Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. Edwin A. Jackson, No. SA 547 of 1983.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Cornell J. Mickens, for appellee.
Judges MacPhail and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.
[ 113 Pa. Commw. Page 254]
The Department of Transportation, Bureau of Traffic Safety (Department) has appealed from an order of the Court of Common Pleas of Allegheny County which sustained the appeal of Edwin A. Jackson (Licensee) from the Department's one-year suspension of his driver's license. We reverse.
The record reveals that, in the early hours of August 20, 1983, Licensee was placed under arrest for driving under the influence. The arresting officer testified that he detected both the odor of alcohol on Licensee's
[ 113 Pa. Commw. Page 255]
breath and freshly burned marijuana. Notes of Testimony (N.T.) at 5, Reproduced Record (R.R.) at 10a. Licensee was subsequently transported to the police station where he was requested to submit to a breathalyzer test.*fn1 Licensee complied and registered a positive reaction for alcohol, although the record does not indicate the blood alcohol level which was thereby established. Believing that Licensee might also have been under the influence of a controlled substance which would not be detected by the breath test, the officer then requested Licensee to submit to a blood test. Licensee refused to submit to the second chemical test and the Department, as a result, ordered that his operating privilege be suspended for one year pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C. S. § 1547(b). On appeal, the common pleas court ruled that the police officer's request for a second chemical test was invalid and that "[i]f the officer suspected both alcohol and drugs, he should have requested a blood or urine test in the first instance, rather than subject the defendant [Licensee] to more than one test." The court, accordingly, sustained Licensee's appeal and the instant appeal by the Department followed.*fn2
The issue in this case requires interpretation of the recent plurality decision of our Supreme Court in Department of Transportation v. McFarren, 514 Pa. 411,
[ 113 Pa. Commw. Page 256525]
A.2d 1185 (1987). The Court in McFarren analyzed the validity of multiple chemical testing under Section 1547(a) of the Vehicle Code, 75 Pa. C. S. § 1547(a), which was amended effective January 15, 1983 to read as follows:
Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person ...