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Moretti v. Commonwealth11/2/2005
ake a chemical test. Accordingly, the Department of Transportation's Suspension of the [Moretti's] operating privileges was proper.
Trial Court Opinion, December 16, 2004, at 2. Moretti now appeals to our Court.
Moretti contends that the trial court erred in finding that she knowingly refused to take a breath or blood chemical test after agreeing to take a breath test, that Trooper Robbins never read her the O'Connell warning, that the DL-26 form indicates that Claimant refused the breath test, when Trooper Robbins testified that she did not refuse the test, that there was conflicting testimony from the troopers as to who gave her the refusal and that she did tell the truth and was not driving while intoxicated.
To sustain a license suspension under Section 1547(b) of the Implied Consent Law, the Department must demonstrate that the licensee: (1) was arrested for driving under the influence of alcohol; (2) was asked to submit to chemical testing; (3) refused to do so; and (4) was specifically warned that a refusal would result in the suspension of her operating privilege. Carlin v. Department of Transportation, Bureau of Driver Licensing, 739 A.2d 656 (Pa. Cmwlth. 1999), appeal denied, 563 Pa. 678, 759 A.2d 924 (2000). If the Department is able to sustain its burden, the burden then shifts to the licensee to prove that she was physically unable to take the test or that she was incapable of making a knowing and conscience refusal. Department of Transportation, Bureau of Driver Licensing v. Wilhelm, 626 A.2d 660 (Pa. Cmwlth. 1993).
In the present controversy, the Department presented evidence that Moretti was arrested for DUI, that Trooper Robbins had reasonable grounds to believe that Moretti was driving while under the influence of alcohol in the Commonwealth, that Trooper Robbins had asked Moretti to submit to chemical testing, that Trooper Robbins warned Moretti that a refusal to submit to such testing would result in the suspension of her operating privileges and that Moretti initially agreed, but later refused to submit to the testing. The trial court found the troopers credible and Moretti not credible. Credibility determinations are for the trial court and not this Court. Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). If the findings of the trial court are supported by substantial evidence of record, we must give deference to the trial court. Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594 (Pa. Cmwlth. 2003). A review of the record reveals that the trial courts findings were supported by substantial evidence. Thus, the Department did meet its burden as required under Section 1547(b) of the Implied Consent Law.
Accordingly, we must affirm the decision of the trial court.
ORDER
AND NOW, this 2nd day of November, 2005 the order of the Court of Common Pleas of Butler County in the above-captioned matter is affirmed.
JIM FLAHERTY, Senior Judge
Page 1 2 Pennsylvania DUI Attorneys
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