Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, No. 86-10,618.
Mark Lovecchio, Williamsport, for appellant.
Kenneth Osokow, Assistant District Attorney, Williamsport, for Com., appellee.
Wieand, Tamilia and Cercone, JJ.
[ 370 Pa. Super. Page 366]
Steven West was tried non-jury on January 9, 1987 and was found guilty of driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(4).*fn1 Oral post-trial
[ 370 Pa. Super. Page 367]
motions, made immediately following trial, were denied. West was sentenced on March 13, 1987 to pay a fine of seven hundred ($700.00) dollars, plus costs, and to undergo imprisonment for not less than twenty (20) days nor more than one (1) year. On direct appeal, West asserts that the trial court erred by denying his suppression motion. He argues specifically that he should have been permitted to speak with an attorney before deciding whether or not to consent to a breathalyzer test. We find no merit in this contention and affirm the judgment of sentence.
At or about 11:45 p.m. on June 7, 1986, two police officers observed West operating his car in an erratic manner in the City of Williamsport, Lycoming County. The officers followed West and observed that he was exceeding the speed limit and that he failed to stop at a stop sign. The police then stopped West's car and observed beer bottles therein. When West responded belligerently to the stop, he was placed under arrest for disorderly conduct. While being transported to City Hall to be processed on the disorderly conduct charge, one of the officers detected the odor of alcohol on West's breath and informed him that he would be charged also for driving while under the influence of alcohol. It was at this point that West asked to speak to an attorney.
At City Hall, West's Miranda rights were read to him, and he again asked to see an attorney. The police asked West for his name and address, and then requested him to perform several sobriety tests. After he had failed to perform these tests satisfactorily, he was again told that he was under arrest for driving under the influence and was requested to submit to a breathalyzer test. West was advised of the consequences of failing to consent to the test,*fn2 and thereafter he agreed to take a breathalyzer test. The results of the test indicated that his blood alcohol content was .17%.
[ 370 Pa. Super. Page 368]
Prior to his trial, West filed a motion to suppress both the results of the breathalyzer test and the video tape record compiled by the police*fn3 on grounds that he had requested an attorney and had been denied an opportunity to obtain one. Following an evidentiary hearing, West's suppression motion was denied. West then filed a motion for reconsideration of the suppression ruling, but, following another evidentiary hearing, the motion was again denied. Now, on direct appeal, West argues that his constitutional right to counsel was violated when his requests to speak with an attorney were not granted prior to his submission to a breathalyzer test. We do not agree.
In Commonwealth v. Morris, 218 Pa. Super. 347, 280 A.2d 658 (1971), this Court, in the context of a license suspension for refusal to take a breathalyzer test, was asked to decide whether police must honor a request by a licensee to speak with an attorney prior to consenting to take a breathalyzer ...