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Moretti v. Commonwealth11/2/2005
Terilea Moretti (Moretti) appeals, pro se, from an order of the Court of Common Pleas of Butler County (trial court) which denied and dismissed Moretti's appeal and sustained the suspension of her driver's license for a period of one year for violation of Section 1547 of the Vehicle Code, commonly referred to as the Implied Consent Law, 77 Pa.C.S. §1547. We affirm.
On April 24, 2004, Trooper Christopher Robbins (Trooper Robbins), a Pennsylvania State Police Trooper, observed Moretti driving with difficulty through the McDonalds' drive-thru while the restaurant was closed. Moretti drove over the curb and turned left out of the McDonalds' parking lot when there were three signs indicating "no left turn." Trooper Robbins stopped the vehicle, detected a strong odor of alcohol on Moretti and observed that her eyes were blood shot. Moretti proceeded to fail several field sobriety tests, was placed under arrest and became very combative when handcuffs were placed on her for her transport to the State Police barracks.
Trooper Robbins took Moretti back to the State Police barracks and gave her the O'Connell and Implied Consent warnings. Trooper Robbins testified that while at the barracks, he read the DL-26 form to Moretti and then signed the form. Moretti initially agreed to take the chemical test. However, Trooper Robbins then realized that the Breathalyzer was out of service and he indicated to Moretti that he needed to take her to either the Butler City Police department or the Butler Hospital for testing. At this point "she got into a physical fight with me.." Notes of Testimony (N.T.), October 12, 2004, at 30. Trooper Robbins again attempted to handcuff Moretti to take her for testing. Moretti was still highly combative and Corporal Brad W. Mifsud (Corporal Mifsud) and Trooper Joe Sonafelt (Trooper Sonafelt) came to assist in handcuffing Moretti and in escorting her to the car.
Trooper Robbins again asked Moretti if she would agree to submit to the chemical testing and Moretti vehemently refused. Trooper Robbins stated that when asked if she would take the test, Moretti told him to "take the test and stick it where the sun doesn't shine." N.T. at 39.
Corporal Mifsud testified that chemical testing was explained to Moretti several times and that she refused to take the test every time. Trooper Sonafelt testified that he did not hear Moretti refuse to take the chemical test. However, he was not with them after he assisted in handcuffing Moretti. Trooper Sonafelt stated that he did go outside, but not at the same time that Trooper Robbins took Moretti out.
Moretti testified that Trooper Robbins never read her the Implied Consent warnings and that she did not recall Trooper Robbins telling her that if she did not submit to a breath test she would lose her license for a year. Moretti stated that Trooper Robbins did tell her that the Breathalyzer was out of service and that he would have to take her to Butler Hospital. Moretti stated that she " bsolutely" agreed to take the test. N.T. at 76. Moretti further stated that she told the troopers that she could not miss work and asked them if they could give her a ticket and let her go home. She stated that the troopers asked her if she was refusing and she said no, that she just wanted her ticket. She stated at that point they told her she refused and took her back in the barracks to do her paperwork.
The trial court found in pertinent part as follows: [Moretti] refused multiple times to take a chemical test after implied consent warnings. Her words and actions not only fell substantially short of an unqualified assent to a request to submit to a chemical test; [Moretti] explicitly refused to t
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