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WAYNE ALLEN SMITH v. COMMONWEALTH PENNSYLVANIA (04/08/86)

decided: April 8, 1986.

WAYNE ALLEN SMITH, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cambria County, in case of Commonwealth of Pennsylvania, Department of Transportation v. Wayne Allen Smith, No. 1983-1283.

COUNSEL

Norman A. Krumenacker, III, Krumenacker & Krumenacker, for appellant.

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

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

Author: Craig

[ 97 Pa. Commw. Page 75]

Wayne Allen Smith appeals from an order of the Court of Common Pleas of Cambria County affirming the Department of Transportation's suspension of Smith's operating privileges for one year. We affirm.

Smith, arrested for driving under the influence of alcohol, assented to a breathalyzer alcohol test. However, before the breathalyzer test was performed, the arresting officer directed that Smith be taken to the hospital for a blood alcohol test.

At the hospital, Smith refused to submit to the blood alcohol test because he allegedly had a fear of needles. The police officer warned Smith that his refusal to submit to the blood alcohol test would result in an automatic suspension of his operating privileges for one year. Smith persisted in his refusal. Thereafter, the police officer obtained a search warrant which authorized blood and urine alcohol tests. Smith then submitted to the blood and urine alcohol tests. The department, pursuant to section 1547(b) of the Vehicle Code, as amended, 75 Pa. C.S. ยง 1547(b), suspended Smith's operating privileges for one year.*fn1

Smith contends that he complied with section 1547(a) of the Vehicle Code because he assented to the breath and urine alcohol tests, notwithstanding the fact

[ 97 Pa. Commw. Page 76]

    that he refused to submit to the blood test until the warrant required him to comply.

Section 1547(a) of the Vehicle Code states:

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 ...


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