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COMMONWEALTH PENNSYLVANIA v. JAMES HERESKO (02/09/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 9, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES HERESKO, JR. APPELLANT

Appeal from the Order of the Court of Common Pleas of Chester County in case of Commonwealth of Pennsylvania v. James Heresko, Jr., Misc. No. 130-1975.

COUNSEL

Lawrence Sager, with him Sager & Sager Associates, for appellant.

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

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 28 Pa. Commw. Page 509]

On July 8, 1974, James Heresko, Jr., was placed under arrest and charged with operating a motor vehicle while under the influence of intoxicating liquor. Thereafter he was helped to a patrol vehicle and taken to a local police station. There a request that he 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 was refused.

[ 28 Pa. Commw. Page 510]

The Department of Transportation, Bureau of Traffic Safety, suspended Heresko's license for six months. Heresko appealed to the Court of Common Pleas of Chester County, averring that he "should not be subject to a suspension." The lower court, however, disagreed, and it affirmed the suspension.

Heresko has appealed to this Court, contending that the Commonwealth did not meet its burden of proof before the court below because it did not offer evidence that the breathalyzer test would have been administered by a qualified person using authorized equipment. We agree with the court below that such an offer is not necessary.

We have previously held that, in order to sustain a license suspension under Section 624.1, the Commonwealth must prove that (1) the defendant was placed under arrest and (2) charged with the operation of a motor vehicle while under the influence of intoxicating liquor, that (3) he was requested to submit to a breathalyzer test, and that (4) he 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). In Boyle v. Bureau of Traffic Safety, 19 Pa. Commonwealth Ct. 22, 339 A.2d 834 (1975), we held that whether the test would have been administered by qualified personnel on approved equipment is not at issue where the test has been refused. Once the requirements in Miles, supra, have been met, the defendant's license may properly be suspended. Since

[ 28 Pa. Commw. Page 511]

    we find both that Boyle controls and that the four requirements for sustaining a license suspension have been met, we must uphold the suspension.

Order affirmed.

Order

And Now, this 9th day of February, 1977, the order of the Court of Common Pleas of Chester County, dated October 10, 1975, is affirmed.

Disposition

Affirmed.


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