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decided: February 26, 1973.


Appeal from the Order of the Court of Common Pleas of Cambria County in case of Commonwealth of Pennsylvania v. Anthony Michael Abraham, No. 175 September Term, 1970.


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 appellant.

No appearance for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 7 Pa. Commw. Page 536]

On May 4, 1970, on Route 56 in Cambria County, Anthony Michael Abraham (appellee) was apprehended for operating a motor vehicle while under the influence of intoxicating liquor, a violation of Section 1037 of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1037, and, after being so charged, refused to submit to a breathalyzer test as provided in the so-called "Implied Consent Law," Section 624.1(a), of the Code, 75 P.S. § 624.1(a). Having received a report of this refusal, the Secretary of Transportation, under Section 624.1(a), suspended appellee's operator's license for six months, effective June 12, 1970. The Court of Common Pleas of Cambria County, after granting a supersedeas on June 11, 1970 (appellee's license was restored June 19, 1970), sustained appellee's appeal and reversed the Secretary's suspension. The Commonwealth has appealed to this Court.

On September 21, 1970, the lower court, in a separate appeal, found appellee not guilty of operating under the influence of intoxicating liquor. The court therefore reasoned, in the suspension appeal, that where the court finds as a fact that the operator was not driving while under the influence of intoxicating liquor then the operator cannot be "found guilty" of refusing to undergo a breathalyzer test.

[ 7 Pa. Commw. Page 537]

This is clearly incorrect reasoning. Despite the fact that the charge 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. Accord, Appeal Page 537} of Walker, 20 Ches. Co. Rep. 154 (1972). As stated in Annot., 96 A.L.R. 2d 612, 614 (1964), "However, where those circumstances which were the basis of the revocation or suspension were also the basis of charges in a previous criminal case, it might seem to the layman driver that the state has been allowed to try him twice for the same offense, and his notions of fair play might be injured all the more where the previous criminal prosecution resulted in a determination that he was 'not guilty.' Notwithstanding the notions of fair play entertained by laymen, however, what little authority there is on the subject holds that the later proceeding to revoke or suspend his license, since not intended as a punishment of the driver but designed solely for the protection of the public in the use of the highways, does not in the legal sense subject him to double jeopardy or punishment, nor is a judgment of acquittal in the previous criminal case res judicata on the issue of guilt or innocence in the later proceeding, for, as stated by [Commonwealth v. Funk, 323 Pa. 390, 186 A. 65 (1936)], such judgment does not have any probative value in the subsequent proceeding beyond the mere fact of its rendition, the reason for this being found in the nature of the criminal proceedings and the type of proof required therein, for in a criminal proceeding the guilt of the accused must be established beyond a reasonable doubt, whereas in a civil proceeding to revoke a license it is sufficient if the offense is established by a preponderance of the evidence."

It is not disputed that appellee was not warned that his refusal to take the test might result in a suspension of his license. The lower court gave as a further reason for overturning the Secretary's suspension that appellee had a right to be so informed. We must conclude that the lower court erred in its conclusion.

"The underlying rationale of an implied consent statute is that a person has only a privilege granted by

[ 7 Pa. Commw. Page 538]

    the state to operate a motor vehicle upon public highways, not an absolute property right. The Pennsylvania courts have consistently held that the motor vehicle operator's license is a mere privilege, not a property right or a contract, which allows its holder a limited right to use the public highways. The Commonwealth, acting through the General Assembly, may direct the conditions under which [the] privilege may be exercised.*fn1 The license may be revoked by the issuing ...

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