Walsh License

6 Pa. D. & C.3d 568, 1978 Pa. Dist. & Cnty. Dec. LEXIS 301
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJune 29, 1978
Docketno. 78-4345-04-6
StatusPublished

This text of 6 Pa. D. & C.3d 568 (Walsh License) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walsh License, 6 Pa. D. & C.3d 568, 1978 Pa. Dist. & Cnty. Dec. LEXIS 301 (Pa. Super. Ct. 1978).

Opinion

BODLEY, J.,

This is an appeal from the suspension of the operating privileges of appellant for her having refused to submit to a breathalyzer test following her arrest for operating a vehicle while under the influence of alcohol. Two grounds are asserted as the bases upon which the [569]*569order of the Bureau of Traffic Safety should be reversed: (1) that appellant did not refuse to take the breathalyzer test and (2) that the suspension is unlawful because the charges were withdrawn by the arresting police officer. The latter ground is novel, to say the least.

Section 1547(a) of the Vehicle Code1 provides in pertinent part: “Any person who operates a motor vehicle in this Commonwealth shall be deemed to have given consent to a chemical test of breath or blood for the purpose of determining the alcoholic content of the blood if a police officer shall have reasonable grounds to believe the person to have been driving a motor vehicle while under the influence of alcohol. . . .”

Subsection (b) provides for suspension upon refusal in this language:

“(1) If any person placed under arrest for driving under the influence of alcohol is requested to submit to a chemical test and refuses to do so, the test shall not be given but upon notice by the police officer, the Department shall:
“(i) suspend the operating privilege of the person for a period of six months; . . .
“(2) It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended . . . upon refusal to submit to a chemical test.”

At the hearing, appellant testified that she had not refused to take the test, that when asked to take the test she replied that she would be happy to do so if she would be permitted to call her attorney, that she was not permitted to call her attorney, and that [570]*570she did not remember if she was asked to take the test. The arresting officer testified that after observing appellant’s vehicle being operated in an erratic manner and after experiencing some difficulty in forcing appellant to stop her vehicle, he finally pulled her over. As he got out of his vehicle, appellant sped away. He again followed the vehicle and succeeded in confronting appellant. She refused to produce her operator’s license and registration card, refused to shut off the engine, refused to exit her vehicle upon request, and was generally belligerent and uncooperative. When the officer succeeded in removing appellant from her vehicle he found it necessary to assist her in order to prevent her from falling. She had a strong odor of alcohol and the officer testified that he had no doubt that she was operating while under the influence of alcohol.

The officer further testified that on three occasions, after having been arrested and after having been advised of her Constitutional rights, and notwithstanding his having advised appellant that her operating privileges would be suspended if she refused to submit to a breathalyzer test, she steadfastly refused to take the test. On the last of the three occasions appellant’s brother, who had been called to police headquarters by the arresting officer, attempted to persuade appellant to take the test, but to no avail. Thereupon, appellant was arraigned and while at the office of the district justice the arresting officer executed the standard form of report of appellant’s refusal to submit to the test setting forth in an affidavit the facts of the arrest, the allegation that the officer had reasonable grounds to believe that appellant had been operating while under the influence of alcohol, the fact [571]*571that appellant had been informed of the consequences of her failing to submit to the examination, and the fact of the request to submit to the chemical test and appellant’s refusal.

The hearing judge accepts the testimony of the police officer and finds as a fact that appellant was requested to take the test, and that after having been advised of the consequences of refusal she did, nonetheless, refuse to take the same. Accordingly, the suspension of appellant’s operating privileges for six months was mandated and was properly imposed.

However, appellant asserted that the charge of operating while under the influence of alcohol had been withdrawn by the arresting officer at the scheduled preliminary hearing and in lieu thereof a summary offense had been charged. When called as a witness for appellant, the arresting officer confirmed the allegation that the misdemeanor charges had indeed been withdrawn and replaced by a summary charge. He, the officer, stated that he had not sent the report adverted to above to the Department of Transportation and had authorized no one else to do so on his behalf. He testified that it had not been his intention to permit the report of appellant’s refusal to take the breathalyzer test to be transmitted to the Department of Transportation. He said that it was his decision to withhold the report, that the original remained in his custody, and that a copy which apparently had been left at the office of the district justice had been forwarded to the department without his knowledge or approval.

Appellant’s counsel argues that inasmuch as the police officer did not personally notify the department of the refusal to take the breathalyzer test the [572]*572suspension is unlawful. This novel argument is based upon the fact that under prior law, section 624.1 of the Vehicle Code,2 it was provided that upon request and refusal to submit to the breathalyzer test “. . . the test shallnotbe given but the secretary may suspend his license ...” Counsel points out that under section 1547(b)(1) of the revised code it is now provided that upon request and refusal to take the test “. . . the test shall not be given but upon notice by the police officer, the department shall: . . .” suspend the operating privilege. It is urged thereby that the legislature intended that there be no suspension unless the police officer personally notifies the department of the request and refusal, and that unintentional notification is not sufficient. We cannot accept that argument.

Clearly this appellant had been placed under arrest for driving while under the influence of alcohol in violation of section 3731 of The Vehicle Code, 75 Pa.C.S.A. §3731. It is also apparent from the officer’s testimony that he had reasonable grounds to believe that appellant had been driving while under the influence of alcohol. As we have heretofore found as a fact, the officer informed appellant of the consequences of her refusal to take the test but nonetheless she refused on three separate occasions. We hold that the language “but upon notice by the police officer” does not limit the department’s right and duty to suspend the operating privileges of a person such as appellant notwithstanding the withdrawal of charges in the [573]*573fashion related above, and notwithstanding the inadvertent notification of the refusal. It has been held that the suspension mechanism is appropriately triggered when the officer has reasonable grounds for believing that a defendant had been driving while under the Influence and is not conditioned upon the legality of the arrest: Glass v. Department of Transportation, 460 Pa. 362, 333 A. 2d 768 (1975); Com. v. Slimick, 33 Pa. Commonwealth Ct. 63, 380 A. 2d 950 (1977).

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Related

Commonwealth v. Williams
338 A.2d 742 (Commonwealth Court of Pennsylvania, 1975)
Commonwealth v. Slimick
380 A.2d 950 (Commonwealth Court of Pennsylvania, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
6 Pa. D. & C.3d 568, 1978 Pa. Dist. & Cnty. Dec. LEXIS 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walsh-license-pactcomplbucks-1978.