Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing v. Adolph F. Fellmeth, Jr., No. 84-18207.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, Jay C. Waldman, General Counsel, for appellant.
Adolph F. Fellmeth, III, for appellee.
Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 108 Pa. Commw. Page 173]
The Pennsylvania Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Montgomery County Court of Common Pleas reversing DOT's suspension of Adolph F. Fellmeth, Jr.'s driver's license.
The question is whether a motorist's declining to submit to a second breathalyzer test, when the breathalyzer machine functioned properly the first time except for a printing error, constitutes a "refusal" to take a chemical test for blood alcohol content in violation of the statutory duty to submit to such a test.
Fellmeth, arrested for driving under the influence of alcohol after he failed a field sobriety test, assented to a breathalyzer alcohol test. The arresting officer, a certified breathalyzer operator, administered the test in the presence of two other officers. The breathalyzer machine registered a reading of .201% on the liquid crystal display located on the machine for the test of Fellmeth's breath, and all three officers observed that reading.
However, the breathalyzer machine's printer malfunctioned in printing the test reading on a ticket that it produced as a record of the test. The printer properly printed a "purge" reading of .88 and above that a "sample" reading of .00,*fn1 but the printer did not then advance the paper. That malfunction caused the "test" reading of .20 to be superimposed on the sample reading.
[ 108 Pa. Commw. Page 174]
The officer administering the test advised Fellmeth of the printer malfunction and requested that he submit to another test. Fellmeth, expressing certain confused notions of "double jeopardy," declined, despite repeated warnings from the police that his failure to submit to the second test could result in the suspension of his driving privileges. DOT, pursuant to section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b), suspended Fellmeth's operating privileges for one year.*fn2
Fellmeth appealed the decision of DOT to the Court of Common Pleas of Montgomery County. The court reversed the suspension, finding that Fellmeth had assented to a valid and correct breathalyzer test and concluding, therefore, that he ...