 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Krieger v. Commonwealth6/15/2005
nsee and that Licensee refused, and then signed the form on the bottom. The form was admitted into evidence. On cross-examination, Sergeant Mawhinney admitted that he could not recall the exact words Licensee used in making his refusal to submit to chemical testing. He also testified that Licensee did not appear disoriented to him at all.
In response, Licensee testified that he recalled the crash and knew that he sustained a gash on the side of his head. He also remembered trying to get out of the car and that he had "stumbled off to the side and I was laying there, and that's all I remember." (Reproduced Record at 46a.) Licensee testified that he received nine staples in his head for the open wound on the side of his head. However, Licensee testified that he did not recall either Officer Bertram or Sergeant Mawhinney being present with him at the hospital.
After finding that the Department met its initial burden of proof and finding Licensee's testimony to be credible, the trial court held that as a result of injuries sustained in the automobile accident on October 18, 2003, Licensee was unable to make a knowing and conscious refusal to submit to the blood test. This appeal followed.
On appeal, the Department argues that the trial court's findings that Licensee suffered serious injuries whose debilitating effects were obvious and that he was incapable of making a knowing and conscious decision to refuse chemical testing as a result of injuries received in a single car crash were not supported by competent evidence. Specifically, the Department argues that Licensee did not suffer obvious, severe and incapacitating injuries and, as such, he was required to offer expert medical testimony in order to satisfy his burden of proof, which he did not.
While medical testimony is normally necessary to establish the inability to make a conscious refusal to a chemical test, such testimony is not necessary when severe, incapacitating injuries are obvious. Department of Transportation, Bureau of Driver Licensing v. Garlan, 550 A.2d 873 (Pa. Cmwlth. 1988), petition for allowance of appeal denied, 522 Pa. 614, 563 A.2d 499 (1989).
See e.g., Department of Transportation, Bureau of Traffic Safety v. Day, 500 A.2d 214 (Pa. Cmwlth. 1985) (a broken jaw, severe facial lacerations, a broken arm, an injured leg and blows to the head were sufficiently severe and obvious to obviate the need for expert medical testimony). Conversely, injuries that are less severe, and where it cannot be determined that the injury or the intoxication was the cause of the refusal, require expert medical testimony to establish that a refusal was not knowing and conscious. See e.g., Department of Transportation, Bureau of Driver Licensing v. Holsten, 615 A.2d 113 (Pa. Cmwlth. 1992) (licensee sustained multiple superficial facial lacerations, a deep laceration on his right eyelid, a burn on his right hand, and a possible fracture involving the right orbital floor extending into the superior portion of the right maxillary sinus and medical testimony was still needed to present any evidence that he was obviously incapable of complying with the request to submit to a chemical test). See also Department of Transportation, Bureau of Driver Licensing v. Garlan, 550 A.2d 873 (Pa. Cmwlth.), petition for allowance of appeal denied, 522 Pa. 614, 563 A.2d 499 (1989) (a concussion, a corneal abrasion, bruises and a loss of memory did not meet his burden); Maletic v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 640 (Pa. Cmwlth. 2003) (a bump on her head, a black and blue, swollen lump on her forehead and two black eyes but able to converse with a police officer did not meet this burden); Departme
Page 1 2 3 4 Pennsylvania DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|