Summary
In Boyle v. Bureau of Traffic Safety, 19 Pa. Commw. 22, 339 A.2d 834 (1975), we held that whether the test would have been administered by qualified personnel on approved equipment is not at issue where the test has been refused.
Summary of this case from Commonwealth v. HereskoOpinion
Argued February 7, 1975
May 6, 1975.
Motor vehicles — Suspension of motor vehicle operator's license — The Vehicle Code, Act 1959, April 29, P.L. 58 — Refusal of breath test — Burden of proof — Right to refuse — Unawareness of civil consequences — Proper administration of breath test.
1. A motor vehicle operator's license is properly suspended under The Vehicle Code, Act 1959, April 29, P.L. 58, upon proof by the Commonwealth that the licensee was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor and refused to submit to a breath test when requested to do so. [23-4]
2. Suspension of a motor vehicle operator's license under The Vehicle Code, Act 1959, April 29, P.L. 58, for refusal to submit to a breath test following arrest for driving while under the influence of intoxicating liquor is not invalid because the licensee was advised of his right to remain silent or refuse the test or was unaware of the civil consequences of his refusal. [24]
3. The Commonwealth has no duty to prove that a breath test would have been administered with approved equipment and by qualified personnel in proceedings relating to the suspension of a motor vehicle operator's license for refusing to submit to such test. [24]
Argued February 7, 1975, before Judges KRAMER ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 825 C.D. 1974, from the Order of the Court of Common Pleas of Delaware County in case of Commonwealth of Pennsylvania v. Francis J. Boyle, No. 2281 of 1974.
Suspension of motor vehicle operator's license by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Delaware County. Appeal dismissed. ORLOWSKY, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Frank J. Lynch, with him, of counsel, Reilly, Lynch, O'Malley Hazel, for appellant. John L. Heaton, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
This is an appeal by Francis J. Boyle (appellant) from an order of the Court of Common Pleas of Delaware County upholding the suspension of his motor vehicle operator's license by the Department of Transportation, Bureau of Traffic Safety (Bureau).
On August 5, 1973 a Radnor Township police officer arrested the appellant for driving while under the influence of liquor or drugs. He was advised of his right to remain silent under Miranda v. State of Arizona, 384 U.S. 436 (1966), then taken to the police station and requested to submit to a breathalyzer test under Section 624.1 of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 Pa.C.S.A. § 624.1. He refused. The Bureau suspended his license for six months under the authority of The Vehicle Code, an action upheld by the court below, which we must affirm.
Section 624.1 provides in pertinent part: "(a) Any person who operates a motor vehicle or tractor in this Commonwealth, shall be deemed to have given his consent to a chemical test of his breath, for the purpose of determining the alcoholic content of his blood: Provided, That the test is administered by qualified personnel and with equipment approved by the secretary at the direction of a police officer having reasonable grounds to believe the person to have been driving while under the influence of intoxicating liquor . . . . If any person is placed under arrest and charged with the operation of a motor vehicle or tractor while under the influence of intoxicating liquor and is thereafter requested to submit to a chemical test and refuses to do so, the test shall not be given but the secretary may suspend his license or permit to operate a motor vehicle or tractor with or without a hearing. (Emphasis added.)
We have previously held that in order to sustain a license suspension under Section 624.1 of The Vehicle Code the Commonwealth must prove that the defendant (1) was placed under arrest and (2) was charged with the operation of a motor vehicle while under the influence of intoxicating liquor and (3) was requested to submit to a breathalyzer test and (4) had refused to do so. Bureau of Traffic Safety v. Drugotch, 9 Pa. Commw. 460, 308 A.2d 183 (1973); Commonwealth v. Miles, 8 Pa. Commw. 544, 304 A.2d 704 (1973). The appellant argues here that because of allegedly misleading statements made by the arresting officer, no valid request to submit to the breathalyzer test was made. He claims that, after asking the appellant to take the test, the officer explained "You have the right to take it if you want and you don't have to if you don't want to take it. It's entirely up to you. . . ." According to the officer, the appellant replied that he was not taking any test whatsoever. The officer did not inform the appellant driver that failure to take the test could result in a license suspension, and it is argued, therefore, that the appellant was thereby lulled into feeling that he could refuse to take the breathalyzer test without the adverse consequence of losing his license. His lack of awareness of such a consequence, however, clearly does not relieve him of this civil penalty. Commonwealth v. King, 8 Pa. Commw. 453, 303 A.2d 926 (1973); Commonwealth v. Abraham, 7 Pa. Commw. 535, 300 A.2d 831 (1973). It is clear on the record, and it was clearly believed by the court below, that the appellant was requested to take the test and refused. Neither the fact of his having been informed of a right to remain silent nor the communication of an option to abstain from taking the test releases the appellant from the consequences of his refusal. Glass v. Commonwealth, ___ Pa. ___, 333 A.2d 768 (1975).
The appellant further suggests that the suspension should be overturned because the Commonwealth did not prove that the breathalyzer test would have been administered with approved equipment and by qualified personnel. These considerations might be valid once the test has been administered but such was not the case here. The requirements set forth in Miles, supra, have been met and the license suspension must, therefore, be upheld.
The Opinion and Order of the Court of Common Pleas of Delaware County is affirmed.