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THOMAS P. SMOLICK v. COMMONWEALTH PENNSYLVANIA (06/25/81)

decided: June 25, 1981.

THOMAS P. SMOLICK, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Commonwealth of Pennsylvania v. Thomas P. Smolick, No. 79-C-4051.

COUNSEL

Nicholas Noel, III, with him George A. Hahalis, for appellant.

Harold H. Cramer, Assistant Counsel, with him Robert C. Bell, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Mencer, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 60 Pa. Commw. Page 180]

Thomas P. Smolick (appellant) appeals from an Order of the Court of Common Pleas of Lehigh County which affirmed the suspension of appellant's operator's

[ 60 Pa. Commw. Page 181]

    license ordered by the Director of the Bureau of Traffic Safety, Department of Transportation pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. § 1547.

Appellant was arrested by an Allentown police officer on November 25, 1979 for driving under the influence of alcohol in violation of Section 3731 of the Code, 75 Pa. C.S. § 3731. He was asked to submit to a breathalyzer test. He consented initially but then refused to do so except upon the condition that the police department indicate in a written statement that appellant had done his drinking at home. When the officers refused to put the requested statement in writing, appellant refused to take the test.

Appellant's principal argument on appeal is that the words of the officers here involved merely conveyed the message that his license might be in jeopardy. As such, he argues, the words of the officers are violative of the specific provisions of Section 1547 of the Code, 75 Pa. C.S. § 1547(b)(2) which provide: "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."

At this point we state from the arresting officer's testimony:

I advised him that he had the right to refuse to take the test, but that if he refused the State could -- would and could -- could and would remove his license for six months on a refusal. . . .

I took him to Sergeant Kerrigan who is qualified to give the breathalyzer test, and that's when he ...


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