541 A.2d 66

#### Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant *v.*Sylvester R. Griffith, Appellee.

Submitted on briefs February 4, 1988,

to President Judge Crumlish, Jr., and Judge ■ Colins, and Senior Judge Blatt, sitting as a panel of three.

*Harold H. Cramer,*Assistant Counsel, with him, *John L. Heaton,*Chief Counsel, for appellant.

*Joseph V. Kasper,*with him, *John R. Sobota,*for appellee.

*197May 16, 1988:

Opinion by

Judge Colins,

The Department of Transportation (DOT) appeals an order of the Court of Common Pleas of Luzerne County reversing the one year license suspension imposed upon Sylvester D. Griffith (appellee) after determining that the injuries sustained by appellee in an accident rendered him unable to knowingly and consciously refuse to submit to a breathalyzer test. *See*Section 1547(b) of the Vehicle Code, 75 Pa. C. S. § 1547(b). We reverse.

On February 21, 1987, appellee was involved in a two vehicle collision. A police officer called to the scene of the accident noted that appellee was injured but that he refused offers of medical attention. Noting the odor of alcohol about appellee and his difficulty in locating his license and registration card and in performing certain physical tasks, the officer placed appellee under arrest, requested that he submit to a breathalyzer test and advised him that his refusal to do so would result in a one year suspension of his drivers license. Appellee did refuse the test and DOTs suspension of his driving privileges followed.

Appellee appealed the suspension to the trial court, which considered the following evidence in concluding that appellee was unable to knowingly and consciously refuse the breathalyzer test as a result of the injuries he sustained in the accident: (1) the appellees statements, specifically found credible by the trial court, that the collision was violent, that he could not recall the accident or subsequent events until the following morning when he requested that he be taken to the hospital, there receiving treatment for three broken ribs; (2) the testimony of appellees brother-in-law who was a passenger in the vehicle, his sister-in-law and wife, all of whom stated that appellee was dazed and incoherent following the accident and (3) photographs of appellees car, re*198vealing, in the trial courts estimation, severe damage to the passenger side of the car and to the dashboard.

When the motorist does not suffer from any obvious inability to comply with an officers request to submit to a blood alcohol test, a finding that he or she was physically unable to make a knowing and • conscious refusal must be supported by competent medical evidence. *Department of Transportation, Bureau of Driver Licensing v. Norton,*103 Pa. Commonwealth Ct. 78, 519 A.2d 1085 (1987). Whether a motorist has satisfied this burden is a factual determination to be made by the trial court. *Waigand v. Commonwealth,*68 Pa. Commonwealth Ct. 541, 449 A.2d 862 (1982). A motorists bare assertion of physical incapacity, absent any supportive medical evidence, is insufficient to meet the requisite burden. *Department of Transportation, Bureau of Traffic Safety v. Day,*93 Pa. Commonwealth Ct. 49, 500 A.2d 214 (1985). Our scope of review in cases of this nature is to determine whether the findings of feet are supported by competent evidence and whether errors of law have been committed. *Department of Transportation, Bureau of Traffic Safety v. Gordon,*95 Pa. Commonwealth Ct. 546, 505 A.2d 1125 (1986).

There is no dispute in the instant matter that DOT presented sufficient evidence of the legal elements required to sustain the suspension, *see id.,*and the sole issue presented is whether appellee sustained his burden of proving that he was physically incapable of making a knowing and conscious refusal. DOT asserts that appellees failure to adduce medical proof of his purported physical incapacity precludes a finding that he, in fact, had carried such burden. We agree. After thoroughly reviewing the record *sub judice,*we cannot conclude that appellee suffered any *obvious*incapacity so as to avoid the requirement of medical evidence in support of his incapacity defense. Indeed, the record *199discloses that appellee approached the investigating police officer and admitted that he was the driver of the vehicle involved in the accident. He refused immediate medical assistance, despite having sustained cuts on his face and hands, and was not taken to the hospital until the following day, at which time he was treated for broken ribs but not for the lacerations.

Appellee now contends the facts of this matter are “strikingly similar” to those in *Day*wherein we held that the motorists injuries were such that no medical proof was required to prove that his injuries rendered him incapable of making a knowing and conscious refusal. In that case, however, the motorist suffered multiple injuries, including a broken jaw, severe facial lacerations, a broken arm, an injured leg and blows to the back of the head. Contrary to appellees assertions, we believe the instant matter is factually distinguishable from *Day*and is more closely aligned with *Gordon.*We there found that although the motorist had indeed suffered injuries consisting of a head laceration, bleeding from the mouth and nose and a fractured thumb, his injuries were not of such an obvious nature that he could have been said to be suffering from an obvious inability to comply with the police officers request to submit to testing. *See ■ also Norton.*As no medical evidence1 was presented in the instant matter, we, therefore, are constrained to conclude that the trial courts findings are not supported by competent evidence.

Accordingly, the order of the Court of Common Pleas of Luzerne County is reversed and appellees one year license suspension is reinstated.

*200Order

And Now, this 16th day of May, 1988, the Order of the Court of Common Pleas of Luzerne County in the above-captioned matter is reversed. The one year suspension of appellees driving privileges imposed by the Department of Transportation is reinstated.

1

 We noté that appellee was examined by medical personnel on the day following the accident and could have thus readily adduced medical evidence in support of his assertion of physical incapacity if, in feet, such evidence existed. *See id.*