Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Patrick M. O'Connell, No. 83-11202.
Harold H. Cramer, Counsel, with him, Michael R. Deckman, Deputy Chief Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
George B. Ditter, Jenkins, Tarquini & Jenkins, for appellee.
Judges Craig, Doyle and Colins, sitting as a panel of three. Opinion by Judge Doyle. Judge Colins dissents.
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The Pennsylvania Department of Transportation, Bureau of Traffic Safety (Department) appeals from an
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order of the Court of Common Pleas of Montgomery County which reversed the Department's one year suspension of Patrick M. O'Connell's (Appellee's) motor vehicle operator's license pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b) (refusing to take a breathalyzer test).
Appellee was the operator of an automobile which struck two parked cars in Abington Township on the evening of June 19, 1983. Due to the strong odor of alcohol on Appellee's breath, the officer investigating the accident (Officer Stein) conducted a field sobriety test. Appellee failed to perform the test satisfactorily and was placed under arrest for driving under the influence of alcohol. He was then advised of his Miranda rights and transported to the Abington Police Station, where he was given a form containing the Miranda warnings and questions relating to the warnings and was directed to respond to the questions in writing. Paragraph 6 of the form asked, "Do you want to talk to a lawyer at this time or have a lawyer with you while we ask you questions?" Appellee initially answered this question, "No", but subsequently changed his answer to "Yes". After completing the form he was asked to take a breathalyzer test. Officer Stein testified that Appellee "flatly refused" to take the test, not just once, but three separate times. Appellee did not contest the fact of his refusal, nor did he refute Officer Stein's testimony that he was advised of the consequences of that refusal. He testified, however, that his refusal was based on the fact that he had not been permitted to contact a lawyer. According to the trial court, Appellee also testified that he verbalized the basis for his refusal to Officer Stein.
Appellee was eventually permitted to contact his attorney, and, following a consultation with him, Appellee indicated that he was now willing to take the breathalyzer test. Officer Stein, however, refused to administer
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the test at that time because he had been unable to observe Appellee personally for the past thirty-five to forty minutes.
In order for a suspension for refusal to submit to a breathalyzer test to be sustained, the Department must prove that the driver was placed under arrest upon a charge of driving under the influence; was requested to submit to the test and refused; and was specifically warned that his license would be suspended as a result of the refusal. Herbert v. Commonwealth, 75 Pa. Commonwealth Ct. 28, 460 A.2d 920 (1983). Once the above elements have been ...