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APPEAL FROM SUSPENSION OPERATOR'S LICENSE DONALD BUDD. DONALD BUDD (03/15/82)

decided: March 15, 1982.

IN RE: APPEAL FROM SUSPENSION OF OPERATOR'S LICENSE OF DONALD BUDD. DONALD BUDD, APPELLANT


Appeal from the Order of the Court of Common Pleas of Washington County in case of In Re: Appeal from Suspension of Operator's License of Donald Budd, No. 254 November Term, 1979.

COUNSEL

C. Jerome Moschetta, for appellant.

Harold 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 MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Palladino did not participate in the decision in this case.

Author: Williams

[ 65 Pa. Commw. Page 315]

Appellant, Donald Budd, appeals from an order of the Court of Common Pleas of Washington County. The lower court denied appellant's petition for reconsideration

[ 65 Pa. Commw. Page 316]

    and affirmed its earlier order sustaining the suspension of appellant's driver's license.

On or about October 14, 1979, appellant, while driving his car on East Beau Street in East Washington, was apprehended by a police officer for erratic driving. Upon approaching appellant's vehicle, the officer noticed that appellant appeared to be inebriated. The officer detected a strong odor of alcohol emanating from appellant and observed that appellant was unable to walk or stand without assistance. At that time appellant was placed under arrest. He was then taken to the Washington Police Station where he was asked to submit to a breathalyzer test in order to determine the level of alcoholic content in his blood. Appellant was informed that a refusal to take the test would result in the suspension of his operator's privileges.

Appellant verbally consented to proceed with the breathalyzer test, whereupon he received instructions on the method for performing such a test. The test was administered to appellant several times; each time the sound of air escaping from the sides of appellant's mouth was heard. Since appellant failed to tighten his lips around the instrument's mouthpiece, no reading could be obtained from the breathalyzer machine. Thus, appellant never successfully completed the test.

The Commonwealth Bureau of Traffic Safety, Department of Transportation (Department), deemed appellant's failure to produce a reading on the breathalyzer a refusal to take the test. The Department, therefore, suspended appellant's operating privileges for a period of six (6) months. Appellant appealed that determination and, after a de novo hearing, the Court of Common Pleas of Washington County entered an order dismissing the appeal and affirming the Department's suspension of appellant's driver's license. Following the lower court's decision, appellant filed a Petition for Reconsideration. Appellant's

[ 65 Pa. Commw. Page 317]

Petition was based on his allegations that the breathalyzer equipment was not in working condition; that the breathalyzer equipment was not proven to be the type approved by the Department under the Motor Vehicle Code; and that he had made a good faith attempt to take the test, but was physically unable to do so. The lower court heard argument on appellant's Petition; and in April, 1980, it ...


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