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VINCENT T. MCFARREN v. COMMONWEALTH PENNSYLVANIA (04/07/86)

decided: April 7, 1986.

VINCENT T. MCFARREN, JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Vincent T. McFarren, Jr., No. 108 of 1984.

COUNSEL

Kurt R. Gingrich, with him, Richard E. Rush, Thomson, Rhodes & Cowie, for appellant.

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

Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 96 Pa. Commw. Page 263]

In Department of Transportation, Bureau of Traffic Safety v. Fullerton, 31 Pa. Commonwealth Ct. 609, 377 A.2d 1024 (1977), we held that a motorist's refusal to submit to a second breathalyzer alcohol test, when the breathalyzer machine did not function properly the first time, constituted a violation of the statutory duty to submit to an alcohol test. The issue in this case is whether a motorist's refusal to submit to a second breathalyzer alcohol test, when the breathalyzer machine did function properly the first time, constitutes a violation of that statutory duty.

Here, McFarren, arrested for driving under the influence of alcoholic beverages, assented to a breathalyzer alcohol test. The alcohol level registered .17 on the breathalyzer machine. Twenty minutes after McFarren performed the alcohol test, the arresting police officers requested McFarren to submit to a second breathalyzer test. In response to the police officer's request, McFarren demanded to contact an attorney, or in the alternative, to see in writing the law which required him to submit to a second breathalyzer alcohol test. The police officers warned McFarren several times that his refusal to submit to the second test would result in an automatic suspension of his operating privileges for at least one year. McFarren did not take the second breathalyzer alcohol test. The Department of Transportation, pursuant to section 1547(b) of the Vehicle Code, as amended, 75 Pa. C.S. ยง 1547(b), suspended McFarren's operating privileges for one year.*fn1

[ 96 Pa. Commw. Page 264]

McFarren appealed from the decision of DOT to the Court of Common Pleas of Allegheny County. The court of common pleas dismissed McFarren's appeal and this appeal followed. We affirm.

McFarren argues that the police had no authority to demand a second test because the phrase "one or more", in section 1547(a) of the Vehicle Code, is vague in that it could mean one test of breath, one test of blood and one test of urine, or an indefinite number of each type of test, thus giving police officers unbridled discretion in the number of tests they can require motorists to perform. Section 1547(a) of the Vehicle Code provides:

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 actual physical control of the movement of a motor vehicle:

(1) while under the influence of alcohol or a controlled substance or both; or

(2) which was involved in an accident in which the operator or passenger of ...


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