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COMMONWEALTH v. GALLAGHER (11/09/71)

decided: November 9, 1971.

COMMONWEALTH
v.
GALLAGHER



Appeal from Order of the Court of Common Pleas of Delaware County, No. 7424 of 1970, in case of Commonwealth of Pennsylvania, Department of Transportation v. Daniel A. Gallagher.

COUNSEL

Anthony J. Maiorana, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellant.

Robert E. J. Curran, with him Stephen A. McBride, Kassab, Cherry, Curran & Archbold, for appellee.

Judges Manderino, Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers. Judge Manderino dissents.

Author: Rogers

[ 3 Pa. Commw. Page 372]

The Commonwealth has appealed from an order of the Court of Common Pleas of Delaware County sustaining the appeal of Daniel A. Gallagher from the suspension by the Secretary of Revenue of his license to operate a motor vehicle. The Secretary's action was grounded on Gallagher's refusal, upon his arrest for operating a motor vehicle while under the influence of intoxicating liquor, of a request of police officers that he submit to a chemical test of his breath. The officers did not advise Gallagher, the appellee here, that he would be permitted to have a physician of his own choosing then and there administer a breath test in addition to that proposed to be given by the officers. The appellee contends, and the court below concluded, that this omission rendered the suspension legally ineffective.

[ 3 Pa. Commw. Page 373]

Section 624.1 of The Vehicle Code, 1959, April 29, P.L. 58, added 1961, July 28, P.L. 918, as amended, 75 P.S. 624.1, here involved, provides in pertinent part as follows:

"(a) Any person who operates a motor vehicle . . . 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. . . . 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 . . . with or without a hearing. . . .

"(b) In any summary proceeding or criminal proceeding in which the defendant is charged with driving a motor vehicle or tractor while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood . . . shall be admissible in evidence.

"(e) Upon request of any person tested, the results of any chemical test shall be made available to him or his attorney.

"(f) If for any reason a person is physically unable to supply enough breath to complete a chemical test a physician . . . may withdraw blood for the purpose of determining the alcoholic content therein. Consent is hereby given by such persons. The chemical analysis of the blood taken under these circumstances shall be admissible in evidence.

"(g) The person tested shall be permitted to have a physician of his own choosing then and there administer a breath or blood chemical test in addition, and the results of ...


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