Opinion
Argued November 3, 1978
December 21, 1978.
Motor vehicles — Suspension of motor vehicle operator's license — Refusal of breath test — The Vehicle Code, Act 1959, April 29, P.L. 58 — Scope of appellate review — Findings of fact — Sufficient evidence — Error of law — Abuse of discretion.
1. Under The Vehicle Code, Act 1959, April 29, P.L. 58, a suspension of a motor vehicle operator's license is justified when the licensee is requested to submit to a breath test after being arrested for driving while under the influence of intoxicating liquor and fails to give an unequivocal assent to submit to such test. [388]
2. Action of a lower court in a motor vehicle operator's license suspension case will be affirmed on appeal unless findings of fact were unsupported by competent evidence, erroneous conclusions of law were applied or a manifest abuse of discretion was exhibited. [389]
Argued November 3, 1978, before Judges MENCER, DiSALLE and CRAIG, sitting as a panel of three.
Appeal, No. 300 C.D. 1978, from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Joseph Ewing, No. SA 626 of 1977.
Suspension of motor vehicle operator's license by Bureau of Traffic Safety. Licensee appealed to the Court of Common Pleas of Allegheny County. Appeal dismissed. WATSON, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
William E. Stockey, with him Lewis Stockey, for appellant.
John Kennedy, Deputy Attorney General, with him Bradley L. Mallory, Assistant Attorney General, Harold H. Cramer, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Gerald Gornish, Acting Attorney General, for appellee.
Appellant's motor vehicle operator's license was suspended by the Secretary of Transportation for six months, pursuant to Section 624.1(a) of The Vehicle Code for refusal to take a breathalyzer test. The Court of Common Pleas of Allegheny County dismissed an appeal of that suspension and the present appeal followed. We affirm the suspension.
Act of April 29, 1959, P.L. 58, as amended, added by Section 1 of the Act of July 28, 1961, P.L. 918, as amended, formerly 75 Pa.C.S.A. § 624.1(a), repealed by the Act of June 17, 1976, P.L. 162. A similar provision is now found in The Vehicle Code, 75 Pa. C.S. § 1547.
The lower court correctly held that a license suspension is justified by anything short of an unequivocal acceptance of a request to take the breathalyzer test. Dep't of Transportation, Bureau of Traffic Safety v. Drugotch, 9 Pa. Commw. 460, 308 A.2d 183 (1973).
The issue raised in this case is whether the officers administering the breathalyzer test did in fact make a sufficient request of appellant so that appellant's actions in fact constituted a refusal.
In an appeal arising from a suspension of a motor vehicle driver's license, the action of the lower court will not be disturbed unless its findings are not supported by competent evidence or the lower court made erroneous conclusions of law, or its decision exhibits a manifest abuse of discretion. Dep't of Transportation, Bureau of Traffic Safety v. Drugotch, supra, at 461, 308 A.2d at 184.
After carefully reviewing the record below, we hold that the court's findings, that there was a request to take the test and a refusal to do so, were supported by competent and substantial evidence.
ORDER
AND NOW, this 21st day of December, 1978, the order of the Common Pleas Court at No. SA 626, January 17, 1978 affirming the Bureau of Traffic and Safety, Department of Transportation's suspension of appellant's operator license is affirmed.