John G. Arch, Pittsburgh, for appellant.
John L. Heaton, Anthony J. Maiorana, Asst. Attys. Gen., Robert W. Cunliffe, Deputy Atty. Gen., Harrisburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., filed a dissenting opinion in which O'Brien and Manderino, JJ., join.
On July 26, 1972, appellant, John J. Glass, was involved in an accident while operating his automobile. A police officer subsequently arrived on the scene and, after a brief investigation, placed appellant under arrest for driving while under the influence of alcohol. The officer had not seen appellant operating the vehicle nor had he obtained a warrant for appellant's arrest.
Appellant was taken to the police station and asked to submit to a breathalyzer test. He was informed that failure to submit would result in a suspension of his license under section 624.1(a) of the Vehicle Code, Act of April 29, 1959, P.L. 58 as amended, 75 P.S. § 624.1(a). He nevertheless refused to take the test. The Secretary of Transportation (Secretary), upon report of such refusal, suspended appellant's motor vehicle operating privileges. Appellant then filed an appeal in the Court of Common Pleas of Allegheny County. By order dated July 13, 1973, that court upheld the action of the Secretary and dismissed the appeal. The Commonwealth Court affirmed and this Court granted allocatur.
Section 624.1(a) of the Vehicle Code provides:
"(a) 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: Provided, That the test is administered by qualified personnel and with equipment approved by the secretary 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. Qualified personnel means a physician or a police
officer who has received training in the use of such equipment in a training program approved by the secretary. 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. Any person whose license or permit to operate a motor vehicle or tractor is suspended under the provisions of this act shall have the same right of appeal as provided for in cases of suspension for other reasons." (Emphasis added).
The Commonwealth admits that appellant had not been lawfully arrested at the time he was asked to submit to the breathalyzer test because the offense had not been committed in the officer's presence nor had the officer obtained an arrest warrant. See Act of April 29, 1959, P.L. 58, § 1204, 75 P.S. § 1204.*fn1
The principal question presented in this appeal is whether the term "arrest" as used in section 624.1(a) requires a seizure of the person in accordance with section 1204. We defined the physical act of "arrest" in the case of Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963), as "any act that indicates an intention to take [a ...