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COMMONWEALTH PENNSYLVANIA v. PETER R. DEFAVERI (02/03/86)

filed: February 3, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
PETER R. DEFAVERI



Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC 8312369A and CC 8400009.

COUNSEL

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.

Larry P. Gaitens, Pittsburgh, for appellee.

Spaeth, President Judge, and Rowley and Wieand, JJ. Spaeth,*fn* Former President Judge, files a concurring opinion. Wieand, J., concurred in the result.

Author: Rowley

[ 352 Pa. Super. Page 97]

OPINION OF THE COURT

The appellee, Peter DeFaveri, was arrested and charged with recklessly endangering another person,*fn1 driving under the influence of alcohol,*fn2 homicide by vehicle,*fn3 involuntary manslaughter,*fn4 and reckless driving*fn5 following a head-on collision in which DeFaveri was injured and two others were killed. Police and emergency crew personnel at the scene of the accident smelled alcohol on DeFaveri's breath and

[ 352 Pa. Super. Page 98]

    found him to be combative. As a result of his injuries, DeFaveri was taken to a hospital emergency room. While there, a police officer advised him of his Miranda rights. DeFaveri, while capable of responding, chose to remain silent. The officer then arrested DeFaveri and directed that two vials of blood be drawn from him. DeFaveri maintained his silence, refusing to consent to the test either orally or in writing. The blood samples revealed that DeFaveri's blood alcohol content was 0.33, a result which he petitioned the trial court to suppress. Following a hearing, the court granted the motion to suppress. The court held, "The current version of § 1547 permits a motorist to refuse a requested blood test when a police officer has reasonable grounds to believe 'the person [requested to take the test] to have been driving, operating or in actual physical control of the movement of a motor vehicle.'" R.R. at 7. The Commonwealth now brings this appeal.

The Pennsylvania Supreme Court has established that the Commonwealth may appeal from an adverse ruling by the trial court on a suppression motion "when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution." Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985). The Commonwealth has so certified and the appeal is properly before us.

The appellee argues that § 1547 of the Motor Vehicle Code (75 Pa.C.S.) affords all drivers the right to refuse a blood test. Section 1547 provides in part:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance

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

[ 352 Pa. Super. Page 99]

    actual physical control of the movement ...


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