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FRANCIS J. BOYLE v. COMMONWEALTH PENNSYLVANIA (05/06/75)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 6, 1975.

FRANCIS J. BOYLE, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE

Appeal from the Order of the Court of Common Pleas of Delaware County in case of Commonwealth of Pennsylvania v. Francis J. Boyle, No. 2281 of 1974.

COUNSEL

Frank J. Lynch, with him, of counsel, Reilly, Lynch, O'Malley & Hazel, for appellant.

John L. Heaton, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Blatt

[ 19 Pa. Commw. Page 23]

This is an appeal by Francis J. Boyle (appellant) from an order of the Court of Common Pleas of Delaware County upholding the suspension of his motor vehicle operator's license by the Department of Transportation, Bureau of Traffic Safety (Bureau).

On August 5, 1973 a Radnor Township police officer arrested the appellant for driving while under the influence of liquor or drugs. He was advised of his right to remain silent under Miranda v. State of Arizona, 384 U.S. 436 (1966), then taken to the police station and requested 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. ยง 624.1.*fn1 He refused. The Bureau suspended his license for six months under the authority of The Vehicle Code, an action upheld by the court below, which we must affirm.

We have previously held that in order to sustain a license suspension under Section 624.1 of The Vehicle

[ 19 Pa. Commw. Page 24]

Code the Commonwealth must prove that the defendant (1) was placed under arrest and (2) was charged with the operation of a motor vehicle while under the influence of intoxicating liquor and (3) was requested to submit to a breathalyzer test and (4) had refused to do so. Bureau of Traffic Safety v. Drugotch, 9 Pa. Commonwealth Ct. 460, 308 A.2d 183 (1973); Commonwealth v. Miles, 8 Pa. Commonwealth Ct. 544, 304 A.2d 704 (1973). The appellant argues here that because of allegedly misleading statements made by the arresting officer, no valid request to submit to the breathalyzer test was made. He claims that, after asking the appellant to take the test, the officer explained "You have the right to take it if you want and you don't have to if you don't want to take it. It's entirely up to you. . . ." According to the officer, the appellant replied that he was not taking any test whatsoever. The officer did not inform the appellant driver that failure to take the test could result in a license suspension, and it is argued, therefore, that the appellant was thereby lulled into feeling that he could refuse to take the breathalyzer test without the adverse consequence of losing his license. His lack of awareness of such a consequence, however, clearly does not relieve him of this civil penalty. Commonwealth v. King, 8 Pa. Commonwealth Ct. 453, 303 A.2d 926 (1973); Commonwealth v. Abraham, 7 Pa. Commonwealth Ct. 535, 300 A.2d 831 (1973). It is clear on the record, and it was clearly believed by the court below, that the appellant was requested to take the test and refused. Neither the fact of his having been informed of a right to remain silent nor the communication of an option to abstain from taking the test releases the appellant from the consequences of his refusal. Glass v. Commonwealth, Pa. , 333 A.2d 768 (1975).

The appellant further suggests that the suspension should be overturned because the Commonwealth did not prove that the breathalyzer test would have been administered

[ 19 Pa. Commw. Page 25]

    with approved equipment and by qualified personnel. These considerations might be valid once the test has been administered but such was not the case here. The requirements set forth in Miles, supra, have been met and the license suspension must, therefore, be upheld.

The Opinion and Order of the Court of Common Pleas of Delaware County is affirmed.

Disposition

Affirmed.


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