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PHILIP HERBERT v. COMMONWEALTH PENNSYLVANIA (06/09/83)

decided: June 9, 1983.

PHILIP HERBERT, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Butler County in case of Commonwealth of Pennsylvania v. Philip J. Herbert, Misc. Dkt. No. 80-162, Book 42, Page 288.

COUNSEL

Martin J. O'Brien, for appellant.

Lawrence R. Wieder, Assistant Counsel, with him Harold H. Cramer, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Blatt, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 75 Pa. Commw. Page 29]

In this appeal, appellant Philip Herbert seeks reversal of an order of the Court of Common Pleas of Butler County upholding the suspension of appellant's motor vehicle operator's license by the Department of Transportation (Department). The Department suspended appellant's driver's license for refusal to comply with a police officer's request to submit to a breathalyzer test.

Shortly after midnight on July 19, 1980, appellant was involved in an automobile accident at the intersection of West Pearl Street and North Main Street in the City of Butler. Upon arrival at the scene of the accident, the investigating officers, Lieutenant Stirling and Patrolman Botsis, observed Mr. Herbert staggering about near his vehicle, detected a strong odor of alcohol on his breath, and noted that his speech was slurred. Based upon these observations, Patrolman Botsis arrested appellant for operating a motor vehicle

[ 75 Pa. Commw. Page 30]

    while under the influence of alcohol, and transported him to the Butler City police station where he was later released from custody.

On August 11, 1980, Mr. Herbert was notified by the Department that his operating privileges were being suspended for a period of six (6) months, pursuant to Section 1547(b)(1) of the Vehicle Code,*fn1 for refusal to submit to a breathalyzer test. From that suspension appellant appealed to the Court of Common Pleas of Butler County, which affirmed the suspension by order dated November 7, 1980. It is an appeal from that order which is now before this Court.

At the de novo hearing held before the court below, the testimony presented was conflicting with respect to the events which resulted in the suspension of appellant's driver's license by the Department. Patrolman Botsis testified, as did Lieutenant Stirling, that when they arrived at the scene Patrolman Botsis asked appellant if he was injured in any way. When Mr. Herbert replied that he was not, the patrolman asked him to take a breathalyzer test and also advised him that failure to consent to the test would result in the automatic suspension of his license. According to both officers, the appellant, in response, stated that he would not submit to the test. In addition, the patrolman testified that he also requested appellant to take the test and apprised him of the consequences of a refusal en route to the police station. Once again, the appellant withheld his consent, and at that point,

[ 75 Pa. Commw. Page 31]

    stated that he wished to consult with counsel.*fn2 Because Mr. Herbert twice refused to comply with his requests, Patrolman Botsis did not administer ...


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