Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. Daniel H. Siegert, No. SA 55 of 1984.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Daniel H. Siegert, appellee, for himself.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 98 Pa. Commw. Page 338]
The Department of Transportation, Bureau of Driver Licensing (Bureau), appeals here the order of the Allegheny County Court of Common Pleas sustaining Daniel H. Siegert's appeal from the one-year suspension
[ 98 Pa. Commw. Page 339]
of his operating privilege imposed by the Bureau upon Siegert's failure to accede to a repeated request that he submit to a breathalyzer test as required by Section 1547(a) of the Vehicle Code, 75 Pa. C.S. § 1547(a).
The testimony before the common pleas court establishes the following. Siegert was arrested on November 27, 1983 by Officer Kubit who observed Siegert's vehicle partially on the sidewalk with two front flat tires and Siegert attempting to back the vehicle onto the roadway. When Siegert exited the vehicle, the officer noticed that Siegert staggered, demonstrated incoherent speech, had bloodshot eyes and the strong odor of alcohol on his person. At the station, Officer Kubit informed Siegert that refusal to submit to a breathalyzer test would result in the automatic suspension of his operating privileges for one year. The officer testified before the common pleas court that, while Siegert submitted to the test, he failed to make a tight seal around the mouthpiece resulting in an insufficient amount of air for the test. Officer Kubit testified that he again advised Siegert of the consequences for failing to take the breathalyzer test and that Siegert responded by saying that he wanted to speak with his attorney.
Siegert testified before the common pleas court that he complied with the officer's request to blow into the machine two or three times and when, fifteen minutes later, he was again requested to submit to the test, he stated that he had taken the test a sufficient number of times and that he would like to call his attorney.
On appeal from the common pleas court order reversing the suspension, the Bureau argues that Section 1547(a) of the Vehicle Code, 75 P.S. § 1547(a), clearly authorizes a police officer to request, one, or more than one, chemical tests of breath, blood or urine, to which the operator of the motor vehicle is deemed to
[ 98 Pa. Commw. Page 340]
have given consent, and that Siegert's refusal to comply upon the police officer's repeated request justified the ...