Opinion
Argued May 10, 1973
June 21, 1973.
Motor vehicles — Suspension of motor vehicle operator's license — The Vehicle Code, Act 1959, April 29, P. L. 58 — Refusal of breath test — Acquittal of charges — Driving while under the influence of intoxicating liquor.
1. Provisions of The Vehicle Code, Act 1959, April 29, P. L. 58, authorize the suspension of a motor vehicle operator's license of a person who refuses to submit to a lawfully requested breath test, and such suspension is not affected by a subsequent acquittal of the charge of driving while under the influence of intoxicating liquor, out of which charge the request for the test arose. [384-5]
Argued May 10, 1973, before Judges CRUMLISH, JR., WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 1082 C.D. 1972, from the Order of the Court of Common Pleas of Westmoreland County in case of Commonwealth of Pennsylvania v. Steve Yakubisin, No. 129 January Term, 1969.
Suspension of motor vehicle operator's license by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Westmoreland County. Appeal sustained. SCULCO, J. Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Order of suspension reinstated.
Stuart A. Liner, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.
No appearance for appellee.
On December 23, 1968, appellee Steve Yakubisin was apprehended for operating his motor vehicle while under the influence of intoxicating liquor. He then refused the police officer's request that he submit to a chemical breath test. The Secretary of Transportation, when made aware of appellee's decision, notified him that his operating privileges were suspended pursuant to the authority of § 624.1(a) of The Vehicle Code, 75 Pa.C.S.A. § 624.1(a). He appealed to the Court of Common Pleas of Westmoreland County which granted a supersedeas of the suspension pending the outcome.
Act of April 29, 1959, P. L. 58, § 624.1 as amended, 75 Pa.C.S.A. § 624.1.
After hearing, the lower court sustained the appeal and restored appellee's operating privileges. The court held that the Secretary abused his discretion because appellee had been acquitted in prior criminal proceedings stemming from the charge of driving while under the influence of intoxicating liquor. The lower court's error, undoubtedly made because of its unfamiliarity with our recent pronouncement, must call for reversal.
This precise issue was before us in Commonwealth v. Abraham, 7 Pa. Commw. 535, 300 A.2d 831 (1973) and we now hold that Abraham controls. This Court there held that the action of the Secretary in suspending operating privileges under the same circumstances was proper. Judge MENCER, writing for this Court, said in Abraham, supra, that "[d]espite the fact that the charge [of driving while under the influence of intoxicating liquor] against appellee was dismissed, there remains the separate refusal to take the test. For the simple reason that the suspension was a civil proceeding, and the acquittal was a result of a criminal proceeding, the Secretary acted properly." See also Annot., 96 A.L.R. 2d 612, 614 (1964).
Accordingly, the order of the Court of Common Pleas of Westmoreland County is reversed, and the order of the Secretary of Transportation is reinstated.