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REGINA M. WALL v. COMMONWEALTH PENNSYLVANIA (03/14/88)

COMMONWEALTH COURT OF PENNSYLVANIA


filed: March 14, 1988.

REGINA M. WALL, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from Common Pleas Court, Philadelphia County, Honorable Alfred J. Di Bona, Jr., Judge.

COUNSEL

Neil Mittelman, Esq., GEROFF & MITTELMAN, Attorneys for appellant.

Martin B. Burman, Esq., Harold H. Cramer, ASST. COUNSEL, John L. Heaton, CHIEF COUNSEL, Attorneys for appellee.

Honorable Joseph T. Doyle, Judge, Honorable Madaline Palladino, Judge, Honorable Jacob Kalish, Senior Judge

Author: Palladino

Opinion BY JUDGE PALLADINO

Regina M. Wall (Appellant) appeals from an order of the Court of Comm:on Pleas of Philadelphia County which affirmed an order of the Pennsylvania Department of Transportation, Bureau of Traffic Safety (DOT) suspending her motor vehicle operating privileges for one year for failing to submit to a requested chemical test of her blood for alcohol content. We affirm.

Appellant was involved in a motor vehicle accident on September 22, 1985 in Upper Moreland Township. When the police officer arrived at the scene, Appellant was outside her car. Officer McCue testified that he

[ 114 Pa. Commw. Page 399]

    detected the odor of alcohol on Appellant's breath. N.T. at 6. Appellant testified that Officer McCue told her he smelled alcohol on her breath and asked her if she had been drinking, which she admitted. N.T. at 13. The officer administered a field sobriety breath test, using an instrument known as an "alco-sensor." Then Officer McCue arrested Appellant for violating section 3731 of the Vehicle Code, 75 Pa. C.S. § 3731 (driving under the influence) (DUI). Appellant was transported to the police station where she submitted to a breathalyzer test for alcohol. A reading of 0.165 was obtained. Appellant refused to submit to a second breathalyzer test.

DOT notified Appellant on October 14, 1985 that effective November 18, 1985 her license would be suspended for one year for violating section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547, for refusing to submit to a breathalyzer test. Appellant appealed her suspension to the trial court which, after a hearing, affirmed the suspension.

On appeal to this court,*fn1 Appellant contends: (1) that the field sobriety breath test was the equivalent of the first breathalyzer test post arrest for DUI; (2) that the request for a second breathalyzer test at the police station was unreasonable; and (3) that she was not given adequate and sufficient warning that her refusal of the second breath test at the police station would result in a suspension ofher motor vehicle operating privileges as required by section 1547(b)(2) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(2).

EFFECT OF FIELD SOBRIETY TEST

Appellant argues that she was under arrest prior to the field sobriety breath test being administered and therefore that breath test must be considered as one of the chemical tests for alcohol she is deemed to have consented to pursuant to section 1547(a) of the Vehicle Code, 75 Pa. C.S. § 1547(a). Appellant bases her argument on the well-settled principle that the term "arrest" in section 1547(a) is merely a reference to the physical act of restraint and is not dependent upon the validity of the arrest. Appellant is correct in her statement of the law. See Glass v. Department of Transportation, Bureau of Traffic Safety, 460 Pa. 362, 333 A.2d 768 (1975). The question of whether a sobriety breath test in the field, using a chemical test for alcohol, is deemed one of the two chemical breath test required by DOT regulation 67 Pa. Code § 77.24(b)(1),*fn2 is a matter of first impression.

Section 1547(k) of the Vehicle Code provides:

A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test in a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary

[ 114 Pa. Commw. Page 401]

    the exigent circumstances. However, the court indicated that in order to justify a second intrusion the police officer must establish circumstances which support the reasonableness of a second test. Otherwise, it would be an unreasonable search in violation of our Constitution. In 67 Pa. Code § 77.24(b), in setting forth the procedure for conducting any breath test, it is provided that two consecutive breath tests be given, with the lower of the two actual tests to be used for prosecution.

In Bush v. Commonwealth, Pa. Commonwealth Ct. , A.2d (No. 635 C.D. 1986, filed January 14, 1988), we held that this procedure requiring two consecutive tests establishes a scheme intended to ensure valid test results and that even though two consecutive tests are required, the request for the second test is per se reasonable.

However, in the instant case, unlike Bush, where only one test involving the suspension was requested, the appellant submitted notonly to that prearrest breath test, but was then requested to take the other test as well.

While section 1547(b) of the Vehicle Code provides that the two procedures are for independent purposes, the first for criminal prosecution and the second for civil purposes (suspension of license), such independence of purpose would not justify a second test to meet the requirement of reasonableness where one test would suffice. The sole purpose for the second test (suspension of license) was to enhance that possibility. The reasonableness of this search should not depend on the proceeding involved. The circumstances are such that the second request for the breath test is unreasonable.


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