Commonwealth v. Burke

375 A.2d 1375, 31 Pa. Commw. 290, 1977 Pa. Commw. LEXIS 961
CourtCommonwealth Court of Pennsylvania
DecidedJuly 27, 1977
DocketAppeal, No. 369 C.D. 1976
StatusPublished
Cited by4 cases

This text of 375 A.2d 1375 (Commonwealth v. Burke) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Burke, 375 A.2d 1375, 31 Pa. Commw. 290, 1977 Pa. Commw. LEXIS 961 (Pa. Ct. App. 1977).

Opinion

Opinion by

Judge Mencer,

This appeal comes to us upon an agreed set of facts which are set forth in the opinion of the lower court:

At approximately 1:00 A.M. on the morning of May 14, 1975, Officer Wesley A. Hill of the Hatfield Township Police Department ob[292]*292served a tan Chrysler being operated in an erratic manner. He followed at a distance and saw the suspect vehicle tailgating another vehicle. After the tan Chrysler had entered Chestnut Street from Cowpath Road, the operator suddenly stopped the vehicle and signaled a left turn. There was no street or driveway to the left. The operator then executed a right turn onto a one-way street and stopped. Officer Hill approached the vehicle, detected a strong bouquet of alcoholic beverage emanating from the operator and, after preliminary questioning of the [appellee], concluded that the operator was under the influence of intoxicating liquor. This conclusion was based upon the officer’s observation of [appellee’s] difficulty in disengaging the ignition buzzer system, the pronounced bouquet of alcoholic beverage, his erratic operation of the vehicle, and his combative demeanor.
[Appellee] was informed he was under arrest for drunk driving and requested to get into the police vehicle for transportation to the police station. Initially he refused, but complied after a third request and was transported to the station house. Upon his arrival, [appellee] became aggressive and threatened the lives of both Officer Hill and Sergeant Matthew Murphy. He was repeatedly requested to submit to a Mobat Sobermeter test by both officers, but steadfastly refused stating, ‘What for? I’m drunk and I admit it. What more do you want?’ [Appellee] was released a short time later and driven to his home in Hatfield by Sergeant Murphy.
A criminal complaint charging [appellee] with driving while under the influence of in[293]*293toxicating liquor, a violation of §1037 of The Vehicle Code, was executed by Officer Hill later that morning. . . .
Upon notice of [appellee’s] refusal to submit to the chemical breath test, the Secretary, pursuant to the Schedule of Suspensions set forth at 4 Pa. Bulletin 326 (1974), notified [appellee] on December 1, 1975 that his operating privileges were suspended for a period of six months effective January 5, 1976.
On December 19, 1975 [appellee] filed an Appeal therefrom . . . and was granted a hearing de novo and a supersedeas as of that date. Following a hearing convened January 26,1976, [the Court of Common Pleas of Montgomery County] by order dated February 3, 1976, sustained [appellee’s] appeal and rescinded the Secretary’s Order of Suspension upon the finding that ‘[appellee] was not properly arrested and charged in accordance with §624.1 (a) of The Vehicle Code.’1 On March 2, 1976, the Secretary perfected an appeal from that determination. . . . (Footnote added.)

[294]*294The issue in this appeal is the precise meaning of the term “charged” as used in Section 624.1(a) of The Vehicle Code, specifically, whether that section requires that a complaint be filed with a district justice before the request, refusal, and consequent suspension of the operator’s license privilege can take place. The learned court below held that, where an operator is arrested, without a warrant, for driving while under the influence of intoxicating liquor, a license suspension under Section 624.1(a) is invalid unless the request for testing was made and refused after the arrest and the filing of a criminal complaint. Although the opinion accompanying the court’s order, at the very least, should be described as thorough and forceful, we are of the view that the result reached below must be viewed as technical and overrestrictive.

Our analysis of the problem must commence with a recognition that, in construing legislation, a court should lend effectiveness to the purposes supporting the legislation. With this in mind, we must concur with the Court of Common Pleas of Lebanon County when it concluded that any interpretation of Section 624.1(a) which would substantially contribute to a delay between the time an operator is observed operating and the time the chemical test is administered would have the direct effect of defeating the obvious [295]*295purpose of the testing requirements.2 Thus, the expression “charged” as used in this section is synonymous with “accused” and does not contemplate a formal written complaint as a condition precedent to the request-refusal basis for suspension. Smith License, 51 Pa. D. & C. 2d 395, 13 Lebanon 165 (1971).

Our own Court, as long ago as Commonwealth v. Gallagher, 3 Pa. Commonwealth Ct. 371, 283 A.2d 508 (1971), speaking through Judge Bogers, set the background for a consideration of the issue in the present appeal:

Section 624.1 was added to The Vehicle Code at the Legislative Session of 1961. In its original form, it provided that the operator might be given a breath test if he consented thereto. By amendment aproved December 22, 1969, P.L. 392, there were introduced the concept of assumed consent to the chemical breath test, the [296]*296provision for suspension of operator’s privileges for refusal and the admissibility in criminal proceedings of the fact of such refusal. As first enacted, Section 624.1 required consent to testing. By amendment, consent was supplied by law and refusal became admissible as evidence of guilt. As a deterrent to refusal, the recusant’s driving privileges were made subject to suspension on this ground.
The automobile has bestowed great material, intellectual and social benefits. By the agency of the bad driver, it has also visited upon a substantial minority of persons disasters of Apocalyptic dimensions. At the forefront of the instruments of destruction has been the drunken driver. Section 624.1 and its precursors from other jurisdictions were intended to supply scientific, physiological proof of the presence or absence of the influence of intoxicants, as a substitute for or supplement to the observations of eyewitnesses, uncertain when made and usually required to be recalled long after the event. . . .
... It is helpful to be reminded that the Legislature’s power over the public highways is plenary; and that the right to operate a vehicle on the highways is not a civil or property right but a privilege, the enjoyment of which is subject to such regulation and control as the State may see fit to impose. Commonwealth v. Funk, 323 Pa. 390, 186 A. 65 (1936); Commonwealth v. Harrison, 183 Pa. Superior Ct. 133, 130 A.2d 198 (1957).

Id. at 374-75, 283 A.2d at 509-10.

Other courts of common pleas of this state have dealt with this problem. We believe we cannot improve upon their reasoning. In Commonwealth v. [297]*297Sundstrom, 17 Chester 220, 222-23 (1969), Judge Kurtz wrote the following:

Statutory rules of construction are also helpful upon this point. The Statutory Construction Act, the Act of May 28, 1937, P.L. 1019, §51 (46 P.S.

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Cite This Page — Counsel Stack

Bluebook (online)
375 A.2d 1375, 31 Pa. Commw. 290, 1977 Pa. Commw. LEXIS 961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-burke-pacommwct-1977.