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RICHARD M. ABATE v. COMMONWEALTH PENNSYLVANIA (07/18/80)

decided: July 18, 1980.

RICHARD M. ABATE, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Commonwealth of Pennsylvania, Department of Transportation v. Richard M. Abate, No. 2939 of 1979.

COUNSEL

Basil G. Russin, with him Joseph F. Sklarosky, for appellant.

Harold H. Cramer, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, and Harvey Bartel III, Acting Attorney General, for appellee.

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

Author: Craig

[ 53 Pa. Commw. Page 105]

Richard M. Abate seeks review of the order of the Court of Common Pleas of Luzerne County dismissing his appeal from the Secretary of Transportation's suspension of his driver's license under Section 1547 of the Vehicle Code, 75 Pa. C.S. ยง 1547, on the ground that Abate refused to submit to a breathalyzer test.

Abate contends that the lower court erred in concluding that he had in fact refused to submit to the breathalyzer. We agree, because the record does not support that conclusion, as it must for us to affirm. McMahon v. Commonwealth, 39 Pa. Commonwealth Ct. 260, 263, 395 A.2d 318, 320 (1978).

[ 53 Pa. Commw. Page 106]

Abate was stopped by officers of the Plymouth Township and Plymouth Borough police departments at 2:40 a.m. on February 18, 1979. At the scene, after arresting Abate for driving under the influence, Officer Jesso of the borough police requested that he submit to a breathalyzer test; Abate agreed to do so. Abate was then taken to the borough station, where a scuffle occurred while Officer Jesso was searching him.*fn1 After Abate was subdued by another policeman, Officer Jesso said "We're going to the barracks now," to which Abate replied, "No, I'm not." Officer Jesso stated that due to Abate's "coherence",*fn2 he was not processed at that time, but was placed in a cell until a morning arraignment before a magistrate.

The record unequivocally establishes that Abate consented to the test when asked at the scene of his arrest. He further testified, without contradiction, that he had no knowledge as to the location of the testing apparatus, that the subject of the test was never brought up aside from the initial request at the time of his arrest, and that he was at all times willing and able to undergo the test.

Our scrutiny of the record produces nothing to support the lower court's conclusion that Abate "was informed that he would be taken to the Pennsylvania State Police Barracks for the breathalyzer test " (emphasis ours); the record reveals the only comment regarding the barracks to be that already quoted from which the purpose of the move was notably absent.*fn3

[ 53 Pa. Commw. Page 107]

A somewhat similar situation was before us in Department of Transportation, Bureau of Traffic Safety v. Guarino, 19 Pa. Commonwealth Ct. 104, 339 A.2d 861 (1975). There the arrested driver was requested, at the scene and again before a magistrate, to submit to the test; the driver remained silent at both junctures. As in this case, the test apparatus was located at a state police barracks a short distance away. We there rejected the argument that, in light of those events, transporting Guarino to the site of the ...


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