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COMMONWEALTH PENNSYLVANIA v. MARVIN E. CHARLES (10/05/79)

filed: October 5, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
MARVIN E. CHARLES, JR., APPELLANT



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

COUNSEL

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Evidence of refusal to take such tests was admissible under section 624.1(h) of the now-repealed Vehicle Code of 1959 (1959 Code).*fn3 The 1959 Code also provided: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P.S. § 624.1(a) (repealed) (emphasis added).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


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