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COMMONWEALTH PENNSYLVANIA v. ERROL P. EBERT (07/14/77)

decided: July 14, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
ERROL P. EBERT, APPELLANT



Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Commonwealth of Pennsylvania v. Errol P. Ebert, No. 69 September Term, 1976.

COUNSEL

Dean L. Foote, with him Foote and Greisamer, 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 Kramer, Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 31 Pa. Commw. Page 83]

This is an appeal by Errol P. Ebert (Appellant) from an order of the Court of Common Pleas of Lehigh County, Pennsylvania, dated August 20, 1976. The order affirmed the Secretary of Transportation's (Secretary) suspension of Appellant's vehicle operator's license pursuant to Section 624.1(a) of the Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75

[ 31 Pa. Commw. Page 84]

P.S. § 624.1(a),*fn1 for refusing to submit to a breathalyzer test. We affirm.

On April 10, 1976, Appellant was involved in an accident in the City of Allentown, Pennsylvania while operating his motor vehicle. The Allentown police officer called to the scene to investigate the accident testified that he observed Appellant drop his cards while searching for his owner's card. The officer further testified that he detected that Appellant swayed while walking to the police vehicle and that he smelled of alcohol. The officer thereupon asked Appellant to accompany him to police headquarters for the purpose of taking a sobriety test. Appellant consented to this request. While on the way to the station the Appellant was informed that he was under arrest for driving while under the influence of intoxicating liquor.

At police headquarters, Appellant was asked three times to submit to a breathalyzer test. He was informed that although he was not compelled to submit to the test, failure to do so would result in a six-month suspension of his driver's license. Appellant persisted in refusing and was released. A charge of driving while under the influence of intoxicating liquor, in violation of Section 1037 of the Vehicle Code, 75 P.S. § 1037, was formally filed against Appellant on April 20, 1976. The Secretary subsequently informed Appellant on June 1, 1976, that his driver's license was suspended pursuant to Section 624.1(a) of the Vehicle Code, 75 P.S. § 624.1(a), for refusing to submit to a sobriety test. Section 624.1(a) provides:

(a) 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

[ 31 Pa. Commw. Page 85]

    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 physican 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 ...


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