Appeal from the Order of the Court of Common Pleas of Chester County in case of Commonwealth of Pennsylvania v. Raymond A. Kelly, Misc. No. 13525, 1971.
John L. Heaton, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
Raymond A. Kelly, appellee, for himself.
President Judge Bowman and Judges Crumlish, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
[ 18 Pa. Commw. Page 491]
This appeal involving unique factual nuances, is from an order of the Court of Common Pleas of Chester County which sustained the appeal of Raymond A. Kelly (Kelly) whose operator's license was suspended for six (6) months by the Secretary of the Department of Transportation because he refused to submit to a breathalyzer test under Section 624.1 of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 624.1.
On May 17, 1971, Kelly was arrested in the Borough of West Chester for driving under the influence of intoxicating liquor in violation of Section 1037 of The Vehicle Code, 75 P.S. § 1037. That night, the arresting officers observed Kelly suddenly careen his automobile onto a sidewalk and back into the street. The officers observed
[ 18 Pa. Commw. Page 492]
Kelly walking unsteadily and with a pronounced bouquet of alcohol on his breath. Kelly was immediately placed under arrest and taken to the police station where he was asked to submit to a Mobat breathalyzer test. Although warned of the effect of a refusal, Kelly refused to submit to the test because he was out of breath due to the emotional excitement of the arrest. When reported to him, the Secretary suspended Kelly's license for six (6) months, effective November 2, 1971, under the authority of Section 624.1(a) of The Vehicle Code, 75 P.S. § 624.1(a). An immediate appeal followed and the lower court granted a supersedeas on November 11, 1971. After a series of delays not explained on this record, a second trial judge heard the case de novo as the original transcript of the prior hearing could not be located. On June 4, 1974, the lower court entered an order reversing the suspension on the ground that the Commonwealth had failed to prove that Kelly was physically able to submit to a breathalyzer test. It reasoned that he had not " refuse[d] " to submit to a chemical test within the meaning of Section 624.1.
The Commonwealth has appealed this judgment to us, and we reverse.
Section 624.1 provides in pertinent part:
"(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 under the influence of intoxicating liquor. . . . If any person ...