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ALVIN HERRING v. COMMONWEALTH PENNSYLVANIA (04/18/80)

decided: April 18, 1980.

ALVIN HERRING, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Fayette County in case of In Re: Appeal of Alvin Herring from the Suspension of Operator's License by Secretary of Transportation, No. 462 of 1978 G.D.

COUNSEL

Simon B. John, of John & John, for appellant.

Harold H. Cramer, with him Michael R. Deckman and Ward T. Williams, Assistant Attorneys General, and Edward G. Biester, Jr., Attorney General, for appellee.

Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. President Judge Bowman did not participate in the decision in this case.

Author: Williams

[ 50 Pa. Commw. Page 609]

This is an appeal from an order of the Court of Common Pleas of Fayette County, Pennsylvania, affirming

[ 50 Pa. Commw. Page 610]

    the suspension of appellant Alvin Herring's driver's license for his refusal to submit to a breathalyzer test.

On February 23, 1978, Alvin Herring drove his car into other cars parked on a street in Uniontown, Fayette County. When police Officer Earl Wright approached the scene, he detected the smell of alcohol on Herring's breath and observed that Herring spoke in a slurred manner. Officer Wright testified that he arrested the appellant at that time for driving under the influence of alcohol, and that his reason for doing so was because of the smell of alcohol, the slurred speech, and because the appellant had driven into parked cars when the roads were dry.

Because the appellant appeared to be physically injured from the accident, Officer Wright decided to take him to Uniontown Hospital, despite the appellant's statement that he did not wish to go. Officer Wright further testified that Herring had to be helped in walking from his car to the police car, and from the police car to the hospital.

Enroute to the hospital, Officer Wright asked the appellant if he would take a breathalyzer test, but the appellant refused. About 45 minutes after they arrived at the hospital the police officer again asked Herring to take a breathalyzer test, and again the appellant refused. At that point the Officer advised the appellant that he would lose his license for refusing to take the test, but still got a refusal. When the Officer started to leave the hospital, the appellant asked the Officer if he was not going to "talk" him "into taking" the test.

[ 50 Pa. Commw. Page 611]

The testimony of Officer Wright shows that he had Herring under his custody and control, from the time the Officer first approached him at the accident scene and until at least the time they arrived at the hospital. That custody and control constituted an arrest. Commonwealth Page 611} v. Miles, 8 Pa. Commonwealth Ct. 544, 304 A.2d 704 (1973). The fact of that original arrest of Herring was not ...


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