Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Michael R. Doherty, No. SA 1530 of 1981.
Robert C. Bell, Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Paul D. Boas, Berlin, Boas & Isaacson, for appellee.
Judges MacPhail, Barry and Palladino, sitting as a panel of three. Opinion by Judge Barry. Judge Williams, Jr., did not participate in the decision in this case. Judge Palladino dissents.
[ 88 Pa. Commw. Page 483]
This appeal results from an order of the Allegheny County Court of Common Pleas which overturned the six month suspension of Michael Doherty's operator's license imposed by the Department of Transportation (DOT) for his refusal to submit to a breathalyzer test.
A City of Pittsburgh police officer noticed Mr. Doherty parked in his car beneath the McArdle Roadway Bridge. The car had been damaged quite extensively apparently as the result of an accident. The officer stated he detected the odor of alcohol on Mr. Doherty's breath and he was charged with driving under the influence of alcohol.
Mr. Doherty was transported to a hospital because of some injuries from the accident. He voluntarily submitted to a test administered by the treating physician to determine the alcoholic content of his blood. Following treatment, Mr. Doherty was taken to the police station for a breathalyzer test and advised of the consequences of a refusal. When asked to submit, he replied, "May I call my lawyer?" whereupon the testing officer recorded a refusal*fn1 which was certified to DOT.*fn2
As a result, DOT suspended Mr. Doherty's driver's license for six months pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. § 1547. His appeal
[ 88 Pa. Commw. Page 484]
before the trial court was sustained because Mr. Doherty had already voluntarily submitted to a blood test of which the police had knowledge and, therefore, the trial court found that his refusal was justified. This appeal followed.
DOT posits the view that Mr. Doherty's voluntary submission to the blood test did not justify his refusal to take the breathalyzer test because the arresting officer had no knowledge of the blood test or its purpose and Mr. Doherty was physically capable of performing the breathalyzer test. DOT, moreover, contends that it has established that Mr. Doherty had refused the breathalyzer test and that therefore the license suspension was proper.
In response, Mr. Doherty argues that he voluntarily submitted to a blood test and that, under Section 1547 of the Code, he was required only to submit to one test, either blood or breathalyzer. Mr. Doherty, therefore, contends that he had already complied with the Code when he allegedly refused the breathalyzer test. Alternatively, Mr. Doherty asserts that he did not refuse the ...