Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Samuel Naples v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, No. 84-19177.
Daniel J. Maisano, for appellant.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellee.
Judges MacPhail and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.
[ 110 Pa. Commw. Page 38]
Samuel Naples (Appellant) appeals an order of the Montgomery County Court of Common Pleas which dismissed his appeal from a suspension of his operating privileges by the Department of Transportation (DOT). We affirm.
The record reveals that Appellant was arrested on October 17, 1984 by a state policeman who observed Appellant's vehicle weaving between the right and left lanes of the roadway. After Appellant was taken to the state police barracks, another officer asked Appellant to take a breathalyzer test. After Appellant refused, the officer explained to Appellant that under Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547, "should you refuse to submit to . . . [the] test your license will be suspended for one full year period, twelve full months."*fn1 The officer then gave Appellant an opportunity to blow into the mouthpiece and even explained the implied consent law several more times to Appellant. Appellant never availed himself of the opportunity to submit to the test.
Appellant argues that the warning given him concerning the suspension of his license was invalid because it was given after he refused to take the test. We disagree.
In Jackson v. Commonwealth, 97 Pa. Commonwealth Ct. 602, 510 A.2d 396 (1986), this Court held that "an untimely warning can be cured by a post warning opportunity to assent. This interpretation is in harmony with the intent of Section 1547(b)(2) in that it permits a licensee to make an informed choice." Id. at 604-05, 510 A.2d at 398.
[ 110 Pa. Commw. Page 39]
In the instant case, it is true that the warning was untimely because it was given after Appellant refused to take the test. However, it is also true that Appellant was then given ample opportunity to take the test. This opportunity cured the tardiness of the warning.
Appellant also argues that Section 1547 requires that the arresting officer give the warning. Appellant maintains that the warning given him was invalid because it was not given by the arresting officer but rather ...