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RAYMOND WYSOCKI v. COMMONWEALTH PENNSYLVANIA (08/09/85)

decided: August 9, 1985.

RAYMOND WYSOCKI, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Northampton County in the case of Commonwealth of Pennsylvania v. Raymond Wysocki, No. 1983-C-7720.

COUNSEL

Harold J. DeWalt, with him, Gary Neil Asteak, for appellant.

Harold H. Cramer, Assistant Counsel, with him, Michael R. Deckman, Deputy Chief Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Concurring Opinion by Judge MacPhail.

Author: Kalish

[ 91 Pa. Commw. Page 43]

Raymond Wysocki appeals to this court from the order of the Court of Common Pleas of Northampton County upholding the suspension of his operating privileges pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b), for refusing to submit to a breathalyzer test. We affirm.

The trial court found that Pennsylvania State Troopers were conducting a traffic check by stopping vehicles going in both directions on a road; that when the appellant's vehicle was stopped, a trooper noticed the odor of an alcoholic beverage on the appellant's breath; that he fumbled in producing his

[ 91 Pa. Commw. Page 44]

    driver's license; that on the spot he was asked to walk a straight line, heel to toe, and to stand on one foot for thirty seconds. The appellant failed both tests. The trial court found further that all cars going in both directions on the highway were methodically stopped in the traffic check, until all troopers became occupied and, thereafter, all cars not already stopped were allowed to pass undisturbed. The appellant was then placed under arrest and, after being given proper explanations of the law, he refused to take the breathalyzer test.

Our scope of review is limited to determining whether the record supports by substantial evidence the factual findings of the court below, whether there was an error of law and whether any constitutional rights were violated. Bruno v. Department of Transportation, Bureau of Traffic Safety, 54 Pa. Commonwealth Ct. 353, 422 A.2d 217 (1980). Our cases have consistently held that a traffic stop is not an arrest, nor is a person so stopped in "custody." It is not an arrest in the strict sense and when the driver refuses to submit to the breathalyzer test, the driver's license may be suspended. Glass v. Department of Transportation, Bureau of Traffic Safety, 460 Pa. 362, 333 A.2d 768 (1975); Gresh v. Department of Transportation, Bureau of Traffic Safety, 76 Pa. Commonwealth Ct. 483, 464 A.2d 619 (1983); Corry v. Commonwealth, 59 Pa. Commonwealth Ct. 324, 429 A.2d (1981).

In the Glass case, the Pennsylvania Supreme Court was interpreting the word "arrest" as found in section 624.1 of the Vehicle Code,*fn1 which is now section 1547(b) of the Vehicle Code. The court concluded

[ 91 Pa. Commw. Page 45]

    that the word arrest, as used in section 624.1, did not mean a "lawful arrest" as that term is used in our criminal case law and statutes, and that the legislature was referring merely to the physical act of arrest. This is why the Supreme Court said ...


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