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ARTHUR ALOYSIUS SMITH v. COMMONWEALTH PENNSYLVANIA (02/02/84)

decided: February 2, 1984.

ARTHUR ALOYSIUS SMITH, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. Arthur Aloysius Smith, No. 81-9830.

COUNSEL

Albert C. Oehrle, Wilson, Oehrle, Drayer & Furber, for appellant.

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

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

Author: Rogers

[ 80 Pa. Commw. Page 118]

This is an appeal of a holder of a motor vehicle operator's license from an order of the Court of Common Pleas of Montgomery County affirming the suspension of his driver's license pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b), for his refusal to submit to a chemical analysis of his breath or his blood for the purpose of determining his blood alcohol content.

[ 80 Pa. Commw. Page 119]

On March 28, 1981, the appellant was involved in a serious automobile accident. He was removed from his car in an unconscious state. After regaining consciousness and refusing further medical treatment, he was arrested by a police officer and charged with driving under the influence of intoxicating liquor. The police officer advised the appellant of his constitutional rights and asked him to submit to a blood test. The appellant refused. The officer then advised the appellant that his refusal to submit to a test would result in a six month suspension of his operator's license. The appellant again refused.

Because of the seriousness of the accident and the possibility that criminal charges more serious than driving under the influence of drink might be made against the appellant, the police officer obtained a search warrant empowering the authorities to perform a blood test without the appellant's consent. The appellant was taken to a hospital where, prior to the taking of a blood sample, the appellant executed a form of consent presented to him by an employee of the hospital.

The analysis of the sample taken from the appellant showed the amount of alcohol by weight in his blood to be .20%. The appellant later pled guilty to two counts of homicide by motor vehicle. The charge of driving while under the influence of alcohol was nolle prossed.

The appellant was later notified by the Department of Transportation that his motor vehicle operator's license was to be suspended for a period of six months for his refusal to submit to the tests described in Section 1547 of the Vehicle Code. The appellant appealed this action to the Court of Common Pleas of Montgomery County which, after a hearing, upheld the suspension. The appellant on appeal claims that

[ 80 Pa. Commw. Page 120]

    he in fact consented to the blood test by signing the ...


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