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decided: January 5, 1988.


Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of Commonwealth of Pennsylvania v. Robert A. Penich, Jr., No. 3268 of 1985.


Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Morey Myers, General Counsel, for appellant.

Vincent C. Murovich, Murovich, Peirce, Stump and Knorr, for appellee.

Judges Craig, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 112 Pa. Commw. Page 304]

The Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Westmoreland County sustaining the appeal of Robert A. Penich, Jr. (Licensee) to the Department's one-year suspension of his driver's license.

While the facts in this case are uncontroverted, the legal issues to be resolved require us to interpret the recent decision of our Supreme Court in Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987). The McFarren Court held that, if more than one chemical test is requested by a police officer, "the police officer must offer sufficient evidence to establish the 'reasonableness' of such a request." Id. at 418, 525 A.2d at 1188.*fn1

In the case now presented, it was stipulated before the trial court that the arresting officer had reasonable grounds to believe Licensee was driving under the influence; that he placed Licensee under arrest; and that Licensee was asked to submit to a breathalyzer test. As required by a Department regulation,*fn2 two breath tests

[ 112 Pa. Commw. Page 305]

    were administered to Licensee: the first test produced a reading of 0.10%, and the second a reading of 0.09%.*fn3 The police officer then requested that Licensee submit to a chemical test of his blood. Licensee refused to submit to this test on the ground that the two breath tests satisfied the implied consent provisions of Section 1547(a) of the Vehicle Code (Code).*fn4

Upon receiving notification of Licensee's refusal to take the blood test, the Department suspended his driver's license for one year pursuant to Section 1547(b) of the Code, 75 Pa. C.S. § 1547(b). The common pleas court reversed the suspension, holding that Licensee satisfied the requirements of Section 1547(a) by submitting to the two breath tests. The Department appeals to this Court.

[ 112 Pa. Commw. Page 306]

As we read McFarren, a police officer with reasonable grounds to believe a licensee was operating a vehicle while under the influence*fn5 initially has unfettered discretion under Section 1547(a) to request the licensee to submit to one of the following types of chemical tests: breath, blood, or urine. Once the police officer selects the type of test to be administered, however, his or her discretion is curbed. If a breath test is chosen, the police officer must administer it twice.*fn6 If a blood or urine test is chosen, it may only be administered once unless the police officer establishes a reasonable ground for requesting a second test. For example, "[a] second test may be proper if the first test was inconclusive due to faulty equipment or faulty performance by the individual." McFarren, 514 Pa. at 417, 525 A.2d at 1188. Likewise, McFarren also requires a reasonable reason whenever a police officer requests a licensee to submit to a different type of chemical test other than the one originally chosen and administered, regardless of the number of times the inital type of test is permissibly given. Reasonability, of course, is a question of law for the court to decide based upon the unique facts in each case. Cf. Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 26 Pa. Commonwealth Ct. 201, 363 A.2d 870 (1976).

In the present case, the police officer asked Licensee to submit to a blood test after he had completed two

[ 112 Pa. Commw. Page 307]

    successful breath tests. The result of the second breath test, the only result admissible under 67 Pa. Code § 77.24(b)(2), showed a reading of 0.09%. This would have meant, at this point, that the only chemical test that would have been properly admissible at Licensee's subsequent trial on the Code violation would allow for no presumption.*fn7 75 Pa. C.S. § 1547(d)(2). The officer testified, however, that he felt the breathalyzer readings were inaccurately low because of the behavior of Licensee and because he found a bottle of what appeared to be prescription medication tablets on Licensee's person.*fn8

We believe that as a matter of law this is insufficient evidence to establish the reasonableness of requesting Licensee to submit to a different test. The record is devoid of any testimony of the police officer indicating the specific type of behavior on the part of Licensee that led to the police officer's suspicion. Furthermore, there is

[ 112 Pa. Commw. Page 308]

    no testimony indicating that the officer suspected that the tablets found on Licensee's person were controlled substances, but merely a prescription drug. Rather, it appears that the police officer, having failed through the two breath tests to acquire enough evidence to raise an inference of Licensee's driving in violation of Section 3731(a)(4) of the Code,*fn9 was seeking to "enhance the evidence and guarantee a conviction," precisely the sort of conduct proscribed by our Supreme Court. McFarren, 514 Pa. at 418, 525 A.2d at 1188. For this reason, suspension of Licensee's operating privileges was improper.



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