Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Scott W. Tillitt, No. SA 249 of 1978.
Harold H. Cramer, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for appellant.
Robert R. Graff, of Mohan & Graff, for appellee.
Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt. Judge DiSalle did not participate in the decision in this case. Dissenting Opinion by Judge Craig.
[ 49 Pa. Commw. Page 344]
The Bureau of Traffic Safety of the Department of Transportation seeks review of an order of the Court of Common Pleas of Allegheny County which sustained the license suspension appeal of Scott W. Tillitt (appellee).
[ 49 Pa. Commw. Page 345]
The appellee was arrested by the Bethel Park police for driving while under the influence of intoxicating liquor. He was brought to the police station and was requested to submit to a chemical breath analysis. What then transpired is disputed, but the court below found in favor of the appellee, and so we must accept his version as true. His testimony was as follows:
A. Right. They were filling out the report and then asked if I wanted to take the Breathelizer [sic]. I said, 'No.' Otherwise, I was nervous, confused. I had never been arrested before. So I said, 'No' originally right away. I didn't even think about it. Then I thought about it for a couple minutes. I asked the consequences for it. 'Well,' he says, 'if you don't take it you are probably going to lose your license for six months.' At that time I think I better take it, then I said, 'No,' then I said 'Yes,' then I said, 'No, forget it.'
Q. What was the end? Did you say yes or no?
A. I did say 'yes' at the end. At that time I asked if I could use the phone.
Q. Did any of the officers say anything to you at that time after you said your yes and no diatribe?
A. Yes. At that time they said, 'We're not here to play games.' So at that I called my dad and ...