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Krieger v. Commonwealth6/15/2005
to the facts of this case continue an errant trend of treating these precedents as a clear cut laundry list of acceptable and unacceptable injuries per se, as opposed to allowing the Trial Court to weigh the evidence and find the facts. The precedents cited by the Majority, if read closely, present sets of facts and injuries that could produce contradictory dispositions if examined outside the realm of credibility determinations, and could in fact have gone either way. The true import of Day is not the specific list of physical injuries that were found therein to support that licensee's contention that his refusal was not knowing or conscious. Similarly, the specific injuries cited in the cases that followed in Day's wake addressing the instant issue do not provide persuasive or binding precedent to subsequent cases by expanding or contracting a rote list of acceptable or insufficient injuries. Quite contrarily -- and expressly evident, when the language of Day is examined for its true foundation -- the import of this line of cases is our statement that:
With regard to the motorist's physical condition, each case must be decided on its individual facts. The trial judge determines the credibility of the witnesses and the weight of their testimony. Taking into consideration the appellee's physical condition, and all the attendant circumstances, the evidence was substantial enough to support the trial judge's finding that the refusal was not conscious and knowing, even absent medical testimony to form a nexus between the injuries sustained and the refusal to take the test.
Day, 500 A.2d at 215 (emphasis added). It is not the specific list of injuries recited in Day, and the related cases, that determine the disposition of conscious and knowing test refusals in license suspension cases. It is the existence of substantial evidence including and beyond a licensee's own testimony, as weighed and adjudged as credible by the finder of fact, that is both the foundation, and precedential import, of this line of cases. The Majority's disposition in the instant matter fails to recognize that crucial distinction, and intrudes upon the exclusive fact finding function of the Trial Court, in its disposition herein.
Accordingly, I would affirm.
JAMES R. KELLEY, Senior Judge
Page 1 2 3 4 Pennsylvania DUI Attorneys
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