COM., DEPT. OF TRANSP. v. Peck

DOYLE, Judge,

dissenting.

Because Peck had the burden of proof and prevailed in the court below, our scope of review is to determine whether or not the findings of fact of that court are supported by substantial evidence and/or whether errors of law were committed. Spirer v. Commonwealth, 52 Pa.Commonwealth Ct. 381, 416 A.2d 587 (1980). Because of the limits of this scope of review, I believe we are compelled to affirm.

To sustain a suspension under Section 1547(b) of the Code, the Commonwealth must prove that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was requested to submit to a breathalyzer test; (3) refused to do so; and (4) was warned that his license would be revoked if he refused to take the test. Capozzoli Appeal, 63 Pa.Commonwealth Ct. 411, 437 A.2d 1340 (1981). Peck does not dispute any of the above. The burden of proof was therefore on Peck to prove by competent evidence that he was incapable of making a knowing and conscious refusal. Whether or not he was capable was a question of fact for the court below. Id.

Whether or not Peck sustained his burden by producing adequate, that is, substantial evidence, is a question of law within the purview of this Court’s review, but the credibility of witnesses and the question of capability to make a knowing and conscious refusal is within the province of the trial judge. Here, the lower court heard detailed testimony by a psychologist, Dr. Robert Fisher, who conducted a psycho-educational evaluation of Peck and concluded that Peck has several lifelong learning disabilities which result in his “lack of intellectual functioning when under stress.” The Commonwealth did not present an expert to rebut Dr. Fisher’s testimony. The trial judge accepted the testimony as true and, along with Peck’s testimony, and that of a police officer, found the evidence to be competent to prove *517Peck’s inability to render a conscious, knowing refusal.1 We cannot disturb this finding.

Because of Peck’s low level of mental functioning under stress, Peck’s license must be reinstated. This is an anomalous result. DOT argues in its brief that the evidence of Peck’s chronic lack of ability to function under stress should render him ineligible to possess a driver’s license at all. I would agree, but the remedy in such a situation falls under Section 1519 of the Code, 75 Pa.C.S. § 1519,2 not under Section 1547. We note that nothing precludes DOT from pursuing the remedy available under § 1519 and at a subsequent hearing producing the testimony of Dr. Fisher, under subpoena if necessary.

Assuming that Peck would be found to be competent in a Section 1519 proceeding, we are faced with the question of whether or not a person who has a permanent disability, which can render him incapable of making a conscious and knowing refusal, will be allowed to refuse repeatedly testing and thereby negate the requirements of the law. I believe that each such refusal would have to be examined on an individual basis. The adjectives of “conscious” and “knowing” are not amenable to generalization.

*518Based on the foregoing discussion, very reluctantly, I believe we are obliged to affirm the order of the trial court.

. The trial court’s resolution of credibility conflict in favor of Peck distinguishes this case from Matthews v. Commonwealth, 115 Pa. Commonwealth Ct. 403, 540 A.2d 349 (1988), upon which DOT relies. Further, the trial court here in deciding credibility obviously did not believe that Peck’s consumption of alcohol contributed to his inability to make a knowing and conscious refusal.

. Section 1519 pertinently states:

Determination of incompetency
(a) General rule. — The department, having cause to believe that a licensed driver or applicant may not be physically or mentally qualified to be licensed, may obtain the advice of a physician who shall cause an examination to be made or who shall designate any other qualified physician. The licensed driver or applicant may cause a written report to be forwarded to the department by a physician of the driver’s or applicant’s choice. Vision qualifications shall be determined by an optometrist or ophthalmologist. The department shall appoint one or more qualified persons who shall consider all medical reports and testimony and determine the competency of the driver or the applicant to drive.