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COMMONWEALTH PENNSYLVANIA v. HENRY GOLDOWSKI (10/26/87)

decided: October 26, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
v.
HENRY GOLDOWSKI, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County, in case of Henry Goldowski v. Pennsylvania Department of Transportation, Bureau of Traffic Safety, No. 5203-C of 1984.

COUNSEL

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, Henry G. Barr, General Counsel, for appellant.

Joseph M. Blazosek, with him, Anthony J. Lupas, for appellee.

Judge Craig, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 110 Pa. Commw. Page 427]

This is an operator's license suspension appeal wherein the Department of Transportation, Bureau of Driver Licensing (Bureau), appeals here an order of the Court of Common Pleas of Luzerne County sustaining the appeal of Henry Goldowski, Appellee, from a Bureau order suspending his operating license. The Bureau suspended his operator's license pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b), due to his refusal to submit to a chemical test to determine the alcohol content of his blood. We reverse.

[ 110 Pa. Commw. Page 428]

The following facts found by the common pleas court are pertinent to our disposition of this appeal. On November 10, 1984, Plains Township Police Officer Thomas Zurawski responded to a radio call of a two vehicle accident on North Main Street in Plains Township. At the scene, he observed that the vehicles were involved in a head-on collision and Appellee's vehicle was in the southbound lane heading north. Officer Zurawski also observed that Appellee's eyes were "glassy", his speech was slurred, and he told the officer that he had been drinking a few hours earlier. After Appellee was transported to Wilkes-Barre Hospital for treatment, Officer Zurawski advised him that he was under arrest for driving under the influence. Officer Zurawski also informed him that his operator's license would be suspended if he refused to submit to chemical testing. Appellee was not asked to take a breathalyzer test due to injuries to his mouth. After a discussion with the physician on duty, Officer Zurawski asked Appellee to take a blood test. Appellee refused the test explaining that he was afraid of needles. The common pleas court found that Appellee was not offered a urine test, as the Bureau had alleged. When the Bureau suspended his operator's license pursuant to 75 Pa. C.S. § 1547(b), he appealed to common pleas court. Following a hearing, the common pleas court sustained the appeal and vacated the suspension. The common pleas court based its decision solely upon its finding that the Bureau did not prove that it offered Appellee the urine test as it alleged and that Appellee refused that test. The Bureau has appealed that decision to this Court.

In this appeal, the sole question presented by the Bureau is that the common pleas court erred as a matter of law when it sustained Appellee's appeal despite its finding that he refused the only chemical test he was offered. The Bureau contends that once a motorist

[ 110 Pa. Commw. Page 429]

    refuses a chemical test, it can suspend his or her operator's license regardless of whether an alternative test is offered or refused. On the facts present in this case, we agree with the Bureau.

We have held on numerous occasions in the recent past that once a motorist refuses a chemical test under 75 Pa. C.S. § 1547, the Bureau may properly suspend the motorist's operator's license under 75 Pa. C.S. § 1547(b) regardless of whether or not the motorist subsequently assents to a chemical test. See, e.g., Department of Transportation, Bureau of Driver Licensing v. Bender, 107 Pa. Commonwealth Ct. 475, 529 A.2d 44 (1987); Kase v. Commonwealth, 88 Pa. Commonwealth Ct. 414, 489 A.2d 986 (1985); Department of Transportation, Bureau of Traffic Safety v. O'Rourke, 25 Pa. Commonwealth Ct. 580, 361 A.2d 496 (1976). Once a valid request has been made to submit to a chemical test, following recitation of the statutory warning, anything substantially less than an unqualified, unequivocal assent to take a chemical test constitutes a refusal warranting an automatic suspension of the motorist's operator's license. Sheakley v. Department of Transportation, 99 Pa. Commonwealth Ct. 328, 513 A.2d 551 (1986), allowance of appeal denied, 515 Pa. 586, 527 A.2d 546 (1987). It is well-settled that a motorist's fear of needles, as is the case here, does not justify a refusal to submit to a blood test. See, e.g., Smith v. Department of Transportation, 97 Pa. Commonwealth Ct. 74, 508 A.2d 1269 (1986); Department of Transportation, Bureau of Traffic Safety v. Bartle, 93 Pa. Commonwealth Ct. 132, 500 A.2d 525 (1985).

In the case at bar, the common pleas court found that Officer Zurawski had reasonable grounds to believe Appellee was driving under the influence and placed him under arrest for driving under the influence; that ...


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