Thursday, May 15, 2008

drivers license - refusal to take breath test - jurisidiction to arrest

Taylor v. Penn DOT - Commonwealth Court

http://www.courts.state.pa.us/OpPosting/CWealth/out/1406CD07_5-15-08.pdf

In order to suspend a licensee’s operating privileges pursuant to 75 Pa.C.S. §1547(b), DOT has the burden of proving the following:

1) the licensee was arrested for violating Section 3802;
2) by a police officer who had reasonable grounds to believe that the license was operating a vehicle while in violation of Section 3802;
3) that the licensee was requested to submit to a chemical test;
4) that the licensee refused to do so; and
5) that the police officer fulfilled the duty imposed by 75 Pa.C.S. §1547(b)(2) by advising the licensee that his operating privileges would be suspended if he refused to submit to chemical testing…. Quick v. Department of Transportation, Bureau of Driver Licensing, 915 A.2d 1268, 1270 (Pa. Cmwlth. 2007).

In McKinley v. Department of Transportation, Bureau of Driver Licensing, 576 Pa. 85, 838 A.2d 700 (2003), the Pennsylvania Supreme Court rejected this Court’s determination that a person could be considered a police officer, even if he was acting outside of his jurisdiction, as long as he was an “officer in fact,” i.e., authorized with the power to arrest in another jurisdiction. Instead, the Pennsylvania Supreme Court determined that a police officer acting outside of his jurisdiction lacked the ability to act as a police officer and would not be treated as such. McKinley, 576 Pa. at 94, 838 A.2d at 706.

As the arresting officer did not have the authority to act as a police officer, DOT has failed to establish that Licensee was arrested by a police officer who had reasonable grounds to believe Licensee was DUI. Thus, we conclude that the trial court did not err in granting Licensee’s appeal from the suspension of his operating privilege. Accordingly, the order of the trial court is affirmed

>