, Mr. Herbert was notified by tbe Department that Ms operating privileges were being suspended for a period of six (6) months, pursuant to Section 1547(b) (1) of toe Vehicle Code, 1 for refusal to submit to a breathalyzer test. From that suspension appellant appealed to toe Court of Common Pleas of Butler 'County, ¡which ¡affirmed toe suspension by order dated November 7,1980. It is an appeal from that order which is now before itois Court. At toe de novo hearing held before toe court below, toe testimony presented was conflicting with respect to toe events which resulted in toe suspension of appellant’s driver’s license by toe Department. Patrolman Botsis testified, as did Lieutenant Stirling, that when they arrived at toe scene Patrolman Botsis asked appellant if he was injured in any way. When Mr. Herbert replied that he was not, the patrolman asked him to take a breathalyzer test and also advised him that failure to consent to toe ¡test ¡would result in the automatic suspension of his license. According to both officers, toe appellant, in response, stated that he would not submit to toe test. In addition, toe patrolman testified that he also ¡requested appellant to take toe test and apprised him of the consequences of a refusal en route to toe police station. Once again, toe appellant withheld his consent, and at that point, *31 stated that he wished to consult with counsel. 2 Because Mr. Herbert twice refused to comply with Ms requests, Patrolman Botsis did not admimster the breathalyzer test at the police station. ■ • The appellant, on the other hand, testified that he cóúld not recall’ being asked at the scene to consent to á breathalyzer test, nor being warned at that time that refusal" to take the test would result in a suspension of Ms' license. .Mr. Herbert did remember Patrolman Botsis “discussing” the breathalyzer test with him inside the police' cruiser and “indicating” that it would be administered at the police station, but he denied that the officer specifically requested him to submit to the test. Mr. Herbert further testified that before he and Patrolman Botsis departed the accident scene for the police station, he overheard someone mention that his attorney was present; when he asked to confer with counsel, he was not permitted to do so. • We have frequently articulated the rule that in order' for a suspension for refusal to submit to a chemical test of breath to be sustained, the Department must prove that the driver was placed under arrest upon a charge of driving while intoxicated, was requested to submit to a breathalyzer test, and refused to do so. E.g., Harper Appeal, 57 Pa. Commonwealth Ct. 89, 426 A.2d 196 (1981). Additionally, we have held that the operator must be warned that a suspension of Ms license will follow from a refusal to submit to a breathalyzer test. Grabish v. Commonwealth, 50 Pa. Commonwealth Ct. 246, 413 A.2d 431 (1980). Once the Commonwealth has proved 'the above elements, the burden then shifts to the appellant to prove that he was physically incapable of making a knowing *32 and conscious refusal to take the test. Capozzoli Appeal, 63 Pa. Commonwealth Ct. 411, 437 A.2d 1840 (1981). With respect ¡to the above elements, (the appellant in ¡the instant matter claims that the evidencie presented before the trial court was insufficient to establish a conscious .and knioiwing refusal to submit to a breathalyzer test. More particularly, Mr. Herbert asserts that he was in a state of .shock and confusion following the accident, and .therefore was unable to understand any requests to take the test and was incapable of making knowing, conscious decisions. Whether a driver is capable of making a knowing and conscious refusal is a factual determination for the court below, Capozzoli Appeal, supra, and questions of credibility and the resolution of testimonial conflicts are for the court which hears the testimony. McMahon v. Commonwealth, 39 Pa. Commonwealth Ct. 260, 395 A.2d 318 (1978). It was, therefore, within the province of the trial judge to accept as credible evidence the testimony that appellant was twice requested and twice refused to submit to ,a breathalyzer test, land to infer from all the evidence that appellant was capable of making a knowing refusal. Herring v. Commonwealth, 50 Pa. Commonwealth Ct. 608, 413 A.2d 1171 (1980). We will not disturb this finding on appeal. In addition, the appellant argues that the .suspension of his driver’s license was unlawful because he was denied the right to consult with counsel. He contends that, because bis attorney was present at the scene of the accident, notions of fundamental fairness and due process dictated that he be granted the right to assistance of counsel. We have consistently held that, since the suspension of an operator’s license for refusal to take a breathalyzer test is a civil proceeding, a licensee has *33 no constitutional or statutory right to confer with an attorney before deciding whether or not to take the test. Department of Transportation, Bureau of Traffic Safety v. Wroblewski, 65 Pa. Commonwealth Ct. 333, 442 A.2d 407 (1982); Weitzel Appeal, 41 Pa. Commonwealth Ct. 235, 400 A.2d 646 (1979); Department of Transportation v. Cannon, 4 Pa. Commonwealth Ct. 119, 286 A.2d 24 (1972). Furthermore, the remedial purposes of the Vehicle Code and the rapidity with which the body eliminates alcohol ingested in the system require prompt administration of a chemical test of breath; and consultation with an attorney, even where counsel is present when a request for consultation is made, necessarily involves delay. See Morris Motor Vehicle Operator License Case, 218 Pa. Superior Ct. 347, 280 A.2d 658 (1971). Accordingly, appellant’s request was properly refused. Fox the foregoing reasons, the order of the court below is affirmed. Order And Now, the 9th day of June, 1983, the order of the Court of Common Pleias of Butler County dated November 7,1980, upholding the license isuspension of Philip Herbert, is hereby affirmed. Footnotes [1] 75 Pa. C. S. §1547(ib) (1). This Section provides in pertinent part : If any person placed nnder arrest for driving under the influence of alcohol is requested to submit to a chemical test and refuses to do so, the test shan not be given but upon notice by the police officer, the department shall: (i) suspend the operating privilege of the person for a period of six months. ... [2] Lieutenant Stirling did not accompany Patrolman Botsis and the appellant to the police station, and thus did not corroborate this portion of the patrolman’s testimony.