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Krieger v. Commonwealth6/15/2005
nt of Transportation, Bureau of Licensing v. Cochrane, 538 A.2d 614 (Pa. Cmwlth. 1988) (a minor cut on a licensee's head coupled with no medical testimony was not enough to meet this burden).
Licensee's condition in this case -- a bleeding laceration on the side of his head requiring nine staples to close the wound on his head, repeatedly responding that he did not understand what was being asked, and not recalling either Officer Bertram or Sergeant Mawhinney being present with him at the hospital -- is almost identical to the condition of licensee in Holsten where we held that medical testimony was needed because, absent expert medical testimony, a factfinder could not determine whether the refusal was due to licensee's medical condition rather than intoxication. Because his injuries were not so obviously severe and incapacitating that they alone would incapacitate him from making a knowing and conscious refusal to submit to chemical testing, Licensee was required to present expert medical testimony to establish that the injury caused his refusal to submit to testing. Accordingly, because Licensee did not present medical evidence, he failed to meet his burden necessitating that the order of the trial court be reversed.
AND NOW, this 15th day of June, 2005, the order of the Court of Common Pleas of Bucks County dated August 17, 2004, at No. 03-08079-30-6, sustaining Robert J. Krieger's appeal and vacating the suspension of hisoperating privilege imposed by the Department, is reversed.
DAN PELLEGRINI, JUDGE
DISSENTING OPINION BY SENIOR JUDGE KELLEY
I respectfully dissent.
The Majority intrudes on the exclusive function of the Court of Common Pleas of Bucks County (Trial Court) as the sole arbiter of credibility and evidentiary weight. Additionally, the Majority's application of Department of Transportation v. Day, 500 A.2d 214 (Pa. Cmwlth. 1985), and its progeny, misinterprets the foundational import of that precedent.
This Court's opinion in Herring v. Commonwealth, 413 A.2d 1171 (Pa. Cmwlth. 1980), addressed situations where a trial court examined the evidence presented to it, and made findings as to a driver's ability to knowingly refuse to consent to chemical testing in light of his injuries. In Herring we wrote:
Whether a driver is incapable of making a knowing and conscious refusal is a question of fact for the fact-finder, in this case the lower court. Regardless of the evidence of [licensee's] physical injuries, the lower court had the power to infer from all the evidence that he was capable of making a knowing refusal, or to reject his testimony that he suffered from an incapacity to do so. It is not for this Court to disturb that factual determination by the [trial court] in that regard.
Herring, 413 A.2d at 1174 (emphasis added).
In the matter sub judice, the Trial Court found Mr. Kreiger's (Licensee) testimony that his injuries prevented him from understanding the test request to be uncontradicted, and to be credible. R.R. at 69a; 46a-47a; 48a.
Additionally, significant corroborating evidence of Licensee's confused mental state exists, in the form of the testimony of the two responding officers. R.R. at 18a-19a; 21a; 22a; 26a-27a; 31a-32a. Further, the Department of Transportation entered no evidence refuting the extent of Licensee's injuries as established by the record in this case. As such substantial evidence of record exists in this matter supporting the Trial Court's findings of fact, this Court is without the authority to discount or reverse those findings. Olbrish.
Further, I believe the Majority's application of Day, and its progeny,
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