The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) which sustained the appeal of Edward M. Sfida, Jr. (Licensee) from a one-year driver’s license suspension imposed by the Department under Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. 1547(b)(1),1 as a result of his reported refusal to submit to chemical testing following his involvement in a motor vehicle accident.
On the evening of December 3, 2003, Licensee’s vehicle struck the back of another moving vehicle. After both drivers stopped to assess the damage, Licensee fled the scene of the accident. The other driver recorded Licensee’s license plate number and called the Plymouth Township Police, and one of its officers, Michael Cassidy (Officer Cassidy), located Licensee at his home approximately ten to 12 minutes later. Because Officer Cassidy detected an odor of alcohol on Licensee’s breath, he asked him to submit to a field sobriety test, which Licensee refused. Of-*539fleer Cassidy then asked him to submit to a portable breath test, which he also refused. After Licensee also refused to go to the police station and submit to a chemical breath test, Officer Cassidy explained the consequences of his refusal and advised Licensee of the implied consent law under § 1547(b)(2) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(2). However, Licensee continued to refuse to submit to the testing. Without being taking to the police station, Licensee was charged with leaving the scene of an attended vehicle,2 hit and run of attended vehicle or property, careless driving3 and disorderly conduct.4
By official notice dated and mailed February 26, 2004, the Department notified Licensee that as a result of his refusal to submit to chemical testing on December 3, 2003, his operating privilege was being suspended for one year as mandated by 75 Pa.C.S. § 1547(b)(1). Licensee appealed the suspension to the trial court.
At a de novo hearing, Officer Cassidy, the only witness, testified as to the circumstances surrounding his dispatch to the scene, his exchange with Licensee, his repeated requests to Licensee to submit to testing, and Licensee’s continued refusal to do so. He testified that he “arrested” Licensee for leaving the scene of an attended vehicle, hit and run of an attended vehicle or property, careless driving and disorderly conduct, but never handcuffed Licensee or placed him into his patrol car; instead, he released Licensee at the scene to go on his way because the charges were all “summary misdemeanor offenses” and told Licensee he would receive a summons in the mail. On cross-examination, Officer Cassidy acknowledged that he did not formally place Licensee under arrest or charge him with driving under the influence.
The trial court found that under 75 Pa. C.S. § 1547(b)(1), an arrest for driving under the influence, as well as a refusal to submit to a breath test, were both necessary components for a one-year suspension. Because Licensee had not been arrested for driving under the influence, the trial court sustained Licensee’s appeal and ordered the Department to rescind the suspension. This appeal followed.5
*540While agreeing that one of the required elements6 to suspend a licensee for refusal to submit to chemical testing is that the licensee must be “placed under arrest for a violation of section 3802 [driving under the influence],” 75 Pa.C.S. § 1547,7 the Department argues that substantial evidence does not support the trial court’s conclusion that Licensee was not “arrested” for driving under the influence for purposes of 75 Pa.C.S. § 1547(b)(1). It argues that the term “arrest” as it is used in 75 Pa.C.S. § 1547(b)(1) only requires that from the totality of the circumstances, the licensee, at the time the testing request is made, would have inferred that he or she was under the custody and control of the police officer. Maletic v. Department of Transportation, Bureau of Driver Licensing, 819 A.2d 640 (Pa.Cmwlth.2003).8 In this case, the Department argues that Licensee should have had the reasonable impression that he was not free to leave Officer Cassi-dy’s presence, and that was sufficient to constitute the “custody and control” necessary to effectuate an “arrest” for purposes of Section 1547.9
*541Ignoring whether the “totality of the circumstances test” has any application whatsoever when a police officer testifies that the licensee was never under arrest, and while the totality of the circumstances certainly establishes that Licensee could have been arrested for driving under the influence, the hard fact remains that, inexplicably, he was not.10 Despite what was written in an affidavit sent to the Department, Officer Cassidy testified that he never placed Licensee under arrest for driving under the influence and Licensee was never formally charged with driving under the influence arising out of the events on December 3, 2003. Specifically, the following exchange took place:
Q. [Licensee’s Attorney] Under the affidavit part, would you please read the four numbers?
A. [Officer Cassidy] The above motorist was placed under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3731 of the vehicle code. And there were reasonable grounds to believe that the above motorist had been drinking, operating or in actual physical control of the movement of a motor vehicle while under the influence of alcohol or a controlled substance or both. But the above motorist was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed. Number two—
Q. Let me stop you right there just for a moment. Did that happen, what you just read in number one?
A. No.
Q. No. You did not arrest him for an [sic] DUI?
A. No, I did not.
Q. And there was not an accident involving injury or death, am I correct?
A. You’re correct.
Q. So that part of the affidavit is not correct?
A. It didn’t happen.
Q. It didn’t happen. You don’t have to read the other numbers. Thank you.
(Reproduced Record at 27a-28a.)
Whether a licensee has been “placed under arrest” for purposes of the implied consent law is a question of fact rather than a legal determination. McGlynn. This testimony is substantial evidence on which to support the trial court’s finding that Licensee was not placed under arrest for driving under the *542influence on the evening of December 3, 2003. Accordingly, because an arrest for driving under the influence is required to sustain a one-year suspension imposed pursuant to 75 Pa.C.S. § 1547(b)(1) for a chemical test refusal, the order of the trial court rescinding the suspension is affirmed.
ORDER
AND NOW, this 17th day of June, 2005, the order of the Court of Common Pleas of Montgomery County dated October 7, 2004, in which it sustained the appeal of Edward M. Sfida, Jr. from a one-year suspension and directed the Department of Transportation, Bureau of Driver Licensing to rescind the suspension is affirmed.