Commonwealth v. Foley

PALLADINO, Judge.

The Department of Transportation, Bureau of Driver Licensing (DOT), appeals an order of the Court of Common Pleas of Delaware County (trial court), which sustained Richard Foley’s (Licensee) appeal of a license suspension for refusing to submit to chemical alcohol testing. Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b). We reverse.1

Licensee struck a traffic light pole with his car, injuring his head, leg and ribs. He was taken to a hospital where *569police officer Daniel Wallower (officer) arrested him for driving under the influence of alcohol. At the hospital, the officer advised Licensee of the implied consent laws and requested him to submit to a blood test two times. Licensee refused on both occasions. Thereafter, DOT notified Licensee that his license was suspended for one year for refusing to submit to chemical testing.

Licensee appealed to the trial court. At a de novo hearing, DOT presented evidence that Licensee was arrested for driving while under the influence of alcohol, informed of the consent laws, requested to submit to chemical testing and refused. Licensee testified as to the extent of his injuries and presented pictures of his car after the accident. He did not present expert medical evidence. Thereafter, the trial court stated:

[T]his court is convinced that [Licensee] had obvious injuries to his head and body and is further convinced that those injuries affected [Licensee’s] ability to knowingly and intelligently refuse to take a blood alcohol test.

Department of Transportation v. Foley (No. 89-2596, filed March 6, 1990), slip op. at 4-5. The trial court sustained the appeal.

On appeal to this court,2 DOT raises one issue: whether Licensee was required to produce expert medical evidence to prove that his injuries rendered him incapable of making a knowing and conscious refusal. The trial court concluded that this court’s decision in Department of Transportation, Bureau of Traffic Safety v. Day, 93 Pa.Commonwealth Ct. 49, 500 A.2d 214 (1985), relieved Licensee of a requirement to produce medical evidence in support of his claim that his injuries prevented him from making a knowing and conscious refusal.

*570In Day, this court held that medical evidence that a licensee’s injuries rendered him incapable of making a knowing and conscious refusal is not a per se requirement. Id., 93 Pa.Commonwealth Ct. at 52, 500 A.2d at 215. We have subsequently interpreted Day to mean that “a medical opinion to validate a [licensee’s] refusal to submit to a chemical test will not be required when severe, incapacitating injuries are obvious.’’ Department of Transportation, Bureau of Driver Licensing v. Garlan, 121 Pa.Commonwealth Ct. 400, 404, 550 A.2d 873, 875 (1988), petition for allowance of appeal denied, 522 Pa. 614, 563 A.2d 499 (1989) (emphasis in original), quoting Department of Transportation, Bureau of Driver Licensing v. Cochrane, 114 Pa.Commonwealth Ct. 185, 190, 538 A.2d 614, 616, petition for allowance of appeal granted, 521 Pa. 607, 555 A.2d 117 (1988).

In Day, the trial court found that the licensee sustained “multiple injuries, including: a broken jaw, severe facial lacerations, a broken arm, an injured leg, and blows to the back of head. The result of these injuries was rambling speech, confusion, and at times a total loss of memory.” Day, 93 Pa.Commonwealth Ct. at 52, 500 A.2d at 215. This court concluded that these injuries were obviously severe and incapacitating.

In Cochrane, the licensee asserted that as a result of a head-on automobile collision, he sustained a concussion, a corneal abrasion, bruises, and loss of memory. This court concluded that these injuries were not of an obviously severe and incapacitating nature.

In the present case, the trial court recited that Licensee sustained the following injuries: “a loss of consciousness as a result of the accident,[3] chest injuries, and a head injury. The impact of [Licensee’s] head with the windshield of his vehicle was forceful enough to shatter the windshield. [Licensee] was cut, bleeding, and had a bump on his head.” Foley, at 4. Licensee also testified that he remembered *571being asked to submit to the test,4 that the hospital discharged him after only a 40 minute examination,5 and that he received no further treatment for his injuries.6

While we are mindful that injuries to the head can be severe, every head injury is not obviously severe and incapacitating. Considering Licensee’s testimony that he remembers the requests made by the officer, that his examination at the hospital was brief and that he received no subsequent medical treatment, we conclude that Licensee’s injuries were not obviously severe and incapacitating. Consequently, his injuries do not fall within the narrow purview of Day, and he was required to produce expert medical evidence as to his alleged inability to make a knowing and conscious refusal. Licensee failed to provide any medical evidence.

Accordingly, we reverse the trial court’s order and reinstate the suspension.

ORDER

AND NOW, March 26, 1991, the order of the Court of Common Pleas of Delaware County in the above-captioned matter is reversed and the suspension is reinstated.

McGINLEY, J., files a dissenting opinion.

. Judge Palladino reassigned the instant matter to herself on November 7, 1990.

. Our scope of review is limited to a determination of whether findings of fact are supported by substantial evidence, errors of law have been committed or the trial court’s order demonstrates a manifest abuse of discretion. Department of Transportation, Bureau of Driver Licensing v. Derhammer, 118 Pa.Commonwealth Ct. 364, 544 A.2d 1132 (1988).

. This finding is based solely on Licensee’s testimony that, immediately after the impact of the accident, he believed he lost consciousness for 30 seconds to a minute. Transcript of testimony, at 19.

. Transcript of testimony, at 24.

. Transcript of testimony, at 23.

. Transcript of testimony, at 23.