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COMMONWEALTH PENNSYLVANIA v. JOHN WILLIAM KELLEY (01/08/79)

decided: January 8, 1979.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
JOHN WILLIAM KELLEY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. John William Kelley, No. SA 563 of 1975.

COUNSEL

Harold H. Cramer, Assistant Attorney General, with him Regis J. McCoy, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Howard F. Messer, for appellant.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 39 Pa. Commw. Page 567]

This is an appeal by the Department of Transportation, Bureau of Traffic Safety (Bureau), from the order of the Court of Common Pleas of Allegheny County sustaining the appeal of John William Kelley (Kelley) and thereby reversing the Bureau's suspension of his motor vehicle operator's license pursuant

[ 39 Pa. Commw. Page 568]

    to Section 624.1 of The Vehicle Code,*fn1 for refusing to submit to a breathalyzer test.*fn2

We note initially that our scope of review of a lower court's reversal of a license suspension pursuant to Section 624.1 is limited to whether its findings are supported by competent evidence, errors of law were committed, or the decision constituted a manifest abuse of discretion. Department of Transportation, Bureau of Traffic Safety v. Shultz, 25 Pa. Commonwealth Ct. 598, 360 A.2d 754 (1976).

In the instant case, the court below held that, in a license suspension proceeding, an officer must have probable cause to make an arrest before transporting a person to a police station for a breathalyzer test. Since it concluded that there was insufficient evidence to indicate a valid arrest, Kelley's appeal was sustained. This was incorrect. As stated in Department of Transportation, Bureau of Traffic Safety v. Barrett, 22 Pa. Commonwealth Ct. 559, 561, 349 A.2d 798, 799 (1976), "[c]ertainly, there can be no doubt in the law today that the propriety of the request for a chemical test is not dependent on the legality of the arrest." See also Glass v. Bureau of Traffic Safety, 460 Pa. 362, 333 A.2d 768 (1975).

Consequently, our only inquiry is whether the Bureau's suspension of Kelley's operating privileges was proper. As a condition precedent to the suspension of a motor vehicle operator's license pursuant to Section 624.1, the arresting officer must have had reasonable

[ 39 Pa. Commw. Page 569]

    grounds to believe that Kelley had been driving while under the influence of intoxicating liquor. Department of Transportation, Bureau of Traffic Safety v. Shultz, supra. In this regard, we repeat what was so ably stated by Judge Mencer in Department of Transportation, Bureau of Traffic ...


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