Appeal from the Order of the Court of Common Pleas of Carbon County, in case of Commonwealth of Pennsylvania v. Terry Ernest Borger, No. 86-0077, dated March 10, 1986.
Stephen Peter Vlossak, Sr., for appellant.
John T. Clary, Jr., Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, for appellee.
Judges MacPhail and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Doyle.
[ 110 Pa. Commw. Page 513]
Terry Borger (Appellant) appeals here from an order of the Court of Common Pleas of Carbon County which affirmed the suspension of Appellant's operating privileges by the Department of Transportation (DOT) because Appellant refused a chemical test of his blood after having been arrested for driving under the influence of alcohol.*fn1
[ 110 Pa. Commw. Page 514]
Appellant stipulated that he was arrested for operating a motor vehicle while under the influence of alcohol and that the arresting officer had proper cause to arrest him.
Appellant testified that after appropriate warnings, he consented to take an intoxilyzer test. When that test was administered, the intoxilyzer operator determined that the machine was not operating properly because the simulator results were inaccurate.
At this point, the arresting officer requested Appellant to undergo a blood test at the hospital.*fn2 Appellant refused on the ground that he feared needles. He, nevertheless, was transported to the hospital where he again refused to take the blood test because of his fear of needles. He was duly warned of the consequences of his refusal.
There was then a conversation about a urinalysis. The arresting officer testified:
Q. Was there any other purpose for going to the hospital?
A. -- that was my purpose; to withdraw blood. I did consider urine, but after talking with ...