Appeal from the Order of the Court of Common Pleas of Somerset County in case of Commonwealth of Pennsylvania v. Randy Guarino, No. 60 Civil 1974.
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 appellant.
No appearance for appellee.
Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.
[ 19 Pa. Commw. Page 105]
On January 18, 1974, in the Borough of Indiana, Randy Guarino (Guarino) was stopped by a borough policeman after making a sharp U-turn immediately in
[ 19 Pa. Commw. Page 106]
front of the policeman's vehicle. Upon approaching Guarino's vehicle, the policeman detected the odor of alcoholic beverages on Guarino's breath. Guarino was asked to get out of his car and thereafter he "weaved back and forth" when he walked.
Guarino was placed under arrest and asked to submit to a breathalyzer test as provided in the so-called "Implied Consent Law," Section 624.1(a) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 624.1(a).*fn1 Guarino did not answer the question and was reasked the question "a couple times" at the scene of the arrest but he continued to stand mute.
Guarino was transported to a magistrate's office and again asked to submit to a breathalyzer test but he again made no response. The equipment necessary for administering a breathalyzer test was located approximately three miles from the magistrate's office at the Indiana Barracks of the Pennsylvania State Police. The magistrate and policeman signed a report form indicating that Guarino
[ 19 Pa. Commw. Page 107]
had refused to submit to a breathalyzer test. Upon receipt of this report form, the Secretary of Transportation, under Section 624.1(a), suspended Guarino's operator's license for a period of six months. Guarino appealed from this suspension to the Court of Common Pleas of Somerset County which, after a de novo hearing, sustained the appeal and vacated the Secretary of Transportation's suspension order. This appeal by the Commonwealth followed and we affirm.
If, in fact, an operator of a motor vehicle is (1) placed under arrest and (2) charged with the operation of a motor vehicle while under the influence of intoxicating liquor and (3) requested to submit to a breathalyzer test and (4) if he refuses to do so, the Secretary of Transportation may suspend that operator's license to operate a motor vehicle Commonwealth v. Miles, 8 Pa. Commonwealth Ct. 544, 304 A.2d 704 (1973). Here Guarino does not dispute this statement of the law but does contend that his ...