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ORRIN EVERHART v. COMMONWEALTH PENNSYLVANIA (09/18/80)

decided: September 18, 1980.

ORRIN EVERHART, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. Orrin R. Everhart, No. 79-1299.

COUNSEL

Ralph D. Friedman, Friedman and Friedman, for appellant.

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

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 54 Pa. Commw. Page 23]

Orrin R. Everhart (petitioner) appeals here from an order of the Montgomery County Court of Common Pleas upholding suspension of his driving privileges by the Department of Transportation (DOT) under Section 1547(b)(1) of the Motor Vehicle Code (Vehicle Code), 75 Pa. C.S. § 1547(b)(1). The suspension was based on his refusal to take a breathalyzer test

[ 54 Pa. Commw. Page 24]

    at the time of his arrest for operating a motor vehicle while under the influence of alcohol in violation of Section 3731(a)(1) of the Vehicle Code, 75 Pa. C.S. § 3731(a)(1).

The petitioner testified that he was asked by the arresting officer during booking if he wanted to take the breathalyzer test, and that he responded, "Do I have to?" He said that the officer replied that, if he did not, he "could" lose his license.

The police officer testified that he had asked the petitioner while in the patrol vehicle if he would consent to a breathalyzer test and that the petitioner had refused. At the police station, he again asked the petitioner if he would take the test, and after unsuccessfully attempting to contact his attorney, the petitioner had again refused. While stating that he had told the petitioner that he "would possibly" or "could" lose his license, the officer also testified that he had read the implied consent law to the petitioner.

Under the implied consent law, Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547, any person who operates a motor vehicle within the Commonwealth is deemed to have given consent to a chemical breath test to determine the alcoholic content of his blood if a police officer has reasonable grounds to believe that the person was driving while under the influence of alcohol.

Section 1547(b)(2) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(2) provides that: "It shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended or revoked upon refusal to submit to a chemical test." (Emphasis added.) The petitioner argues that by using the words "could" or "would possibly" rather than "will", ...


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