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COMMONWEALTH PENNSYLVANIA v. RICHARD J. FUNK (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD J. FUNK, APPELLANT



COUNSEL

Michael J. Perezous, Lancaster, for appellant.

D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Hoffman, J., files a concurring opinion.

Author: Spaeth

[ 254 Pa. Super. Page 235]

This is an appeal from judgment of sentence for driving while under the influence of alcohol. The Vehicle Code, Act

[ 254 Pa. Super. Page 236]

    of Apr. 29, 1959, P.L. 58 § 1037, eff. July 14, 1974, 75 P.S. § 1307 (currently, Act of June 17, 1976, P.L. 162, Act No. 81 as amended, eff. July 1, 1977, 75 Pa.C.S.A. § 3731).

On October 26, 1974, at about 10:56 p. m., appellant was involved in a two-car collision. He was pinned behind the steering wheel of his car for 45 minutes, during which time he appeared unconscious to an investigating police officer, but received treatment from an ambulance crew. After being freed from his car, appellant was taken to a hospital. There, at about 12:45 a. m. he was questioned by two officers, who also testified that he was passing in and out of consciousness. Appellant told the officers, "Show me the intersection and I'll show you who had the right of way." Both officers smelled alcohol on appellant. They asked appellant to submit to a blood test, telling him that the purpose was to determine the alcoholic content, and appellant replied, "Yes, you have me anyway." While a consent form was being prepared, appellant passed out again and could not be aroused. A doctor took blood for the test (which later showed appellant to have been legally intoxicated), but appellant did not sign the consent form, nor did he have any knowledge of its content. He was given no Miranda -type warnings, nor was he told he had the right to refuse to submit to the blood test. Some days later appellant refused to sign the consent form. Before trial, appellant filed a motion to suppress the results of the blood test. The motion was denied, and that is the basis of this appeal.

The provisions for the taking of a breathalyzer or blood test are set out in The Vehicle Code, supra, § 624.1 (§ 1547 of the current Code, supra), and read as follows:

(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 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

[ 254 Pa. Super. Page 237]

    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 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.

(f) If for any reason a person is physically unable to supply enough breath to complete a chemical test a physician or a technician acting under his direction may withdraw blood for the purpose of determining the alcoholic content therein. Consent is hereby given by such persons. The chemical analysis of the blood taken under these circumstances shall be admissible in evidence.

(h) The refusal to submit to a chemical test may be admitted into evidence as a factor to be considered in determining innocence or guilt.

A substantial gloss has been put on these provisions. In Commonwealth v. Wolpert, 225 Pa. Super. 361, 308 A.2d 120 (1973), we held that the right to refuse a breathalyzer or blood test (with the consequences of possible license suspension and admission of the refusal at trial as a fact to be considered in determining guilt or innocence) must be extended to all persons suspected of drunken driving, not just to those who have formally been arrested, as the statute on its face might appear to imply. In Commonwealth v. Quarles, 229 Pa. Super. 363, 324 A.2d 452 ...


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