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Sfida v. Commonwealth6/17/2005
C.S. §1547(b)(1) only requires that from the totality of the circumstances, the licensee, at the time the testing request is made, would have inferred that he or she was under the custody and control of the police officer. Maletic v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 640 (Pa. Cmwlth. 2003). In this case, the Department argues that Licensee should have had the reasonable impression that he was not free to leave Officer Cassidy's presence, and that was sufficient to constitute the "custody and control" necessary to effectuate an "arrest" for purposes of Section 1547.
Ignoring whether the "totality of the circumstances test" has any application whatsoever when a police officer testifies that the licensee was never under arrest, and while the totality of the circumstances certainly establishes that Licensee could have been arrested for driving under the influence , the hard fact remains that, inexplicably, he was not. Despite what was written in an affidavit sent to the Department, Officer Cassidy testified that he never placed Licensee under arrest for driving under the influence and Licensee was never formally charged with driving under the influence arising out of the events on December 3, 2003. Specifically, the following exchange took place:
Q: [Licensee's Attorney] Under the affidavit part, would you please read the four numbers?
A: [Officer Cassidy] The above motorist was placed under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3731 of the vehicle code. And there were reasonable grounds to believe that the above motorist had been drinking, operating or in actual physical control of the movement of a motor vehicle while under the influence of alcohol or a controlled substance or both. But the above motorist was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed. Number two --
Q: Let me stop you right there just for a moment. Did that happen, what you just read in number one?
A: No.
Q: No. You did not arrest him for an DUI?
A: No, I did not.
Q: And there was not an accident involving injury or death, am I correct?
A: You're correct.
Q: So that part of the affidavit is not correct?
A: It didn't happen.
Q: It didn't happen. You don't have to read the other numbers. Thank you.
(Reproduced Record at 27a-28a.)
Whether a licensee has been "placed under arrest" for purposes of the implied consent law is a question of fact rather than a legal determination. McGlynn. This testimony is substantial evidence on which to support the trial court's finding that Licensee was not placed under arrest for driving under the influence on the evening of December 3, 2003. Accordingly, because an arrest for driving under the influence is required to sustain a one-year suspension imposed pursuant to 75 Pa. C.S. §1547(b)(1) for a chemical test refusal, the order of the trial court rescinding the suspension is affirmed.
AND NOW, this 17th day of June, 2005, the order of the Court of Common Pleas of Montgomery County dated October 7, 2004, in which it sustained the appeal of Edward M. Sfida, Jr. from a one-year suspension and directed the Department of Transportation, Bureau of Driver Licensing to rescind the suspension is affirmed.
DAN PELLEGRINI, JUDGE
Page 1 2 Pennsylvania DUI Attorneys
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