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COMMONWEALTH PENNSYLVANIA v. VINCENT T. MCFARREN (05/22/87)

decided: May 22, 1987.

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



Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 1867 C.D. 1984, dated April 7, 1986, Affirming the Order of the Court of Common Pleas of Allegheny County, Civil Division at Docket No. SA 108-1984, dated June 8, 1984. Pa. Commw. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott and Papadakos, JJ., concur in the result. Larsen and Hutchinson, JJ., noted a dissent.

Author: Zappala

[ 514 Pa. Page 413]

Opinion ANNOUNCING THE JUDGMENT OF THE COURT

Before us is an appeal from the Order of the Commonwealth Court affirming the Order of the Court of Common Pleas of Allegheny County affirming the Order of the Department of Transportation suspending the Appellant's operating privileges for a period of one year. On or about December 21, 1983, the Appellant was observed by two police officers driving through a "steady red light" and proceeding for "approximately two hundred to three hundred yards in an erratic manner." (N.T., p. 2). As a result, the police officers stopped the Appellant and detected the "strong odor of alcoholic beverage about his person and breath". The officer's testimony also indicated that the Appellant had difficulty in walking and otherwise failed various field sobriety tests. The Appellant was placed

[ 514 Pa. Page 414]

    under arrest for operating a motor vehicle while under the influence of alcohol. At the police station, the Appellant was requested to and consented to perform a breathalyzer test. After the test was performed, the officers requested that the Appellant submit to a second breathalyzer test. In response to this request, the Appellant asked to speak to an attorney or in the alternative to see the statute requiring him to submit to a second breathalyzer test. Even though he was warned by the police officers several times that such a response was considered a refusal and would result in an automatic suspension of his operating privileges for at least one year, the Appellant refused the second test.

As a result of his refusal to take the second test, the Department of Transportation suspended the Appellant's operating privileges under § 1547(a) of the Motor Vehicle Code (75 Pa.C.S. § 1547(a)). The Appellant appealed his suspension to the Court of Common Pleas of Allegheny County which dismissed his appeal. Commonwealth Court affirmed, 507 A.2d 879, and we granted the Appellant's petition for allowance of appeal.

In this appeal we are asked to interpret § 1547(a) of the Motor Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, § 1 as amended December 15, 1982, P.L. 1268, No. 289, § 5, 75 Pa.C.S. § 1547(a), which states as follows:

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 . . . . (emphasis added).

Specifically, we are asked to address the limited question of whether this section authorizes the police to administer a second chemical test. If § 1547(a) grants to policemen this authority, then the Appellant violated § 1547(b) and the Secretary of the Department of Transportation was correct in suspending the Appellant's driver's license. However, if

[ 514 Pa. Page 415]

§ 1547(a) does not support a request for a second chemical test, then the Appellant was justified in refusing to take a second test and the Secretary acted improperly in suspending the Appellant's driver's license.

The problem that this Court is faced with is the proper interpretation of that part of § 1547(a) which states ". . . one or more chemical tests of breath, blood or urine . . . ." since it is clearly susceptible to more than one interpretation.*fn1 When faced with statutory interpretation, the court must ascertain and effectuate the intention of the legislature. Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). The legislature has provided us with the Statutory Construction Act, the Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S. § 1901 et seq., to assist us in determining the proper interpretation of a statute. Since no legislative history exists with regard to the subject provision, we must resort to the criteria enumerated in § 3 of the Act.

Subsection (c) of § 3 of the Act sets forth various factors to be considered in ascertaining the legislative intent when the ...


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