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COMMONWEALTH PENNSYLVANIA v. ROGER P. DOURTE (05/17/82)

decided: May 17, 1982.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
ROGER P. DOURTE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lancaster County in case of Commonwealth of Pennsylvania v. Roger P. Dourte, Trust Book 45, Page 402.

COUNSEL

Harold H. Cramer, with him Ward T. Williams, Chief Counsel, Transportation, for appellant.

John F. Pyfer, Jr., Allison & Pyfer, for appellee.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers. Judge Mencer did not participate in the decision in this case.

Author: Rogers

[ 66 Pa. Commw. Page 512]

This case has to do with chemical tests of the breath or blood of operators of motor vehicles for the purpose of determining the alcoholic content of their blood.

The appellee, Roger P. Dourte, was involved in a single vehicle accident in Lancaster County. A police officer asked him at the scene whether he would submit to a test of his breath and Dourte agreed. No breath test was ever taken because Dourte, who was injured about the face, was taken to the hospital. The police officer went to the hospital an hour or so later where he told Dourte that he was under arrest for driving under the influence of alcohol. He then asked Dourte to submit to a chemical test of his blood telling him, as required by law, that a refusal would result in suspension or revocation of his operator's privilege. Dourte refused to submit to the blood test.*fn1 The Commonwealth by the Department of Transportation, Bureau of Traffic Safety, suspended Dourte's operating privilege for six months. Dourte appealed and the Court of Common Pleas, which found that Dourte was

[ 66 Pa. Commw. Page 513]

    able to complete a breath test at the time he was requested to submit to the blood test, reversed the Commonwealth's action. The Commonwealth has appealed, contending that the Vehicle Code effective on the date of the occurrence, being that enacted June 17, 1976, and appearing at 75 Pa. C.S. §§ 101-9301, empowered it to suspend or revoke Dourte's privilege under the circumstances of this case.

The provisions of the just mentioned 1976 Vehicle Code pertinent are:

§ 1547. Chemical test to determine amount of alcohol.

(a) General rule. -- Any person who operates a motor vehicle in this Commonwealth shall be deemed to have given consent to a chemical test of breath or blood for the purpose of determining the alcoholic content of blood if a police officer shall have reasonable grounds to believe the person to ...


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