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BUREAU of TRAFFIC SAFETY v. MUMMA

No. 30 C.D. 1983.

79 Pa.Commw. 108 (1983)

Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, Appellant v. Joseph T. Mumma, Appellee.

Commonwealth Court of Pennsylvania.

December 15, 1983.

Attorney(s) appearing for the Case

Lawrence R. Wieder, Assistant Counsel, with him Harold H. Cramer, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

William H. Naugle, Naugle and Sullivan, for appellee.

Submitted on briefs November 16, 1983, to Judges WILLIAMS, JR., CRAIG and MacPHAIL, sitting as a panel of three.

OPINION BY JUDGE CRAIG, December 15, 1983:

The Pennsylvania Department of Transportation, Bureau of Traffic Safety (DOT) appeals from an order of the Dauphin County Court of Common Pleas reversing DOT's suspension of Joseph T. Mumma's drivers's license.

The question is whether the trial court erred in determining that Mumma's action in smoking a cigarette, despite several warnings not to do so, did not constitute a refusal to take the breathalyzer test.

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