Commonwealth v. Kelly

341 A.2d 141, 235 Pa. Super. 299, 1975 Pa. Super. LEXIS 1616

• Court: Superior Court of Pennsylvania
• Decided: June 24, 1975
• Docket: Appeal, 288
• Status: Published

Opinions

Opinion by

Van der Voort, J.,

Appeal is taken from judgment of sentence rendered following conviction at trial without jury on an indictment charging operation of a motor vehicle while under the influence of intoxicating liquor.¹ Pursuant to said statute, appellant was sentenced to pay court costs and a fine of $250.00. This appeal follows denial of post-trial motions.

Factually, it appears on the record that a member of the Warminster Township, Bucks County, police department arrived upon the scene of a three-car automobile accident. Appellant admitted that he had been driving one of the cars involved. His appearance and the odor surrounding appellant led the investigating officers to conclude that appellant was intoxicated. Appellant was arrested and was asked if he would consent to take a breathalyzer test, to which question appellant replied affirmatively. Being unable to perform this test at the scene, the officer transported appellant to the station-house, .again questioning appellant if he would consent to the test and receiving consent, the test was then administered and registered positive.

Appellant challenges the judgment of sentence by arguing that the results of the breathalyzer test should have been suppressed when proper motion was made therefor, reasoning that the arrest was unlawful as being based upon a misdemeanor committed outside the view of the officer. See Commonwealth v. Hargrave, 212 Pa. Superior Ct. 167, 240 A.2d 570 (1968). Arguing the alleged illegality of the arrest, appellant urges upon us the conclusion that a search, here the breathalyzer test, could not be conducted, pursuant to that arrest, and away from the scene of the accident. Because of appellant’s unequivocal and freely-given consent to the test involved herein, we disagree.

We find that the factual situation of this case is within the purview of Commonwealth v. Quarles, 229 Pa. Superior Ct. 363, 324 A.2d 452 (1974). Therein, this court noted that while the “implied consent” law may allow an investigating officer to give a breathalyzer test at the scene, the officer must obtain an arrest warrant or have probable cause for a misdemeanor occurring in his presence, if the suspect is to be removed to the police station for testing. Our oft-stated concerns for the integrity of the individual’s control over his person mandate this position.² Quarles, supra, provides an exception to this in the situation where “a driver may actually consent to a seizure of his person and the administration of a test of his breath or blood.” 229 Pa. Superior Ct. at 377.

In the instant case, we find such consent. At the scene of the accident, appellant gave his consent to be removed to the State Police barracks for a breathalyzer test. At the barracks, appellant again consented. We believe that these two circumstances, there being no indication that appellant was coerced or threatened into consenting, allow for the police action in conducting the test at a location some distance from the scene of the accident. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). We cannot agree with the dissent’s reliance upon an inference that appellant was coerced into consenting by his implied or actual knowledge of the possible suspension of his driving license should he refuse a breathalyzer. No testimony supports an inference that this dilemma faced appellant and influenced his deliberations. We are not inclined to read into the fact situation something that is not present. Furthermore, when this inference is adopted, our case law regarding the effect of uncoerced consent is nullified. Consequently, absent clear evidence of coercion, as we see in the Hobson’s choice presented to the defendant in Commonwealth v. Modich, 233 Pa. Superior Ct. 92, 334 A.2d 717 (1975), we are not willing to accept this finding of implied coercion.

Judgment of sentence affirmed.

1 . A violation of “The Vehicle Code,” Act of 1959, April 29, P. L. 58, Section 1037, 75 P.S. §1037.

2 . We recognize that the ability of an investigating officer is somewhat expanded by an amendment to Section 1204 of the “Motor Vehicle Code,” Act of 1959, April 29, P. L. 58, 75 P.S. §1204, which provides inter alia as follows: “A peace officer may, upon view or upon probable cause without a warrant, arrest any person violating section 1037.of this act in cases causing or contributing to an accident.” From the effective date of this amendment, July 20, 1974, an officer may arrest an individual at the scene of the misdemeanor, if the same had been committed outside the view of the officer, and if he is provided probable cause to suspect that the individual subjected to arrest has operated his vehicle in violation of the cited section. See the Concurring Opinion by Packel, J., in Commonwealth v. Reeves, 223 Pa. Superior Ct. 51, 297 A.2d 142 (1972). Thus the officer may rely on the information of informers at the scene, if he believes that they are reasonably trustworthy, to determine if the information is “sufficient to warrant a prudent man in believing that the petitioner [defendant] had committed or was committing an offense.” (citation omitted) McCray v. Illinois, 386 U. S. 300, 304, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967).