Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Commonwealth of Pennsylvania v. Joseph R. Stay, No. 85-6242.
Harold H. Cramer, Assistant Counsel, with him, John L. Heaton, Chief Counsel, for appellant.
M. Emmons Stivers, for appellee.
Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.
[ 114 Pa. Commw. Page 533]
The Department of Transportation, Bureau of Driver Licensing, (DOT), appeals from an order of the Court of Common Pleas of Delaware County which sustained the appeal of Joseph R. Stay (appellee) from the suspension of his driver's license by DOT for a period of one year due to his refusal to submit to a breathalyzer test.
On March 24, 1985, Corporal John Singley, a member of the Collingdale Police Department, observed appellee operating a motor vehicle which had made an illegal turn. He pursued and stopped the appellee. As he approached the vehicle, he smelled the odor of alcohol emanating from the vehicle. Appellee was unable to comply with his request for production of his license
[ 114 Pa. Commw. Page 534]
and registration card. He responded to questions with slurred speech and was unable to walk a straight line. Corporal Singley then arrested the appellee for driving under the influence of alcohol and transported him to the Collingdale Police Station. There was no breath testing equipment located at said station. While at the Collingdale Police Station, appellee was requested two or three times to submit to a breathalyzer test. At the time these requests were made, appellee was informed that his license would be suspended if he refused to take the test. The appellee, however, refused to submit to such a test each time. Appellee was then transported to the Sharon Hill Police Station, where there was a certified breath testing device, and placed in a cell. After being placed in the cell, appellee requested an opportunity to submit to the breathalyzer test. Corporal Singley, however, refused to administer the test. Instead, he subsequently submitted an affidavit of refusal.
Appellee's license was then suspended by DOT. He then appealed to the trial court, which initially dismissed his appeal. However, after expressly granting reconsideration of the order dismissing the appeal within thirty days thereof, the trial court reversed its position and sustained the appeal. This appeal followed.
[ 114 Pa. Commw. Page 535]
The Commonwealth here contends that the trial court erred in holding that because the officer could not have administered the test at the Collingdale Police Station due to the lack of equipment there, appellee's indication that he would not take the test was a nullity, such that there was no refusal. Our scope of review where the trial court has reversed a license suspension for failure to submit to a breathalyzer test is limited to determining whether the trial court's findings were supported by competent evidence, and whether it committed an error of law or manifestly abused its discretion. Department of Transportation, Bureau of Traffic Safety v. Page 535} Dauer, 52 Pa. Commonwealth Ct. 571, 416 A.2d 113 (1980).
This Court has consistently held that any response substantially short of an unqualified, unequivocal assent to take a breathalyzer or blood test constitutes a refusal to submit to the test. Hando v. Commonwealth, 84 Pa. Commonwealth Ct. 63, 478 A.2d 932 (1984). A refusal to take a breathalyzer test is not vitiated by a subsequent request to take a test. Cunningham v. Department of Transportation, 105 Pa. Commonwealth Ct. 501, 525 A.2d 9 (1987). Thus, once there is a refusal to take the breathalyzer test, that initial response controls and no further examination of what a licensee later stated need be considered. Department of Transportation, Bureau of Traffic Safety v. Krishak, 91 Pa. Commonwealth Ct. 307, 313, 496 A.2d 1356, 1359-60 (1985). Accordingly, in the present case, ...