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filed: October 5, 1979.


No. 2266 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lycoming County, No. 77-11080.


Peter T. Campana, Williamsport, for appellant.

Robert F. Banks, First Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ. Price, J., files a concurring opinion.

Author: Lipez

[ 270 Pa. Super. Page 283]

Appellant was convicted of driving under the influence of alcohol.*fn1 At the trial, a state trooper testified for the Commonwealth, over objection, that appellant had refused to submit to blood and breathalyzer tests. We conclude that such evidence is inadmissible.*fn2

Evidence of refusal to take such tests was admissible under section 624.1(h) of the now-repealed Vehicle Code of 1959 (1959 Code).*fn3 The 1959 Code also provided:

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 . . . .

[ 270 Pa. Super. Page 28475]

P.S. § 624.1(a) (repealed) (emphasis added). The 1959 Code thus left the suspension of the operator's license of a driver who refused to take such tests within the discretion of the Secretary of Transportation. The 1959 Code did not require that a driver be informed of the possible consequences of a refusal. The Vehicle Code of 1976 (1976 Code)*fn4 not only did not re-enact section 624.1(h), but also makes mandatory the suspension or revocation for refusal to submit to intoxication tests.*fn5 The 1976 Code also requires the arresting officer to inform a driver suspected of intoxication that his license shall be suspended if he refuses to take the tests. 75 Pa.C.S. 1547(b)(2).

The effect of the concatenation of these changes has not been previously considered by any Pennsylvania appellate court. All prior cases on the admissibility of evidence of such a refusal dealt with the issue under the 1959 Code; the 1976 Code is so substantially different that these cases do not control our decision in this case.

We begin our analysis with the understanding that the Legislature acted intentionally in making the above combination of amendments. See 1 Pa.C.S. § 1921. The Statutory Construction Act of 1972*fn6 provides:

Whenever a statute reenacts a former statute, the provisions common to both statutes shall date from their first adoption. Such provisions only of the former statute as are omitted from the reenactment shall be deemed abrogated, and only the new or changed provisions shall be

[ 270 Pa. Super. Page 285]

    deemed to be the law from the effective date of the reenactment.

While the failure to re-enact, deemed abrogation of, section 624.1(h) of the 1959 Code may not by itself be sufficient foundation for a conclusion that the 1976 Code prohibits the introduction of evidence of refusal, we must consider this deletion in conjunction with the other changes. At the risk of repetition, the relevant provisions of the 1976 Code's implied consent section*fn7 may be summarized as follows:

1. There is a statutory right to refuse administration of chemical intoxication tests. See 75 Pa.C.S. § 1547(b)(1).

2. If such tests are refused, they may not be administered, but the operating privilege of a driver who refuses such tests shall be suspended or revoked for a certain period. Id.

3. The police officer who requests that such driver submit to chemical tests must inform the driver that operating privileges will be suspended or revoked if such tests are refused. 75 Pa.C.S. § 1547(b)(2).

The purpose of such provisions is to protect the public by providing an effective means of denying intoxicated drivers the use of public roads. Commonwealth v. Ebert, 31 Pa. Commw. 82, 375 A.2d 837 (1977).*fn8

The courts of our sister state of Washington have dealt with an identical group of legal requirements*fn9 in the following manner:

It is evident from these general principles that whichever choice defendant makes, the purpose of the implied consent law to remove an intoxicated driver from the

[ 270 Pa. Super. Page 286]

    highway will be advanced. For if he consents to the test, scientific and probative evidence is available with which to establish his guilt. But if he refuses with informed knowledge of the consequence, his license to drive will be revoked.

However, use of his exercise of this statutory right as some sort of admission of guilt of the criminal offense is basically inconsistent with the type of informed choice contemplated by the statute. Furthermore, it would be unfair to have the defendant believe that his right to refuse the test would have one consequence and then to allow the State to assert an additional consequence.

In other words, had the statute intended evidentiary use of the right of refusal, it is logical that the arresting officer would be required to inform him that his refusal could be used as evidence in a criminal proceeding as well as the consequential loss of the privilege to drive. Since the statute does not require such warning, we conclude that the legislation did not contemplate the additional consequence.

State v. Parker, 16 Wash.App. 632, 558 P.2d 1361, 1363 (1976). The Supreme Court of Alaska based a similar holding upon the same reasoning:

Analysis of the two [relevant] statutes reveals that (1) drivers impliedly consent to a test designed to determine the alcohol content of their blood: and (2) refusal to submit to such a test will trigger sanctions.

These sanctions . . . are as follows:

(1) Revocation or suspension of license or privilege for a period of three months; or

(2) For persons convicted of [Operating a Motor Vehicle While Intoxicated (OMVI)] within two years of the present arrest, suspension of license or privilege for one year.

Before such a refusal can serve as the basis for these sanctions, the arrested person must be warned that a refusal will result in the suspension, revocation or denial of his license. The warning required to be given does not

[ 270 Pa. Super. Page 287]

    advise the person that refusal will result . . . in an OMVI prosecution.

An intrinsic aid to statutory construction is found in the maxim expressio unius est exclusio alterius. The maxim establishes the inference that, where certain things are designated in a statute, "all omissions should be understood as exclusions." The maxim is one of longstanding application, and it is essentially an application of common sense and logic.

With respect to [the relevant statute] we find that the enumeration of certain sanctions, suspension or revocation of license, and the requirement that those sanctions be included in a warning preclude the imposition of additional consequences. The admissibility of evidence of the fact of refusal would constitute such an additional consequence.

We view the warning requirement as a protective device to assure an informed choice on the part of the motorist. It would be unfair to have the driver believe that refusal would have one consequence and then permit the state to assert an additional consequence.

Puller v. Municipality of Anchorage, 574 P.2d 1285 (Alaska 1978) (footnotes omitted).*fn10

We agree with and adopt the above reasoning,*fn11 and hold, therefore, that the Legislature intended, by enacting the above provisions of the 1976 Code, to exclude from criminal proceedings evidence that a driver refused to submit to chemical tests to determine whether he was intoxicated.

[ 270 Pa. Super. Page 288]

The Commonwealth asserts, in the instant appeal, that the defense retroactively "opened the door" to the prosecution's evidence of refusal when defense counsel asked appellant, on direct examination, whether he recalled refusing to take the breath test, and appellant answered, "well, I do and I don't; I mean, I was just so confused and mixed up that I really don't know what I was doing and why I was doing it." Commonwealth v. Stakley, 243 Pa. Super. 426, 365 A.2d 1298 (1976), relied upon by the Commonwealth, does not support this position. This court held in that case that defense counsel had, on cross-examination, "opened the door" to the Commonwealth's subsequent elicitation of certain testimony (on redirect examination). "[I]f a witness for one party testifie[d] on a matter inadmissible if introduced by the other party, the other party can subsequently introduce evidence on that subject." Commonwealth v. Stakley, supra, 243 Pa. Super. at 436, 365 A.2d at 1303 (Hoffman, J., dissenting) (emphasis added); McCormick, Evidence §§ 32 and 57 (2d ed. 1972).

The above question and answer absent the improper evidence of refusal would have been sufficient to allow the Commonwealth to cross-examine appellant as well as introduce evidence concerning his refusal, but that is not the situation obtaining in the instant case. The previous introduction of the improper evidence by the Commonwealth had unfairly placed the defense in the difficult position of having to deal with it in its case. Such inadmissible evidence presented by the Commonwealth, over defense objection, cannot later be "ratified" by evidence presented by the defendant. The Commonwealth will not be permitted to use the error of the court below, which it has induced, to force appellant to waive his objection to the erroneous ruling. To do so would work a hardship upon the party which had protested the error and "would give an unfair advantage to the party inducing it. This ought not to be permitted unless imperatively required by rules of practice or of law." Citizens' Gas Co. v. Whitney, 232 Pa. 592, 81 A. 804 (1911); see United States v. Konovsky, 202 F.2d 721, 727 (7th Cir. 1953);

[ 270 Pa. Super. Page 289]

Vehicle Code of 1976 convinces me that the failure to provide for the admissibility of evidence of refusal to take such tests was purely an oversight. If such conclusion is correct the Legislature, not the Courts, must make such a correction. Since carnage on our highways continues and much of it is attributable to the drinking driver, it is my opinion that the removal of this valuable evidentiary tool deals law enforcement a heavy blow.

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