Summary
In Edmundson v. Commonwealth of Pennsylvania, 38 Pa. Commw. 231, 233, 392 A.2d 902, 902 (1978), our court determined that "appellant's conduct at the police station following his arrest... amounted to a refusal to submit to the test.
Summary of this case from Abate v. Dept. of TransportationOpinion
Argued September 11, 1978
October 23, 1978.
Motor vehicles — Suspension of motor vehicle operator's license — The Vehicle Code, Act 1959, April 29, P.L. 58 — Refusal of breath test — Administration of test by qualified personnel — Burden of proof.
1. A motor vehicle operator's license is properly suspended under The Vehicle Code, Act 1959, April 29, P.L. 58, for refusal to take a breath test requested following an arrest for driving while under the influence of intoxicating liquor, and a refusal occurs when the operator demonstrates by his actions something less than unequivocal assent. [232-3]
2. In a proceeding for the suspension of a motor vehicle operator's license for refusal to submit to a requested breath test, the Commonwealth need not prove that the test was administered by qualified personnel on approved equipment. [233]
Argued September 11, 1978, before Judges WILKINSON, JR., ROGERS and CRAIG, sitting as a panel of three.
Appeal, No. 961 C.D. 1977, from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Claude Edmundson, No. SA 1083 of 1976.
Suspension of motor vehicle operator's license by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Allegheny County. Appeal denied. Ross, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Lester G. Nauhaus, for appellant.
Harold H. Cramer, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
The Commonwealth's Secretary of Transportation suspended appellant's motor vehicle operator's license for six months, pursuant to then applicable Section 624.1(a) of the Vehicle Code, for refusal to take the breathalyzer test.
Act of April 29, 1959, P.L. 58, as amended, added by Section 1 of the Act of July 28, 1961, P.L. 918, as amended, formerly 75 Pa.C.S.A. § 624.1(a), repealed by the Act of June 17, 1976, P.L. 162. A similar provision is now found in the Vehicle Code, 75 Pa. C.S. § 1547.
The Court of Common Pleas of Allegheny County, at No. S.A. 1083 of 1976, dismissed an appeal of that suspension, and the present appeal followed. We affirm.
The lower court correctly found that appellant's conduct at the police station following his arrest on charges of operating a motor vehicle while intoxicated amounted to a refusal to submit to the test. Appellant's actions demonstrated something much less then unequivocal assent. See: Department of Transportation, Bureau of Highway Safety v. O'Rourke, 25 Pa. Commw. 580, 361 A.2d 497 (1976).
The sole issue raised here is whether the Commonwealth had the burden of proving that the test was administered by qualified personnel on approved equipment.
Qualified administration of the test is clearly not at issue in a refusal case. Commonwealth v. Heresko, 28 Pa. Commw. 508, 368 A.2d 1357 (1977); Boyle v. Department of Transportation, Bureau of Traffic Safety, 19 Pa. Commw. 22, 339 A.2d 834 (1975).
ORDER
AND NOW, this 23rd day of October, 1978, the order of the Court of Common Pleas of Allegheny County is hereby affirmed.