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COMMONWEALTH v. END (10/02/72)

decided: October 2, 1972.

COMMONWEALTH
v.
END



Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Commonwealth of Pennsylvania v. Robert Joseph End, No. 71-10257.

COUNSEL

Paul C. Vangrossi, for appellant.

Stuart A. Liner, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellee.

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

Author: Rogers

[ 6 Pa. Commw. Page 348]

This appeal was taken by Robert Joseph End from an order of the Court of Common Pleas of Montgomery County dismissing his appeal from the Secretary of Transportation's order suspending his privilege to operate a motor vehicle.

Appellant was arrested by Norristown Borough police officers and charged with operating his motor vehicle

[ 6 Pa. Commw. Page 349]

    while under the influence of intoxicating liquor. When asked to take a breathalyzer test appellant refused to do so, because, according to him, the arresting officers denied his request that his doctor be summoned. The Secretary of Transportation thereafter notified appellant that his operating privileges were suspended for a period of one year pursuant to Section 624.1(a) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 624.1(a), because of his refusal to submit to a chemical test of breath.

Appellant contends that the refusal of his request that his physician be called to the scene removed the Secretary's power to suspend his license for refusing to take the test. At the hearing below, the appellant testified: "Well when we came into City Hall, we sat down and explained my rights on the breatholizer [sic]. I asked him if I could call a doctor and they said it wasn't necessary to have a doctor. I said: 'I would like to call my doctor.' They said. 'No'. And I said 'Well I refuse to take the test'. And that was all there was said."

Section 624.1(a) of The Vehicle Code, 75 P.S. § 624.1(a) provides: "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. . . . 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."

This statute provides neither that the operator may condition his agreement to take the test nor that the Secretary's power to ...


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