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GLENN R. BUSH v. COMMONWEALTH PENNSYLVANIA (01/14/88)

decided: January 14, 1988.

GLENN R. BUSH, JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the order of the Court of Common Pleas of Indiana County, in case of Commonwealth of Pennsylvania, Department of Transportation v. Glenn R. Bush, Jr., No. 1672 C.D. 1985.

COUNSEL

Thomas G. Johnson, for appellant.

Harold H. Cramer, Assistant Counsel, with him, Raymond A. Swan, Assistant Counsel, and Spencer A. Manthorpe, Chief Counsel, for appellee.

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

Author: Barry

[ 112 Pa. Commw. Page 511]

This is an appeal brought by Glenn R. Bush from an order*fn1 of the Court of Common Pleas of Indiana County

[ 112 Pa. Commw. Page 512]

    which dismissed his appeal from an order of the Department of Transportation (DOT) suspending his operator's license for a period of one year pursuant to Section 1547(b)(1) of the Vehicle Code (Code).*fn2 We affirm.

At a hearing held on February 5, 1986, the parties stipulated to the following facts. On September 25, 1985, Mr. Bush was involved in a minor automobile accident. Trooper Miller of the Pennsylvania State Police proceeded to the scene and based on his observation of Mr. Bush's behavior, placed him under arrest on the charge of driving under the influence. Mr. Bush was taken into custody and transported to police barracks where he was asked to submit to an intoxilyzer test. After a proper warning of the consequences of refusal Mr. Bush consented to the administration of the test. A reading was obtained whereupon he was asked to submit to a second intoxilyzer test pursuant to 67 Pa. Code § 77.24. Mr. Bush refused to consent to the second test and his license was subsequently suspended. He appealed the suspension to the Court of Common Pleas of Indiana County which dismissed his appeal. He now appeals to this Court.

The sole question before us is whether, in light of our Supreme Court's plurality decision in Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987), a licensee must suffer the consequences of a one year license suspension pursuant to § 1547(b)(1) for refusing to submit to a second intoxilyzer test which was requested by a police officer pursuant to 67 Pa. Code § 77.24(b)(1).

In McFarren our Supreme Court was called upon to interpret § 1547(a) of the Code. Of course, that case holds that if more than one chemical test is requested, "the police officer must offer sufficient evidence to establish

[ 112 Pa. Commw. Page 513]

    the 'reasonableness' of such a request." Id. at 418, 525 A.2d at 1188. As noted in footnote 1 of the opinion, the Supreme Court did not examine the applicability of 67 Pa. Code § 77.24 inasmuch as it was promulgated subsequent to the occurrence in that case. ...


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