Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Dorsey M. Shultz, No. 75-8102.
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.
Norman Mittman, for appellee.
Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 25 Pa. Commw. Page 600]
This is an appeal by the Department of Transportation, Bureau of Traffic Safety (Department) from a decision, dated October 10, 1975, of the Court of Common Pleas of Montgomery County which reversed the Department's suspension of Dorsey M. Shultz' driving privileges. On September 20, 1974, Shultz was arrested and charged with operating a vehicle while under the influence of intoxicating liquors, a violation of Section 1037 of the Vehicle Code*fn1 (Code), 75 P.S. § 1037, and taken to the police station where he refused to submit to a chemical test of his breath. Section 624.1(a) of the Code, 75 P.S. § 624.1(a), provides:
"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
[ 25 Pa. Commw. Page 601]
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.)
Pursuant to this statutory provision, Shultz' operating privileges were suspended on May 12, 1975 for a period of six months commencing June 16, 1975. The lower court, however, sustained his appeal and reversed the suspension, because it found that "the arresting officers did not have reasonable grounds to believe that [Shultz] had been operating a motor vehicle under the influence of intoxicating liquors."
We are faced here with two issues: (1) whether or not Section 624.1(a) of the Code requires that the arresting police officer have reasonable grounds to believe that the person, who is arrested for a violation of Section 1037 of the Code and requested to submit to a chemical test of his breath for the purpose of determining the alcoholic content thereof, had been driving while under the influence of alcohol; and (2) if "reasonable grounds" are so required, whether or not the trial court properly reversed the suspension.
In Commonwealth v. Miles, 8 Pa. Commonwealth Ct. 544, 551, 304 A.2d 704, 708 (1973), this Court concluded that
" if, in fact, a person is (1) placed under arrest and (2) charged with the operation of a motor vehicle while under the influence of intoxicating liquor and (3) is requested to submit to a breathalyzer test and (4) refuses to do so, the Secretary may [pursuant to Section 624.1(a) of ...