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CHARLES ZUBIK v. COMMONWEALTH PENNSYLVANIA (11/27/85)

decided: November 27, 1985.

CHARLES ZUBIK, JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. Charles Zubik, Jr., No. SA 797 of 1982.

COUNSEL

Kim William Riester, for appellant.

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

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 93 Pa. Commw. Page 222]

Charles Zubik, Jr. (appellant) appeals from an order of the Court of Common Pleas of Allegheny County*fn1 dismissing his appeal from the Department of

[ 93 Pa. Commw. Page 223]

Transportation's (DOT) six-month suspension of his motor vehicle operator's license for refusal to submit to a breathalyzer test as required under Section 1547(b)(1) of the Vehicle Code.*fn2

DOT's burden of proof at the Common Pleas Court hearing was to show that the appellant (1) was placed under arrest for driving while under the influence of alcohol, and the arresting officer had reasonable grounds to believe the driver was intoxicated; (2) was asked to submit to a breathalyzer test; (3) refused to do so; and (4) was warned that his license would be suspended if he refused to take the test. Everhart v. Commonwealth, 54 Pa. Commonwealth Ct. 22, 26, 420 A.2d 13, 15 (1980). Accord, Department of Transportation, Bureau of Traffic Safety v. Ferrara, 89 Pa. Commonwealth Ct. 549, 552, 493 A.2d 154, 156 (1985).

Appellant argues first that the arresting officer failed to warn him that his operating privilege would be suspended or revoked as required by 75 Pa. C.S. § 1547(b)(2). Counsel for appellant contends that the disjunctive wording, e.g. suspended or revoked," of the statute prior to the 1982 amendments required the arresting officer to issue an "either . . . or" warning to appellant that his license would either be suspended or revoked upon refusal to take a breathalyzer test.*fn3

The arresting officer testified at the hearing below that appellant's operating privileges "would be suspended if he doesn't [sic] take the test." This

[ 93 Pa. Commw. Page 224]

    was a sufficient warning to satisfy 75 Pa. C.S. § 1547(b)(2) as it was written and judicially construed in 1982. So long as the idea of certainty of loss of license was communicated to appellant, the discussion of putative outcomes such as suspension or revocation is irrelevant to the satisfaction of the statute. See Everhart; In Re Harper, 57 Pa. Commonwealth ...


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