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CLAUDE EDMUNDSON v. COMMONWEALTH PENNSYLVANIA (10/23/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 23, 1978.

CLAUDE EDMUNDSON, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Claude Edmundson, No. SA 1083 of 1976.

COUNSEL

Lester G. Nauhaus, for appellant.

Harold H. Cramer, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 38 Pa. Commw. Page 232]

The Commonwealth's Secretary of Transportation suspended appellant's motor vehicle operator's license for six months, pursuant to then applicable Section 624.1(a) of the Vehicle Code,*fn1 for refusal to take the breathalyzer test.

The Court of Common Pleas of Allegheny County, at No. S.A. 1083 of 1976, dismissed an appeal of that

[ 38 Pa. Commw. Page 233]

    suspension, and the present appeal followed. We affirm.

The lower court correctly found that appellant's conduct at the police station following his arrest on charges of operating a motor vehicle while intoxicated amounted to a refusal to submit to the test. Appellant's actions demonstrated something much less then unequivocal assent. See: Department of Transportation, Bureau of Highway Safety v. O'Rourke, 25 Pa. Commonwealth Ct. 580, 361 A.2d 497 (1976).

The sole issue raised here is whether the Commonwealth had the burden of proving that the test was administered by qualified personnel on approved equipment.

Qualified administration of the test is clearly not at issue in a refusal case. Commonwealth v. Heresko, 28 Pa. Commonwealth Ct. 508, 368 A.2d 1357 (1977); Boyle v. Department of Transportation, Bureau of Traffic Safety, 19 Pa. Commonwealth Ct. 22, 339 A.2d 834 (1975).

Order

And Now, this 23rd day of October, 1978, the order of the Court of Common Pleas of Allegheny County is hereby affirmed.

Disposition

Affirmed.


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