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COMMONWEALTH PENNSYLVANIA v. BRADLEY A. FARNER (07/22/85)

decided: July 22, 1985.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
BRADLEY A. FARNER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of Bradley A. Farner v. Department of Transportation, Bureau of Traffic Safety, No. 566 Civil, 1984.

COUNSEL

Lawrence R. Wieder, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

P. Richard Wagner, for appellee.

Judges Craig and Doyle and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 90 Pa. Commw. Page 202]

This appeal by the Pennsylvania Department of Transportation, Bureau of Traffic Safety (DOT), from a decision of the Court of Common Pleas of Cumberland County which reversed a vehicle operator's license suspension imposed for refusal to take a chemical test for alcohol, presents a legal question of statutory interpretation. The question is one of first impression because it involves the meaning and effect of the 1982 amendment to the Vehicle Code which now applies the chemical test duty to one who "drives, operates or is in actual physical control of the movement of a motor vehicle," while the original 1976 version of the same section applied the duty to one who "operates" or has been "driving" a motor vehicle. 75 Pa. C.S. § 1547(a), as originally enacted by the Act of June 17, 1976, P.L. 162, § 1, and as amended by the Act of December 15, 1982, P.L. 1268, § 5.

Based upon the undisputed facts found by the trial judge, the specific question in this case is:

Where a person behind the wheel of a pickup truck, parked in a traffic lane twenty-eight

[ 90 Pa. Commw. Page 203]

    inches from the curb, has his hands on the steering wheel, starts the engine running and actuates the brake lights, but leaves the transmission in "Park" and does not cause the vehicle or its driving wheels to move, was that person driving, operating or "in actual physical control of the movement" of the motor vehicle?

The pertinent terms of the section, as amended in 1982 and therefore effective with respect to the 1984 events in this case, read as follows:

(a) General rule. -- Any person who drives, operates or is in actual physical control of the movement of a motor vehicle. . . shall be deemed to have given consent to one or more chemical tests . . . for the purpose of determining the alcoholic content of blood . . . if a police officer has reasonable grounds to believe the person to have ...


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