Appeal from the Order of the Court of Common Pleas of Erie County in case of Commonwealth of Pennsylvania v. John R. Wroblewski, No. 5971-A 1980, Civil Division.
Harold H. Cramer, Assistant Attorney General, with him Robert C. Bell, Assistant Counsel, Ward T. Williams, Chief Counsel, Transportation, Jay C. Waldman, General Counsel, and Harvey Bartle, III, Acting Attorney General, for appellant.
John R. Wroblewski, appellee, for himself.
Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer.
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The Department of Transportation, Bureau of Traffic Safety (DOT) has appealed from a decision of the Court of Common Pleas of Erie County which sustained the appeal of John R. Wroblewski (appellee) from a suspension of his operating privilege for refusal to take a breathalyzer test. We reverse.
On November 20, 1979, the appellee was involved in a traffic accident. Police Officer Miller, who investigated the accident, arrested the appellee at the scene for driving under the influence of alcohol or a controlled substance, Section 3731 of the Vehicle Code, 75 Pa. S.C. § 3731, and for failure to stop at a flashing red signal, Section 3114(a)(1) of the Vehicle Code, 75 Pa. C.S. § 3114(a)(1). The appellee was taken to the police station where he was asked to take a breathalyzer test. He refused, and his operating privilege was suspended, pursuant to Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547.
Before the court below, the appellee successfully argued that DOT was somehow "estopped" from asserting that he had refused to take the test because Officer Miller had agreed to delay administering the
[ 65 Pa. Commw. Page 335]
test to allow the appellee's attorney to be present. The evidence reveals that Officer Miller did delay the test for some 20 minutes, but the appellee's attorney did not arrive within that time and so Officer Miller asked the appellee to take the test without his attorney present. The appellee insisted on waiting for his attorney, whereupon Officer Miller noted on the test results form that the appellee had refused to take the test. When the appellee's attorney arrived a few minutes later, the appellee allegedly changed his mind and agreed to take the test, but Officer Miller replied that it was too late, since more than one hour had elapsed since the time of arrest, and that the test would therefore be invalid.*fn1
This court has repeatedly followed the rule that anything substantially less than an unqualified, unequivocal assent to take a breathalyzer test constitutes a refusal. Weitzel Appeal, 41 Pa. Commonwealth Ct. 235, 400 A.2d 646 (1979). A licensee "has no right to have an attorney present . . ., nor does he have a right, either constitutional or statutory, to be able to call an attorney before deciding whether or not to take the test." Id. at 236-37, 400 A.2d at 646. Therefore, Officer Miller's agreement to wait for the appellee's attorney was strictly a matter of grace which could be withdrawn at any time without prejudice to the appellee. Estoppel cannot be asserted by one who has not been prejudiced. See Hauptman v. Department of Transportation, 59 Pa. Commonwealth Ct. 277, 429 A.2d 1207 (1981).
We have also held that a refusal to take a breathalyzer test is not vitiated by a ...