Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Charles John Korchak, No. SA 761 of 1980.
Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Mary Ann Rapp Durkin, Martin, Durkin & Martin, for appellee.
Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.
[ 74 Pa. Commw. Page 466]
This is an appeal by the Department of Transportation, Bureau of Traffic Safety (Department), of an order of the Court of Common Pleas of Allegheny County which sustained the appeal of Charles John Korchak from the suspension of his license.
On June 7, 1980, Korchak was involved in a motor vehicle accident and was arrested for driving under the influence. He subsequently received notice that his operating privileges were to be suspended for six months for violation of Section 1547 of the Vehicle Code (Code).*fn1 His appeal to the court of common pleas resulted in the order appealed here.
Before the court of common pleas, a police officer testified that Korchak was advised of his constitutional rights, was informed of his obligation under the Code to take a breathalyzer test, and was informed that refusal to take the test would result in the automatic suspension of his license. The officer testified
[ 74 Pa. Commw. Page 467]
that Korchak was repeatedly asked to take the test and repeatedly refused. Korchak's testimony verified that he had been advised that refusal to submit to the breathalyzer test would result in the suspension of his license. He testified, however, that he did not refuse. He testified that he was at all times ready and willing to take the test, but it was never administered.
Korchak also testified that, at the police station, he was taken into a room where, apparently, the breathalyzer test was to be administered, and was there given his Miranda*fn2 warnings. In response to the Miranda warnings he indicated that he did wish to speak with his attorney before making a statement. Korchak testified that he was immediately thereafter taken from the room to a cell without being given or asked to take the breathalyzer test.
From this evidence, the trial court concluded that Korchak did not refuse to take the breathalyzer test. In colloquy explaining the reasons for the decision*fn3 the court summarized:
He's told to take the Breathalizer [sic] and read the Miranda rights, and he said, "I want my attorney." He has a right to have his attorney. Commonwealth cases ruled recently that the request for an attorney in response for a request for a Breathalizer [sic] test is a refusal and would be treated as such. In this case we have a ...