Appeal from the Order of the Court of Common Pleas of Berks County, in case of In Re: Appeal from suspension of motor vehicle operating privileges of Robert Ray Turner, No. 75, March Term, 1985.
J. Matthew Wolfe, Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
David R. Eshelman, for appellee.
Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Senior Judge Kalish dissents.
[ 100 Pa. Commw. Page 540]
The Pennsylvania Department of Transportation, Bureau of Traffic Safety (Appellant) appeals from an order of the Court of Common Pleas of Berks County which sustained the appeal of Robert Ray Turner (Appellee) from the suspension of his operator's license for refusing to submit to a blood alcohol test pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. § 1547.
Appellee was involved in a motor vehicle accident on December 24, 1983. Officer David Gonzalez of the Sinking Spring Police Department arrived at the scene of the accident and found Appellee unconscious behind the steering wheel with his head leaning on the wheel. At that time the officer noted an odor of intoxicating beverage on Appellee's breath. Appellee was taken to the Reading Hospital and Medical Center, and when he regained consciousness, was asked by Officer Gonzalez
[ 100 Pa. Commw. Page 541]
if he would submit to a blood alcohol test. Appellee, a juvenile, stated that he would agree to take the test if his father agreed. Appellee's father, who was present, immediately assented. Officer Gonzalez then went to obtain hospital release forms, and upon his return, he informed Appellee that he was under arrest for driving under the influence of alcohol, and that if he refused to take the test his license would be suspended for one year. The officer again asked Appellee to consent to the test. Appellee did not respond. His father, however, now stated that he would not permit his son to take a test before he contacted his attorney. This was treated as a refusal by Appellee to take the test, and as a result his license was eventually suspended for one year.
Appellee appealed to the court of common pleas, which held an evidentiary hearing and sustained his appeal. The court framed the issues before it as follows:
First, whether the detection of the mere odor of intoxicating beverage on the breath of a vehicle driver alone is sufficient to constitute reasonable grounds to believe the driver has been driving under the influence of alcohol. Second, whether it is error to construe the driver's actions as a refusal to submit to chemical testing and to suspend the driver's operating privileges when a driver orally consents to take a blood test but refuses to sign a hospital release as a condition precedent to the hospital's drawing of the blood, and subsequently, pursuant to hospital policy, the blood is not drawn.
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