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Krieger v. Commonwealth6/15/2005
The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Bucks County (trial court) sustaining Robert J. Krieger's (Licensee) appeal and vacating the suspension of Licensee'soperating privilege imposed by the Department for refusing to submit to chemical testing pursuant to Pennsylvania's Implied Consent Law (Implied Consent Law).
By official notice dated November 14, 2003, the Department notified Licensee that his driving privilege was being suspended for a period of one year, effective December 19, 2003, as a consequence of his reported refusal to submit to chemical testing on October 18, 2003, as mandated by Section 1547 of the Implied Consent Law, 75 Pa. C.S. §1547(b). Licensee timely appealed that notice to the trial court.
Before the trial court, the Department called Officer Keith Bertram (Officer Bertram), who testified that he had been called to the scene of a motor vehicle crash on October 18, 2003. Upon arriving at the scene, Officer Bertram observed a car approximately 50 to 75 feet from the roadway "up on a fence post." He also testified that although there was no operator at the scene, the dispatch gave a description of an individual who had fled the scene. After proceeding to search the area, Officer Bertram found Licensee hiding in some brush along an embankment. According to Officer Bertram, Licensee matched the dispatch description and "was slow and lethargic as he came out of the brush to be handcuffed and taken into custody, he had slurred speech, and there was an odor of alcoholic beverage emanating from him." Licensee was transported by ambulance to Lower Bucks Hospital for treatment for a bleeding laceration on his head. Officer Bertram also testified that on the night of October 18, 2003, he contacted Sergeant Steven Mawhinney (Sergeant Mawhinney), the supervisor for the patrol division of Bristol Township, and asked him to come to Lower Bucks Hospital and supply a copy of the Department's form for refusal to submit to blood alcohol testing.
Officer Bertram testified that at the hospital, he had asked Licensee to take a blood test and told him the consequences of refusing to take the blood test, but that, "[Licensee] proceeded that he didn't understand what I was saying, that he was not aware of what I was saying." Officer Bertram testified that he tried to "coax [Licensee] into taking the test," and although he never outright refused to take it, "He just kept playing off or kept stating that he wasn't sure what I was saying, he didn't understand what I was saying." Officer Bertram stated that during the time he was speaking with Licensee, medical professionals were examining him.
The Department then called Officer Avril Hughes (Officer Hughes), who testified that she also responded to investigate the crash and was with Officer Bertram when they took Licensee into custody. She testified that she observed blood on some of the broken glass inside the car. She also concluded that Licensee was intoxicated because she could smell alcohol on his breath while speaking with him, he appeared to be slightly disoriented, and when she asked him if he had been drinking, he said he had.
The Department also called Sergeant Mawhinney who testified that he had been called to Lower Bucks Hospital by Officer Bertram to bring down the Department's form for refusal to submit to blood alcohol testing. He testified that he also asked Licensee to submit to a chemical test by reading the Department's DL-26 form word for word to Licensee. After Licensee refused, Sergeant Mawhinney wrote the word blood in the blank on the form, indicated the date and time that he read it to Lice
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