dissenting.
I respectfully dissent. By finding that the trial court found in favor of the Licensee because the police officer’s testimony was not credible, the majority mischaracterizes the trial court’s opinion.
On August 14, 1992, Officer Mark Del-Frate of the City of Pittsburgh Police Department was dispatched to the scene of an accident. Upon arriving at the scene, Officer DelFrate observed a motor vehicle lodged against a high curb with its motor off and no one in the driver’s seat. Officer DelFrate testified that Ron Dokes, a bystander, reported to him that Michael McCullough (Licensee) was the person driving the car when the accident took place. Noticing that Licensee was glassy eyed and his speech mumbled and slurred, Officer DelFrate administered a field sobriety test to Licensee that he performed unsatisfactorily. Officer DelFrate arrested Licensee for driving under the influence and was requested to take a breathalyzer. After Licensee unsuccessfully attempted to take the test, another police officer who was administering the test recorded a refusal. Based on the report of the refusal, Penn-Dot notified Licensee that his license was suspended for one year as required by Section 1547 of the Vehicle Code. Licensee appealed his suspension to the trial court.
Besides the good faith hsue in attempting to complete the test, the iss\© before the trial court was whether Officer DelFrate had probable cause to arrest Licence. The trial court dismissed the appeal finding that the testimony did not establish that Officer DelFrate had probable cause. My disagreement with the majority is on what basis the trial court found no probable cause.
The majority finds that the trial court did not find probable cause because it did not find Officer DelFrate’s testimony credible. .1 believe, as apparently do the parties, that the trial court found that Officer DelFrate’s testimony that he was informed that Licensee was driving the car was insufficient to establish probable cause to arrest Licensee and make him submit to a breathalyzer.
In its opinion, the trial court explained the reason why it was sustaining Licensee’s appeal as follows:
It is apparent, however, that Officer Del-Frate did not observe the defendant in the vehicle at any time. His conclusion that the defendant was driving the vehicle involved in the accident is based solely on the account of the witness who is not present at the instant hearing. (H.T. 4, 7). The burden of proof which demonstrates reasonable grounds upon which to base the initial arrest falls upon the Commonwealth. We believe the Commonwealth has not met this burden.
We submit that the arresting officer may testify to anything that would establish his basis for concluding that reasonable grounds existed upon which to arrest the defendant. But we do not believe that reasonable grounds existed.
We position this on two facts. First, Officer DelFrate did not observe the defendant operating the vehicle. While this in and of itself is not fatal to the Commonwealth’s case, a factual conclusion arrived at by way of this scenario must be accompanied by clear and convincing supportive evidence.
However, the witness who purports to have observed the defendant prior to the arrival of the arresting officer is not presented for examination.
This Court would commit a grave breach of justice were we to accept the officer’s testimony absent the corroborating witness.
Therefore, we need not reach the merits of the chemical testing and sustain the appeal.
Commonwealth of Pennsylvania v. McCullough, (No. S.A. 4210 of 1992, filed September 16, 1993).
*383Despite the trial court never stating that it found the police officer not to be credible and the whole focus of the opinion is on corroboration, the majority finds that the trial court sustained the appeal because it found the police officer not to be credible. I suggest that such a characterization is against the opinion’s plain language and the basis upon which the trial court decided the issue was the police officer’s testimony alone, that he received information that Licensee was driving the car involved in the accident, required corroboration to support a finding of probable cause.
Because it is clear that the issue before the trial court was whether a police officer’s testimony that he was given information from third parties needs corroborating testimony which the majority agrees is not required, I would reverse the trial court.1
. Because of the trial court’s decision concerning reasonable grounds for the arrest, it did not make findings on the remaining issue of refusal. PennDOT contends that Licensee’s alternative defense before the trial court was that he made a good faith effort to perform the breath test, and that a good faith effort, as a matter of law, is irrelevant to nullify a refusal by failure to supply sufficient breath for a sample, citing Department of Transportation, Bureau of Driver Licensing v. Kilrain, 140 Pa.Commonwealth Ct. 484, 593 A.2d 932 (1991), petition for allowance of appeal denied, 529 Pa. 625, 600 A.2d 541 (1991). Licensee admits that if Kilrain is followed, a remand for additional factual findings is unnecessary.
In Kilrain, this court held that a failure to complete a breathalyzer test is, per se, a refusal, and a "finding that a licensee made a good faith attempt to complete the breathalyzer test is irrelevant to the question of whether the licensee refused the test." Id. at 489-90, 593 A.2d at 935. Since Kilrain, we have confirmed the holding that a good faith attempt is irrelevant. See, e.g., Department of Transportation, Bureau of Driver Licensing v. Beatty, 143 Pa.Commonwealth Ct. 272, 598 A.2d 1069 (1991); Department of Transportation, Bureau of Driver Licensing v. Cavey, 145 Pa.Commonwealth Ct. 154, 602 A.2d 494 (1992). In this case, Licensee admittedly did not provide a sufficient breath sample and that is, per se, a refusal. His defense that he made a good faith attempt has repeatedly been held to be irrelevant to a refusal, therefore, as a matter of law, he refused to submit to chemical testing.