Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania v. Jeremiah Walthour, No. 4603 November Term, 1981.
Samuel F. Pepper, for appellant.
Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.
In Pratt v. Department of Transportation, 62 Pa. Commonwealth Ct. 55, 57, n. 1, 434 A.2d 918, 919, n. 1 (1981), we noted, but did not there have to decide, the question of whether or not extreme intoxication could be a lawful justification for a motorist's failure to submit to an alcohol test.
The present case now squarely presents that issue for decision. Here, appellant Walthour, arrested for driving while under the influence of alcoholic beverages, refused or failed to submit to a breathalyzer alcohol test when a police officer, with proper warnings, requested that he do so. Upon the evidence, Judge Gafni, in the Court of Common Pleas of Philadelphia County, was satisfied that Walthour's refusal to take the test "was not knowing or conscious by reason of his intoxication." However, Judge Gafni, concluding that lack of capacity to submit to a breathalyzer test by reason of voluntary intoxication could not constitute a defense to the statutory duty, upheld the operator's license suspension.
Where a motorist's voluntary intoxication has rendered the motorist incapable of submitting
to a breathalyzer test, does that condition excuse the motorist's failure to comply with his statutory duty to submit to the alcohol test?*fn1
The question itself points to the answer. Where a driver has consumed alcoholic beverages sufficient to make him mentally or physically incapable of assenting to, or participating in, the alcohol test, that failure obviously stems directly from the driver's voluntary decision to imbibe alcohol. The fact that the driver did not knowingly or consciously fail to take the test, at the juncture of the request, is not determinative; the prospective loss of mental and physical capacity was a foreseeable consequence when the driver undertook consumption of the intoxicant.
Here the motorist -- and no one else -- knowingly and consciously created his own inability to comply, just as definitely as if he had clapped his hand over his mouth as a barrier to taking the breathalyzer test when offered. See Brinkerhoff v. Department of Transportation, 59 Pa. Commonwealth Ct. 419, 430 A.2d 338 (1981) and Bureau of Traffic Safety v. Jones, 38 Pa. Commonwealth Ct. 400, 395 A.2d 592 (1978), two ...