Appeal from the Judgment of Sentence of July 6, 1987, in the Court of Common Pleas of Adams County County, Criminal Division, at No. CC-517-86.
Samuel K. Gates, Hanover, for appellant.
Gary E. Hartman, District Attorney, Gettysburg, for Com., appellee.
Cavanaugh, Rowley and Hester, JJ. Cavanaugh, J., files a dissenting opinion.
[ 368 Pa. Super. Page 182]
This appeal from the judgment of sentence involves a single issue: whether the trial court erred in refusing to suppress the results of a breathalyzer test. For the reasons which follow, we conclude that the trial court did not err, and affirm.
The record reveals that appellant, Jeffrey Wege, was arrested for driving under the influence of alcohol on October 26, 1986.*fn1 He entered a plea of guilty on December 30, 1986, which he successfully withdrew on March 2, 1987. Thereafter, on May 29, 1987, the trial court denied appellant's pretrial motion to suppress, and appellant entered a plea of nolo contendere on July 6, 1987. The court sentenced appellant to a term of incarceration of thirty days to twenty-three months, plus the payment of fines and costs. This appeal followed.
The facts of the case are as follows. On October 26, 1986, Officer Ricky Williams of the Littletown Borough Police, observed appellant driving, at 1:25 a.m., at approximately five miles per hour. When appellant crossed over the center line several times, Officer Williams put on his flasher and stopped appellant's vehicle. Appellant attempted to perform several field sobriety tests, but failed. The officer noticed that appellant's eyes were bloodshot, his speech was slurred, and he had an odor of alcohol on his breath. Appellant was arrested and taken to the Gettysburg Police Station where police administered Miranda
[ 368 Pa. Super. Page 183]
warnings and requested appellant to submit to a breathalyzer test. Appellant twice refused, but on the third request, submitted to the test. The test indicated that appellant's blood alcohol level was .26 percent.
Appellant argued in his pretrial motion to suppress, and argues now, that inasmuch as 75 Pa.C.S. § 1547(b) provides that chemical testing shall not be conducted upon a refusal to submit to such testing, the police improperly requested appellant to submit to the breathalyzer after his initial refusal. He thus asserts that the trial court should have suppressed the results of the breathalyzer exam. We do not agree.
Section 1547(b)(1) provides: