Graves v. Com.

• Decision Date: 07 January 1988
• Citation: 112 Pa.Cmwlth. 390,535 A.2d 707
• Court: Pennsylvania Commonwealth Court
• Parties: Dennis Edward GRAVES, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee.

Page 707

535 A.2d 707

112 Pa.Cmwlth. 390

Dennis Edward GRAVES, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee.

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 18, 1987.

Decided Jan. 7, 1988.

Joseph E. Vogrin, III, Scott & Vogrin, Pittsburgh, for appellant.

Jeffrey L. Giltenboth, Pittsburgh, Harold H. Cramer, Asst. Counsel, Spencer A. Manthorpe, Chief Counsel, Henry G. Barr, Gen. Counsel, Harrisburg, for appellee.

Before MacPHAIL and BARRY, JJ., and BLATT, Senior Judge.

OPINION

BLATT, Senior Judge.

Dennis Graves (appellant) appeals an order of the Court of Common Pleas of Allegheny County (trial court) which dismissed his appeal of a Department of Transportation (DOT) order suspending his operator's license for a period of one year pursuant to Section 1547(b)(2) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(2) (refusal to submit to a chemical test).

On December 22, 1984, the appellant was stopped by an O'Hara Township Police Officer (Officer) for numerous traffic violations. ¹ Upon detecting the odor of alcohol on the appellant's breath, the Officer administered a field sobriety test which the appellant failed. The Officer thereafter placed the appellant under arrest for driving under the influence of alcohol and requested that he take a breathalyzer test. The appellant refused to take the test and, on January 17, 1986, DOT notified him that his operator's license was suspended for one year. On appeal, and after a hearing de novo, the trial court dismissed the appeal, concluding that the appellant was properly informed by the Officer that, if he refused to take the test, "he could lose his license for one year." Reconsideration was denied and this appeal followed.

The appellant's sole contention on appeal is that the Officer's warning that he "could lose his license" was insufficient under Section 1547(b)(2). ² DOT counters by arguing that: 1) the appellant waived the issue of the adequacy of the warning which he received by not raising it before the trial court or in his notice of appeal to this Court; ³ 2) the appellant, himself, admitted that the Officer's warning was that he "would" lose his license if he refused to take the breathalyzer test; and 3) the trial court inadvertently used the word "could," rather than "would." ⁴

Preliminarily, we note that a warning given pursuant to Section 1547(b)(2) to the effect that an individual's operator's license "could," rather than "would," be suspended upon a failure to submit to a breathalyzer test, is inadequate to convey the standard of certainty of the suspension that is mandated by the statute. Peppelman v. Commonwealth of Pennsylvania, 44 Pa. Commonwealth Ct. 262, 403 A.2d 1041 (1979). And, inasmuch as the trial court here found that the Officer warned the appellant that his license "could be suspended" upon his refusal to submit to a breathalyzer test, if that finding is supported by substantial evidence, then the trial court erred in dismissing the appeal.

A trial court, of course, is the ultimate finder of fact, and its credibility determinations may not be overturned on appeal. Department of Transportation, Bureau of Traffic Safety v. Dourte, 66 Pa. Commonwealth Ct. 511, 445 A.2d 264 (1982). And our scope of review is limited to determining whether or not constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Department of Transportation, Bureau of Traffic Safety v. Emory, 91 Pa. Commonwealth Ct. 580, 498 A.2d 26 (1985).

At the de novo hearing before the trial court, the appellant admitted that "[he] was told that [he] was going to lose [his] license for a year" if he refused the chemical test. The Officer also testified, on direct examination before the trial court, that he had informed the appellant that he "would lose his license for one year" if he refused the test. The Officer, however, testified later on cross-examination that he warned the appellant that, if he refused the test, "he might lose his license." The trial court specifically rejected the appellant's testimony as not being credible, and, finding the Officer's testimony on cross-examination credible, held that the appellant was told that he "could" lose his license upon a refusal to take a chemical test.

We believe that the Officer's testimony, on...