Appeal from the Order of the Court of Common Pleas of Berks County in the case of Commonwealth of Pennsylvania, Department of Transportation v. Allan Mark Craze, No. 286 December Term, 1983.
Lawrence J. Hracho, for appellant.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, for appellee.
Judges MacPhail and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.
[ 111 Pa. Commw. Page 137]
Appellant Allan Mark Craze appeals the order of the Court of Common Pleas of Berks County dismissing his appeal of the suspension of his motor vehicle operating privileges by the Department of Transportation pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b) (refusal to submit to chemical testing). We affirm the decision of the trial court.
On the evening of November 24, 1983, Appellant was involved in an automobile accident. Officer David Pottiger of the Mohnton Police Department observed that Appellant behaved in a disorderly manner by throwing his wallet in the street, swearing, and kicking his car. Officer Pottiger also observed that Appellant's eyes were bloodshot and pupils dilated, and that he could smell alcohol on Appellant's breath. Appellant told Officer Pottiger that he had had one beer and that he was the driver of his vehicle.
Appellant successfully completed a field sobriety test by walking heel-to-toe on a straight line. Officer Pottiger testified that Appellant passed this test "with difficulty" and that Appellant's legs were "wobbly." Notes of Testimony at 9-10, Reproduced Record at 13a-14a. Appellant was arrested for driving under the influence
[ 111 Pa. Commw. Page 138]
pursuant to Section 3731 of the Vehicle Code, 75 Pa. C.S. § 3731, and was asked to submit to a breathalyzer test. Appellant initially agreed to the test. Soon after arrival at the Cumru Township Police Department, however, it was learned that the breathalyzer instrument was not functioning properly. Officer Pottiger then requested that Appellant submit to a breathalyzer test at another location. After consultation with his former guardian, Appellant refused. Appellant had been warned upon both requests for testing that a refusal would result in the suspension of his driver's license.
The first issue Appellant raises on appeal to this Court is whether motor vehicle operating privileges may properly be suspended when Appellant assented to the first request for chemical testing and subsequently refused the second request for testing which was to be completed at an unknown time and place. Appellant contends that the second request was excessive and an abuse of Officer Pottiger's discretion. We disagree.
Our Supreme Court has held that a second test for alcohol level is not proper if the request is made solely to enhance the accuracy of the first test. Commonwealth of Pennsylvania, Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987). That is not the situation in the instant case. Appellant had not been tested at all prior to his refusal, due to the malfunction of the breathalyzer machine in the station where he was initially taken following the automobile accident. Removal to another location was necessary in order to obtain test results.
Appellant contends that his refusal to accompany the officer to another location for the breathalyzer test was due to his physical and emotional condition following the accident and being cold and wet from the rain. There was no evidence presented, however, ...