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COMMONWEALTH v. KELLY (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
KELLY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 94 of 1973, in case of Commonwealth of Pennsylvania v. Jeffrey M. Kelly.

COUNSEL

John S. Thome, Jr., Assistant Public Defender, for appellant.

Marc I. Rickles, Assistant District Attorney, Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Spaeth, J. Hoffman and Cercone, JJ., join in this opinion.

Author: Van Der Voort

[ 235 Pa. Super. Page 300]

Appeal is taken from judgment of sentence rendered following conviction at trial without jury on an indictment charging operation of a motor vehicle while under the influence of intoxicating liquor.*fn1 Pursuant to said statute, appellant was sentenced to pay court costs and a fine of $250.00. This appeal follows denial of post-trial motions.

Factually, it appears on the record that a member of the Warminster Township, Bucks County, police department arrived upon the scene of a three-car automobile

[ 235 Pa. Super. Page 301]

    accident. Appellant admitted that he had been driving one of the cars involved. His appearance and the odor surrounding appellant led the investigating officers to conclude that appellant was intoxicated. Appellant was arrested and was asked if he would consent to take a breathalyzer test, to which question appellant replied affirmatively. Being unable to perform this test at the scene, the officer transported appellant to the station-house, again questioning appellant if he would consent to the test and receiving consent, the test was then administered and registered positive.

Appellant challenges the judgment of sentence by arguing that the results of the breathalyzer test should have been suppressed when proper motion was made therefor, reasoning that the arrest was unlawful as being based upon a misdemeanor committed outside the view of the officer. See Commonwealth v. Hargrave, 212 Pa. Superior Ct. 167, 240 A.2d 570 (1968). Arguing the alleged illegality of the arrest, appellant urges upon us the conclusion that a search, here the breathalyzer test, could not be conducted, pursuant to that arrest, and away from the scene of the accident. Because of appellant's unequivocal and freely-given consent to the test involved herein, we disagree.

We find that the factual situation of this case is within the purview of Commonwealth v. Quarles, 229 Pa. Superior Ct. 363, 324 A.2d 452 (1974). Therein, this court noted that while the "implied consent" law may allow an investigating officer to give a breathalyzer test at the scene, the officer must obtain an arrest warrant or have probable cause for a misdemeanor occurring in his presence, if the suspect is to be removed to the police station for testing. Our oft-stated concerns for the integrity of the individual's control over his person mandate this position.*fn2 Quarles, supra, provides an exception to this

[ 235 Pa. Super. Page 302]

    in the situation where "a driver may actually consent to a seizure of his person and the administration of a test of his breath ...


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