In re Appeal of Attleberger

583 A.2d 24, 136 Pa. Commw. 329, 1990 Pa. Commw. LEXIS 634
CourtCommonwealth Court of Pennsylvania
DecidedNovember 28, 1990
DocketNo. 2216 C.D. 1989
StatusPublished
Cited by26 cases

This text of 583 A.2d 24 (In re Appeal of Attleberger) 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
In re Appeal of Attleberger, 583 A.2d 24, 136 Pa. Commw. 329, 1990 Pa. Commw. LEXIS 634 (Pa. Ct. App. 1990).

Opinions

DOYLE, Judge.

Raymond L. Attleberger appeals an order of the Court of Common Pleas of Venango County sustaining the one-year suspension of his operating privileges for refusing to submit to a chemical test pursuant to Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b).1

At approximately 2:00 a.m. on May 30, 1989, Lieutenant Richard O. Goldsmith of the City of Franklin Department of Public Safety observed two motorcycles pass him in the opposite direction, one of which was being operated without headlights or taillights. He followed the two motorcycles to investigate, and, when they eventually stopped at the Attleberger’s residence, Lt. Goldsmith approached Attleberger and observed that he appeared to be unsteady getting off his motorcycle. Lt. Goldsmith further noticed an odor of alcohol on Attleberger’s breath and that Attleberger’s speech was slurred. He requested that Attleberger perform field sobriety tests and, following their unsatisfactory performance, administered a preliminary breath test (PBT) with an Alco-Sensor 3, which registered a blood alcohol reading of .168 percent. Lt. Goldsmith then placed Attle[332]*332berger under arrest for driving under the influence of alcohol. Attleberger was transported to Franklin Regional Medical Center for a blood test, which he refused to take, after having been told that he would lose his driver’s license for one year. Attleberger testified at the de novo hearing before President Judge White that he refused the blood test even after being warned because he felt that he had already taken the PBT and did not need to take another test.2 Lt. Goldsmith testified that he read Attleberger the implied consent law several times but that Attleberger persisted in refusing to submit to the test.3 Nowhere in any of the [333]*333testimony was there any indication that Attleberger was advised at any time of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), nor did Attleberger at any time request to call or speak to anyone. Subsequent to this incident the Department of Transportation (Department) sent him notice that his license was suspended for one year for failure to submit to a chemical test.

Attleberger appealed to the trial court which upheld the suspension on the basis that the PBT is not a chemical test for purposes of consenting to a chemical test under Section 1547 of the Vehicle Code, and that Attleberger’s refusal to take the blood test on the basis that he had already taken the PBT did not result in the “confusion” which the Supreme Court contemplated in Department of Transportation, Bureau of Traffic Safety, v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), and Commonwealth v. McFadden, 522 Pa. 100, 559 A.2d 924 (1989), so as to preclude a knowing and conscious refusal. The trial court thus dismissed Attleberger’s appeal. Attleberger has appealed to our Court.

Attleberger argues on appeal that he was confused over his legal rights with regard to taking a chemical test after having taken the PBT and that he deserves protection from such confusion under the penumbra of O’Connell.

In O’Connell, the licensee was arrested and was advised immediately of his Miranda rights, including his constitutional right to counsel. He was then asked to submit to a breathalyzer test and refused because he had not been permitted to contact his attorney. The trial court in O’Connell accepted the licensee’s testimony as credible. The Supreme Court determined that the licensee was unfairly confused when he was given his Miranda warnings and [334]*334immediately afterwards was asked to submit to a breathalyzer test. The court held that when this sequence of events occurs, law enforcement officials must inform a licensee that he/she is not entitled to consult with an attorney or anyone else before taking a breathalyzer test.4

We do not agree that O’Connell, should be extended to the present case. Section 1547(k) of the Vehicle Code, 75 Pa.C.S. § 1547(k) provides:

Prearrest breath test authorized. — A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary breath test. Refusal to submit to the test shall not be considered for purposes of subsections (b) and (e).

Furthermore, in Wall v. Commonwealth, 114 Pa.Commonwealth Ct. 397, 539 A.2d 7 (1988), we held:

A preliminary breath test in the field, performed on an instrument which detects the presence of alcohol, is not one of the chemical tests of breath, blood or urine deemed to be consented to by Section 1547(a).

Attleberger, of course, was wrong to have assumed that he did not have to submit to the blood-alcohol test subsequent to having taken the preliminary breath test. Any confusion he may have experienced was not due to any statements made by Lt. Goldsmith, nor to any confusion in [335]*335any manner related to his constitutional rights, but rather, as President Judge White explained, was of his own creation. O’Connell and McFadden do not add a safety net to someone falling into such self-induced and self-destructive confusion about what the law is or should be.

The dissent misstates our holding when it mistakenly explains (dissent Op. p. 30) that “the majority ... would restrict O’Connell by holding that the arrestee can only be confused when Miranda has been given or when the arrestee requests to speak with an attorney or someone else.” To the contrary, it is only when a licensee is confused over his constitutional rights, (not any confusion) that an affirmative duty arises on the part of the police to advise a licensee that those constitutional rights do not apply under the implied consent law. Such confusion could be caused in several ways and may exist for different reasons, for example, (a) because of the close approximation of Miranda warnings to the police officer’s request to take an intoxilyzer test, or, (b) because of being “Mirandized-byT.V.” and requesting to speak to an attorney even though no Miranda warnings were given, or, (c) because of confusion for other reasons not yet judicially encountered which confusion could be overtly manifested in some other way. The O’Connell confusion, however, can not exist merely by a licensee’s standing mute (even though a citizen has the right to remain silent when charged with a criminal offense).

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Bluebook (online)
583 A.2d 24, 136 Pa. Commw. 329, 1990 Pa. Commw. LEXIS 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-attleberger-pacommwct-1990.