Appeal from the Order of the Court of Common Pleas of Franklin County in the case of Commonwealth of Pennsylvania v. Randal William Emory, Misc. Docket Volume Y, Page 313.
Lawrence R. Wieder, Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Jill A. McCracken, for appellee.
Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.
[ 91 Pa. Commw. Page 581]
The Department of Transportation (DOT) appeals here from a decision of the Court of Common Pleas of Franklin County which ordered the reinstatement of Randal W. Emory's (Appellee) operator's license.*fn1
The trial court found*fn2 that Appellee was driving a vehicle which was involved in a one-car accident. Appellee lost consciousness and was taken to a hospital emergency room where a sample of his blood was
[ 91 Pa. Commw. Page 582]
taken. After he regained consciousness Appellee was belligerent and difficult. Subsequently, he was arrested by a police officer for driving under the influence.*fn3 The officer requested that Appellee submit to a blood test. Appellee refused this request.
DOT frames the issue before us as whether a driver may refuse a police officer's request for a blood sample on the ground that hospital personnel had previously taken a blood sample pursuant to Section 3755 of the Vehicle Code (Code).*fn4 At the time the instant case arose, Section 3755 provided in pertinent part:
(a) General rule. -- If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3731 [of the Code, as amended, 75 Pa. C.S. § 3731] (relating to driving under influence of alcohol or controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for this purpose. This section shall be applicable to all injured occupants
[ 91 Pa. Commw. Page 583]
who were capable of motor vehicle operation if the operator or person in actual physical control of the movement of the motor vehicle cannot be determined. Test results shall be released upon request of the person tested, his ...