Occhibone v. Commonwealth

669 A.2d 326, 542 Pa. 588, 1995 Pa. LEXIS 1433
Supreme Court of Pennsylvania·Decided December 28, 1995·Published·Cited by 16 cases

Opinions

OPINION

MONTEMURO, Justice.

Appellant, David Allen Occhibone, appeals from an order of the Commonwealth Court which affirmed the order of the Court of Common Pleas of Lawrence County dismissing Appellant’s statutory appeal. This case raises a question of first impression, whether a motorist charged with a violation of the Implied Consent Law must receive the request to submit to chemical testing from a police officer.

[590] On September 20, 1992 at approximately 2:10 a.m., Appellant was driving north on Route 18, a four lane undivided highway. Pennsylvania State Troopers Moore and Hov, observing that Appellant’s front and rear left tires were in the left lane while the rest of his car was in the right lane, stopped his vehicle.

Trooper Moore approached Appellant, while Trooper Hov confronted the male occupant in the front passenger seat. Moore observed that Appellant’s eyes were glassy and bloodshot, and noticed a strong odor of alcoholic beverages emanating from the vehicle. Appellant staggered when emerging from his car, and failed all of the field sobriety tests which Trooper Moore administered.

Appellant was placed under arrest for driving under the influence of alcohol or a controlled substance, a violation of 75 Pa.C.S. § 3731. He was handcuffed, placed in a patrol vehicle, and advised by Trooper Moore that he would be transported to St. Francis Hospital for a blood test. Moore did not read Miranda warnings to Appellant.1

After arriving at the hospital, Trooper Moore read the implied consent warning, which consisted of a verbatim recitation of the relevant language of Section 1547 of the Vehicle Code,2 and Appellant indicated that he understood the warn[591] ing. At this point, a lab technician entered the room, and in Trooper Moore’s presence asked Appellant to submit to a blood test. Appellant declined, giving no reason for his refusal.

On October 23, 1992, a notice of suspension was sent to Appellant, who filed an appeal of the suspension with the trial court. After a de novo hearing, the court issued an order and opinion dismissing the appeal. Appellant then appealed to the Commonwealth Court. In an en banc decision, the Commonwealth Court affirmed the trial court’s order, and directed that the one year suspension of Appellant’s driving privilege be reinstated. The Commonwealth Court held that:

Where a police officer has informed the licensee of the Implied Consent Law, a person authorized to take a sample of the licensee’s breath, blood or urine may request that the licensee submit to chemical testing if the request is made in the presence of a police officer.

Occhibone v. Commonwealth, Department of Transportation, 165 Pa.Commw. 268, 277, 645 A.2d 327, 331 (1994).

Pursuant to 75 Pa.C.S. § 1547(a), every motorist who operates a motor vehicle in Pennsylvania is deemed to have given his or her consent to the submission of a chemical test of that person’s breath, blood or urine. Under 75 Pa.C.S. § 1547(b)(1), the motorist has a statutory right to refuse to submit to a requested chemical test. However, if the motorist refuses to submit to the chemical test, his or her operating privileges will be suspended for twelve months.

[592] Section 1547 does not specify who must request that the motorist submit to chemical testing. Appellant asserts that only a police officer may make the chemical testing request. Since the act does not specify the source of the request, the rules of statutory construction must be applied to ascertain the legislature’s intent. Section 1921(c) of the Statutory Construction Act, 1 Pa.C.S. § 1921(c) provides:

(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

1 Pa.C.S. § 1921(c).

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Occhibone v. Commonwealth, 669 A.2d 326, 542 Pa. 588, 1995 Pa. LEXIS 1433 (Pa. 1995).

669 A.2d 326 (Occhibone v. Commonwealth) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Occhibone v. Commonwealth
669 A.2d 326 (Supreme Court of Pennsylvania, 1995)