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Foringer v. Commonwealth5/19/2005
Gregory A. Foringer (Licensee) appeals an order of the Court of Common Pleas of Clarion County (trial court) dismissing his appeal from a one-year license suspension issued by the Department of Transportation (Department), Bureau of Driver Licensing (Bureau), for failing to submit to chemical testing under Pennsylvania's Implied Consent Law, 75 P.S. §1547(b)(1).
On May 7, 2004, the Department issued to Licensee a notice of suspension of his operating privileges for a period of one year for failing to submit to a blood alcohol test under Section 1547(b)(1) of the Implied Consent Law. On June 7, 2004, Licensee timely appealed that determination to the trial court.
At the de novo hearing, Officer William Scheckler (Officer Scheckler) testified for the Department that on the night of April 15, 2004, Officer Scheckler received a tip from a bartender of a local bar in Clarion Borough (Borough) that an intoxicated man was leaving the bar and preparing to drive away in a white Ford truck. Officer Scheckler responded and noticed a white Ford trailing a red Ford truck. Officer Scheckler notified another officer on duty to follow the white Ford, and Officer Scheckler followed the red Ford.
Officer Scheckler testified that while following the red Ford, he twice noticed that the red Ford swerved a bit; specifically, Officer Scheckler observed Licensee weaving within the driving lane, crossing the yellow line but not hitting the curb, and swerving towards the double yellow lines, all within Borough limits. About 3/10 of a mile outside the Borough, Officer Ford noticed the red Ford swerve and almost hit a speed limit sign. At that point, Officer Scheckler sounded his siren, turned on his flashing lights, and pulled the driver over. Officer Scheckler smelled alcohol on Licensee's breath and observed that he had glassy, bloodshot eyes. After administering three field sobriety tests (all of which Licensee failed) and a pre-arrest breath test indicating that Licensee was under the influence, Officer Scheckler arrested Licensee for driving under the influence pursuant to Section 3802(a)(1) of the Vehicle Code, 75 Pa. C.S. §3802(a)(1).
Officer Scheckler testified that he took Licensee to the local hospital to administer a blood-alcohol test. Officer Scheckler stated that upon arriving at the hospital, he took Licensee aside and read him his O'Connell warnings verbatim from an Implied Consent Form DL-26. When Officer Scheckler asked whether Licensee understood the warnings, Licensee said he understood.
Officer Scheckler then testified that he asked Licensee to submit to the test; Licensee initially said no, but then asked Officer Scheckler for his advice. Officer Scheckler testified that he told Licensee that he (Officer Scheckler) could not make that decision for him. Officer Scheckler testified that he gave Licensee more time than usual to make up his mind because he knew him, and Licensee finally agreed to take the test while they were outside the hospital. As they began to walk towards the hospital, however, Licensee tried to run away, and Officer Scheckler caught up to him and took him back to the police car. Officer Scheckler testified that Licensee refused to consent to the blood-alcohol test.
On cross-examination, Officer Scheckler admitted that the tip he received concerned a white Ford, not a red Ford, and he admitted that he did not activate his emergency lights to pull Licensee over while still within the Borough. He also admitted that he was 3/10 of a mile outside Borough limits when he observed Licensee swerve and nearly hit the speed limit sign. Officer Scheckler stated, however, that he observed Licensee swerving within Borough limits.
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