Appeal from the Order of the Court of Common Pleas of Elk County in the case of Commonwealth of Pennsylvania v. Michael J. Viglione, Jr., No. 85-385.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Henry G. Barr, General Counsel, for appellant.
Paul J. Malizia, Joseph J. Malizia, P.C., for appellee.
Judges Craig, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Judge Craig. Concurring Opinion by Senior Judge Kalish.
[ 113 Pa. Commw. Page 199]
The Department of Transportation appeals an order of the Court of Common Pleas of Elk County reversing a one-year suspension of Michael C. Viglione, Jr.'s operating privileges for refusing to submit to a breathalyzer test, pursuant to section 1547(b)(2) of the Vehicle Code, 75 Pa. C. S. § 1547(b)(2).
Viglione appealed the suspension to the court of common pleas, which held that the record did not clearly establish that the arresting officer had warned Viglione that he was required to submit to two breathalyzer tests, and that refusal to do so would result in a twelve-month suspension of his license.
The record discloses that, on June 14, 1985, State Trooper William Brown observed a vehicle, driven by Viglione, cross the center line of the road on at least two occasions. When Brown stopped the car and interviewed Viglione, the officer noted that Viglione had the scent of alcohol on his breath, that his gait was staggered, and that he was belligerent and uncooperative. The officer arrested Viglione for driving under the influence and transported him to police barracks, where he asked Viglione to submit to a breathalyzer test. Viglione complied. When the officer asked Viglione to submit to a second breathalyzer test, Viglione refused. The officer informed him that failure to take the second test would result in a twelve-month suspension of his operating privileges. Viglione responded belligerently, stating that he did not have to and was not going to take the test.
[ 113 Pa. Commw. Page 200]
Viglione blew into the tube twice more, but did not supply a sufficient sample for the machine to operate.
The trial judge concluded that DOT had failed to establish that Viglione was properly warned of the consequences of refusing to submit to the second breathalyzer test. The judge noted that, under the applicable regulation, 67 Pa. Code § 77.24, an officer is required to perform at least two breath tests.*fn1 Observing that refusal to take the second required test constitutes a refusal under section 1547, the trial judge ruled that the officer had the duty to advise Viglione that he was required to submit to two breath tests, and that refusal to do so would result in a twelve-month license suspension. Finding that the record did not clearly establish that the officer warned Viglione that he was required to take two tests, the trial court reversed the license suspension.
[ 113 Pa. Commw. Page ...