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decided: June 22, 1971.


Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, No. SA-203 of 1970, in case of Commonwealth of Pennsylvania v. James Herbert Morris.


Anthony J. Maiorana, Assistant Attorney General, with him Elmer T. Bolla, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Commonwealth, appellant.

No oral argument was made nor brief submitted for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 218 Pa. Super. Page 348]

Appellee was apprehended, on October 26, 1969, on a charge of operating a motor vehicle while under the influence of intoxicating liquor. He was taken to a police station where police officers requested that he submit to a breathalyzer test as provided in the so-called "Implied Consent Law," § 624.1(a) of The Vehicle Code of April 29, 1959, P. L. 58, as amended, 75 P.S. § 624.1(a).*fn1

Appellee requested that he be permitted to make a telephone call to his attorney before submitting to the test. This request was denied by the police and appellee, thereupon, refused to take the test. A report of this refusal was then sent to the Department of Transportation, Bureau of Traffic Safety. The Secretary of Revenue suspended appellee's license for a period of three months, effective December 22, 1969, for refusal to submit to the test. Appellee appealed this suspension to the lower court on March 10, 1970.

On April 29, 1970, the appeal was sustained. The lower court defined the issue to be: Should police officers honor a specific request by a licensee to make a telephone call prior to taking the chemical test? It then held that it was unreasonable for police officers

[ 218 Pa. Super. Page 349]

    to deny such a request; therefore, in these circumstances, there was not a refusal to submit to a chemical test as required by § 624.1(a). Thus, the lower court set aside the order of suspension. We reverse.

The action of the secretary in suspending a license for refusal to take a breath test is a civil proceeding. Cf. Commonwealth v. Halteman, 192 Pa. Superior Ct. 379, 162 A.2d 251 (1960); Commonwealth v. Funk, 323 Pa. 390, 400, 186 A. 65, 70 (1936). Insofar as this civil proceeding is concerned, the licensee has no right to have an attorney present before deciding whether or not he will take the test. Mills v. Bridges, 93 Idaho 679, 471 P. 2d 66 (1970); State v. Pandoli, 109 N.J. Super. 1, 262 A.2d 41 (1970); Stratikos v. Department of Motor Vehicles, Or. App., 477 P. 2d 237 (1970).*fn2 There also is no right, either constitutional or statutory, to be able to call an attorney before deciding whether or not to take the test. Rusho v. Johns, 186 Neb. 131, 181 N.W. 2d 448 (1970); Finocchairo v. Kelly, 11 N.Y. 2d 58, 181 N.E. 2d 427, 226 N.Y.S. 2d 403 (1962), cert. denied, 370 U.S. 912 (1962).*fn3

Since no constitutional or statutory rights were abridged, it follows that appellee had no right to condition his taking the test upon being able to make a telephone call. Admittedly, there was only a qualified refusal; however, § 624.1(a) does not require that there be a flat refusal. As stated in State v. Pandoli, supra:

[ 218 Pa. Super. Page 350]

"In any event, the request for consultation with counsel necessarily involved a delay in administration of the test. Having in mind the remedial purpose of the statute, and the rapidity with which the passage of time and physiological processes tend to eliminate evidence of ingested alcohol in the system, it is sensible to construe the statute to mean that anything substantially short of an unqualified, unequivocal assent to an officer's request that the arrested motorist take the test constitutes a refusal to do so. . . . The occasion is not one for debate, maneuver or negotiation, but rather a simple 'yes' or 'no' to the officer's request." (Emphasis added.)

The order of the court below is reversed and the order of suspension of the Secretary of Revenue is reinstated.


Order of court below reversed and suspension of Secretary of Revenue reinstated.

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