Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania, Department of Transportation v. Ralph L. Bender, No. 84-01574.
Harold H. Cramer, Assistant Counsel, with him, Jay C. Waldman, General Counsel, and Spencer A. Manthorpe, Chief Counsel, for appellant.
George B. Ditter, with him, Stephen P. Imms, and Gerhard P. Dietrich, Jenkins, Tarquini & Jenkins, for appellee.
Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge MacPhail dissents.
[ 107 Pa. Commw. Page 476]
In this driver's license suspension case, the Department of Transportation, Bureau of Driver Licensing (Bureau), appeals here an order of the Court of Common Pleas of Montgomery County sustaining the appeal of a motorist, Ralph L. Bender, Appellee, from a Bureau suspension order. The Bureau suspended Bender's driving privileges for one year under Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547, commonly referred to as the "Implied Consent Law." We reverse.
Bender was stopped by a Pennsylvania State Trooper after the trooper observed his vehicle being operated
[ 107 Pa. Commw. Page 477]
in a reckless manner on the eastbound Pennsylvania Turnpike in Montgomery County. After he was pulled over to the side of the road, the trooper detected an odor of alcohol on Bender's breath and noticed that he was unsteady on his feet. Based upon these observations, the trooper placed him under arrest for driving under the influence and advised him of his Miranda*fn1 rights. The trooper also asked Bender to consent to take a breathalyzer test to which he agreed.
Bender was transported to the Plymouth Meeting State Police Barracks where the test was to be administered. It was approximately 12:00 midnight. The breathalyzer required a twenty minute warm-up period during which time the trooper advised Bender of the Implied Consent Law and warned him that his license would be suspended if he refused to take the test. Bender was a New Jersey resident and held a New Jersey driver's license. At approximately 12:10 in the morning he was again apprised of his Miranda rights at which time he requested to speak with his attorney over the telephone. He was not allowed to do so. At 12:24, after the breathalyzer was warmed up, Bender was asked to take the breathalyzer. At that time, he refused to do so until he had an opportunity to speak with his attorney. The troopers treated his response as a refusal and shut off the breathalyzer. Bender was permitted to call his attorney at 12:29 a.m. after which he indicated he was willing to take the test. The troopers indicated that it was too late and did not administer the test. The common pleas court found that the five minute period between Bender's refusal and subsequent assent to take the breathalyzer was not "substantially short of an unqualified, unequivocal assent" to take a breathalyzer. Commonwealth v. Bender, 115 Montg. 76, 81 (Pa.C.P.
[ 107 Pa. Commw. Page 4781984]
). Additionally, the common pleas court held the warnings given by the trooper that Bender's driver's license would be suspended if he refused the test was erroneous since the Bureau did not have the authority to suspend a New Jersey driver's license, misled him and made his refusal neither knowing nor voluntary. Id.
Before this Court, the Bureau argues that the common pleas court erred by (1) concluding Bender's initial refusal, followed five minutes later by an assent, to the breathalyzer was not substantially short of an unqualified and unequivocal assent; and (2) the trooper's warning that Bender's New Jersey driver's license would be suspended if he refused the breathalyzer did not negate the knowing and voluntary nature of Bender's refusal to take the breathalyzer. We shall discuss those issues in the order stated, keeping in mind that we must affirm the common pleas court unless its ...