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ROBERT A. FORTE v. COMMONWEALTH PENNSYLVANIA (01/15/86)

decided: January 15, 1986.

ROBERT A. FORTE, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth of Pennsylvania v. Robert A. Forte, No. 339 June Term, 1983.

COUNSEL

Steven R. Geroff, for appellant.

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

Judges Doyle and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 94 Pa. Commw. Page 195]

This is an appeal by Robert A. Forte (Licensee) from an order of the Court of Common Pleas of Philadelphia County sustaining the action of the Pennsylvania Department of Transportation (DOT) which revoked Licensee's operating privileges for one year for refusal to submit to a breathalyzer test pursuant to Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547.

The trial court found that Licensee had been involved in a single car accident. When the arresting officer arrived on the scene he noticed that Licensee had a strong odor of alcoholic beverages on his breath, that he had a difficult time standing up, that he had to hold onto his vehicle, and that he could not perform a balance test. The trial court further found that Licensee, after being warned that failure to submit to a breathalyzer test would result in the loss of his operating privileges, agreed to take the test. But when the breathalyzer machine was ready Licensee refused

[ 94 Pa. Commw. Page 196]

    to blow into it despite being warned again of the consequences of not doing so.

Licensee's sole argument on appeal is that although he was warned of the consequences of his refusal, an additional statement made by the police officer administering the test negated the warning.*fn1 Specifically, Licensee maintains that because the officer told him that the result of not taking the test was the same as flunking it, the warning given to him was voided and his suspension should therefore be rescinded. There is no dispute that this statement was made. The trial court, however, noting that Licensee was warned, viewed the remark as an extraneous one.

In Peppelman v. Commonwealth, 44 Pa. Commonwealth Ct. 262, 403 A.2d 1041 (1979) we held that where an officer warned a licensee that failure to submit to a breathalyzer test could (rather than would) result in suspension of driving privileges the warning was inadequate. We noted in Peppelman a legislative intent that a licensee be warned of the consequences of refusing a breathalyzer test. In the instant case the trial court found that Licensee was warned. Licensee himself admits receiving the warning. He argues, however, that "[o]nce a driver has been advised by the breathalyzer examiner that his refusal to take the test is the same as flunking it, the driver may very well conclude that there is no point in taking the test, because if he flunks it he will lose his license for one

[ 94 Pa. Commw. Page 197]

    year anyway." Licensee's brief at 6-7 (emphasis added). While we concede that the very last part of this statement may be logically accurate we do not believe that it is reasonable behavior for a person to elect the certainty of suspension by refusing to take the test when by submitting to the examination the driver has at least an opportunity to save his license from suspension. Moreover, the reasonableness of Licensee's behavior is not the issue, but by beginning from ...


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