decided: May 11, 1973.
Appeal from the Order of the Court of Common Pleas of Northampton County in case of Commonwealth of Pennsylvania v. John S. Miles, No. 200 August Term, 1971.
John M. Yarema, with him Martin H. Philip, for appellant.
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.
Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer.
[ 8 Pa. Commw. Page 545]
On July 25, 1971, on Route 329 in East Allen Township, Northampton County, John S. Miles (Miles) was apprehended by a Pennsylvania State Policeman 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).*fn1 Having received a report of
[ 8 Pa. Commw. Page 546]
this refusal from the district justice involved, the Secretary of Transportation, under Section 624.1(a), suspended Miles' operator's license for six months. Miles appealed to the Court of Common Pleas of Northampton County which, after a de novo hearing, denied the appeal. This appeal by Miles followed.
To explain the circumstances leading to and surrounding Miles' refusal to submit to the breathalyzer test, we adopt the following material findings of fact made by the court below:
"1. On July 25, 1971, while operating his motor vehicle, Defendant was involved in an automobile accident on Pa. Route 329, East Allen Township.
"4. Approximately 15 minutes after arriving at the scene, Trooper Tretter asked a group of bystanders who the driver of the other vehicle was, at which time John S. Miles, Defendant herein, came forward and stated that he was.
"6. During the investigation, Trooper Tretter had ample opportunity to observe Defendant's demeanor. In this regard, Trooper Tretter testified that Defendant's eyes appeared bloodshot, that his speech was slurred, that he had difficulty maintaining his balance while standing and walking, and that he had a strong odor of intoxicating beverage on his breath.
"7. Not actually having seen Defendant operating his vehicle, but based upon his observations of Defendant
[ 8 Pa. Commw. Page 547]
after the accident had occurred, and Defendant's admission that he had been operating the vehicle, Trooper Tretter, without a warrant, placed Defendant under arrest pursuant to [Section 1037] for driving under the influence of intoxicating beverages.
"8. After administering the Miranda*fn2 warnings, Trooper Tretter requested that Defendant submit to an approved chemical test of his breath pursuant to [Section 624.1(a)].
"9. Defendant refused to submit to the test at that time and again upon being asked at his arraignment.
"12. The testimony of Trooper Tretter was sufficient to convince this Court, by a preponderance of the evidence, that the Defendant, prior to the accident, was operating his vehicle while under the influence of intoxicating beverages." (Footnote added.)
Miles' basis for appeal below, as here, is the contention that the Secretary may not suspend his operator's license for his refusal to submit to a breathalyzer test upon request because the request was not made incident to a lawful arrest. More specifically, Miles contends that, since the arresting officer did not actually see him operate his motor vehicle on the night of the accident and also did not obtain a warrant for his arrest, the arrest was unlawful and no valid suspension can result therefrom.
Pointing to the words "placed under arrest" in Section 624.1(a), Miles relies on Sections 1204*fn3 and 1214*fn4
[ 8 Pa. Commw. Page 548]
of The Vehicle Code, 75 P.S. §§ 1204, 1214, Section 712 of the Administrative Code of 1929,*fn5 71 P.S. § 252, Pa. R. Crim. P. 102(3),*fn6 and that general rule of law amply stated by Commonwealth v. Pincavitch, 206 Pa. Superior Ct. 539, 544, 214 A.2d 280, 282 (1965): "The general rule is, 'A peace officer may, without a warrant, arrest for a felony or for a misdemeanor committed in his presence although the right to arrest for a misdemeanor, unless conferred by statute, is restricted to misdemeanors amounting to a breach of the peace.' 6 C.J.S. Arrest § 6(a). This is extended to such cases where probable cause exists for believing a person has committed a felony. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S. Ct.
[ 8 Pa. Commw. Page 549204]
, 11 L. Ed. 2d 149; but we find no authority that justifies an arrest without a warrant for a misdemeanor or summary offense committed beyond the presence of the arresting officer in the absence of a statute giving that right."
Generally, an arrest may be accomplished by acts of the police that indicate their intention to take the person into custody and subject him to their control. No formal declaration of arrest or the application of physical force is required. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Friel, 211 Pa. Superior Ct. 11, 234 A.2d 22 (1967).
There are two common definitions of "arrest." One is the lawful taking of a person into custody in order that he may be forthcoming to answer for the commission of an alleged crime. See Commonwealth v. Dorsey, 212 Pa. Superior Ct. 339, 243 A.2d 176 (1968). The other view is that an arrest is any act that indicates an intention to take a person into custody and that subjects him to the actual control and will of the person making the arrest. Commonwealth v. Bosurgi, supra. Thus a deprivation or restraint of a person's liberty, whether or not it culminates in criminal charges being filed and results in a conviction or an acquittal, is an arrest.
Here Miles was completely in the custody of and under the actual control of a Pennsylvania State Policeman.*fn7 Miles submitted to the restraint implicit in an arrest and accompanied the trooper to the office of the justice of the peace where the trooper swore to and signed the complaint formally charging Miles with operating a motor vehicle while under the influence of
[ 8 Pa. Commw. Page 550]
intoxicating liquor.*fn8 Thus Miles was placed under arrest before the charge was made.
We think the words "placed under arrest" in Section 624.1(a) fall within the broader second view above and refer to a factual situation (i.e., whether the defendant in fact was deprived or restrained of his liberty) which is a prerequisite, along with being "charged with the operation of a motor vehicle or tractor while under the influence of intoxicating liquor," to the request to submit to a chemical test.
Had the Legislature used more explicit words in Section 624.1(a), such as "a lawful arrest without warrant," as, for example, it did in Section 314 of the Penal Code of 1939, Act of June 24, 1939, P.L. 872, as amended, 18 P.S. § 4314, then the first definition above would apply to Section 624.1(a) arrests. There would be needed a lawful arrest, and not merely a deprivation or restraint of a person's liberty.
We are here dealing with the authority to request a person to submit to a chemical test and not, as was the Superior Court in Commonwealth v. Reeves, 223 Pa. Superior Ct. 51, 297 A.2d 142 (1972), with the admission into evidence of the result of such a test. See Commonwealth v. Brown, Pa. Superior Ct. , 302 A.2d 475 (1973). The Legislature, in Section 624.1(a), stated that the breathalyzer test is to be administered
[ 8 Pa. Commw. Page 551]
at the direction of a police officer "having reasonable grounds to believe the person to have been driving while under the influence of intoxicating liquor." This is not the same standard as applied in Commonwealth v. Reeves, supra, to determine whether a police officer may make a warrantless arrest for a misdemeanor.
Therefore, we conclude that if, in fact, a person is (1) placed under arrest and (2) charged with the operation of a motor vehicle while under the influence of intoxicating liquor and (3) is requested to submit to a breathalyzer test and (4) refuses to do so, the Secretary may suspend that person's operator's license. It is not a question of the lawfulness of the arrest or the admissibility into evidence of the results of the test, but rather the refusal to submit to the test at a time when Section 624.1(a) is applicable. It is a factual determination not a legal determination.
Here it is admitted that factually Miles was placed under arrest, charged with a Section 1037 offense, requested to submit to the breathalyzer test and refused. Such being the case, there is no legal defense available to him.