Commonwealth v. McDonald

Opinion by

Judge Doyle,

This is an appeal by the Pennsylvania Department of Transportation (DOT) from an order of the Court of Common Pleas of Philadelphia County reversing a DOT action suspending the operating privileges of Thomas F. McDonald (Licensee) for refusal to submit to a breathalizer examination pursuant to Section 1547 of the Vehicle Code, 75 Pa. C. S. §1547.

The only issiie before us for review is whether .Licensee was given an adequate warning that the re•fus'al to submit to a breathalizer test would result-in the suspension of his operating privileges.¹ The trial court determined, without any explanation whatsoever, that “the requisite warnings were not given.”

' ' The -order of ‘the trial court can be overturned only if the necessary findings of fact are unsupported by competent evidence, an .error of law has been committed, or -there has -been a manifest abuse of discretion by the lower court. Bruno v. Department of Transportation, 54 Pa. Commonwealth Ct. 353, 422 A.2d 217 (1980). In the instant case no testimony whatever was offered by Licensee. DOT, in support of its burden to demonstrate that warnings were given, presented -the testimony of the officer who administered the examination. This witness testified that Licensee was warned three times' that if he “refused to take the test or activate the instrument . . ..he would lose his license. ...” N.T. at 6. Despite this testimony, the trial court found that Licensee had not received adequate warnings. While we are cognizant that it is within the province of the trial court to decide credibility issues, Bruno, the trial court here raised no such issue, did not discount the testimony of the DOT'witness, nor did the court discredit his' testimony in any way. Since the trial court has not questioned the credibility of the only witness on the issue of -whether warnings were given,. and no contrary evideuce has been offered, any finding that there were no warnings given would be without basis and constitute an abuse of discretion. Similarly, since the only evidence on record clearly establishes that the warnings given were legally sufficient under the Bruno standard, any conclusion that the requisite warnings were not given would be an error of law and must be reversed.

For these reasons the order of the trial court is reversed and the DOT suspension is reinstated.

Order

Now, February 11, 1988, the order of the Court of Common Pleas of Philadelphia County, No. 1325 November Term, 1983, dated April 16, 1984, is reversed ■and the Department of Transportation’s suspension of Licensee’s operating privileges is reinstated.

1 To' sustain its burden in cases such- as tbis one DOT must prove that tbe licensee was placed under arrest, that-be was requested to take a breathalizer test,-that be refused tbe request, and that be was warned that a refusal would result in suspension or revocation of bis license. Bruno v. Department of Transportation, 54 Pa. Commonwealth Ct. 353, 422 A.2d 217 (1980).