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Acosta v. Commonwealth7/18/2001
pt the concept of duress as a defense in criminal cases, courts should likewise accept duress as a defense to the Department's suspension on the theory that a person should not be penalized for acts committed under force or compulsion.
Duress is an affirmative defense and requires proof of immediate or imminent threat of death or serious injury, well-grounded fear that the threat will be carried out and no reasonable opportunity to escape the threatened harm except by committing the criminal act. Commonwealth v. Hilburn, 746 A.2d 1146 (Pa. Super. 2000). Assuming arguendo that the duress defense may apply, the Court agrees with the trial court that the elements were not satisfied in this case. When Trooper Lamon observed Appellant in his vehicle, he was not in any immediate or imminent threat of death or serious bodily injury; he was not under pursuit by the night auditor; and he was not engaged in flight from anyone threatening him with bodily injury. As the trial court found, Appellant was not acting under duress when he refused to submit to the blood test.
The Court agrees with the Department that proof that a motorist voluntarily operated a motor vehicle is not an element of the Department's burden of proof in license suspension proceedings under 75 Pa. C.S. §1547(b). Banner. To require that a motorist operate a motor vehicle voluntarily before the motorist may be subject to the implied consent requirements of the Vehicle Code would exceed the clear intent of the Legislature when it enacted Section 1547(a). Department of Transportation, Bureau of Driver Licensing v. Bird, 578 A.2d 1345 (Pa. Cmwlth. 1990). While novel in its approach, Appellant's argument is not supported by statutory or case law. Accordingly, because the Department met its burden of proof in this case, the Court affirms the order of the trial court.
DORIS A. SMITH, Judge
ORDER
AND NOW, this 18th day of July 2001, the order of the Court of Common Pleas of Westmoreland County is hereby affirmed.
DORIS A. SMITH, Judge
Page 1 2 Pennsylvania DUI Attorneys
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