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Petohazi v. Commonwealth11/1/2005
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Allegheny County (trial court), sustaining the statutory appeal of Frank Petohazi (Licensee) and reversing the one-year suspension of Licensee's operating privilege imposed by DOT pursuant to Section 1547(b)(1)(i) of the Vehicle Code (Code), 75 Pa. C.S. §1547(b)(1)(i). We now reverse.
On the evening of May 23, 2004, Sergeant Todd Fetzko of the Munhall Police Department was dispatched to 2601 Main Street for a complaint of a minor vehicle accident. The complainant had requested police assistance after she observed a vehicle driven by Licensee strike her vehicle twice as he was attempting to park. After arriving at the scene, Sergeant Fetzko made contact with the complainant. The complainant described her observations and informed Sergeant Fetzko that she attempted to call Licensee over but he proceeded to stagger into his residence and he appeared to be intoxicated. The complainant provided Sergeant Fetzko with a description of the Licensee and thereafter identified his residence.
Sergeant Fetzko proceeded to Licensee's residence where he knocked for some time with no answer. Eventually, Licensee answered the door and acknowledged that he was the driver of the car identified by complainant. At that time, Sergeant Fetzko noticed that Licensee had a glaze to his eyes, an odor of alcohol on his breath and slurred speech. Upon questioning by Sergeant Fetzko, Licensee denied hitting the complainant's vehicle. Nevertheless, Sergeant Fetzko asked Licensee to submit to some field sobriety tests. Licensee complied with this request and performed the tests, all three of which were deemed failures by Sergeant Fetzko.
After failing the tests, Sergeant Fetzko advised Licensee that he was being placed under arrest for driving under the influence (DUI). Sergeant Fetzko thereafter requested that Licensee submit to chemical testing, vaguely advising him that the right to counsel did not apply to chemical testing under the Implied Consent Law and that failure to submit to the testing would result in the suspension of his driver's license. Licensee was reluctant to submit to such testing at that time and, after further discussions with Sergeant Fetzko, Licensee was transported to the local police station.
Sergeant Fetzko obtained DOT's DL-26 form, the implied consent warnings form, and read this form verbatim to Licensee. Licensee initially refused to sign the DL-26 form acknowledging that he had been informed of his rights under the Implied Consent Law. Licensee did eventually sign the form. Several minutes after signing the form and refusing the chemical testing, Licensee advised Sergeant Fetzko that he was willing to submit to the testing. However, Sergeant Fetzko denied Licensee's request, informing him that it was too late. Sergeant Fetzko thereafter notified DOT of Licensee's refusal to submit to chemical testing.
By letter mailed September 6, 2004, DOT informed Licensee that it was suspending his operating privilege for a period of one year as a result of his refusal to submit to chemical testing on May 23, 2004. Licensee filed a statutory appeal with the trial court. A hearing de novo was scheduled and held before the trial court on January 13, 2005. At this hearing, DOT presented the testimony of Sergeant Fetzko. Sergeant Fetzko testified as to the facts surrounding the accident and his subsequent investigation and arrest of Licensee as described above.
As to the arrest, Sergeant Fetzko testified that he "verbally informed [Licensee] at that point of vaguely what are his O'Connell warnings, if he does not submit he would b
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