Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Daniel C. Quinn, No. 84-11432.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, Jay C. Waldman, General Counsel, for appellant.
H. David Spirt, for appellee.
Judges Doyle, Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Concurring Opinion by Judge Palladino.
[ 114 Pa. Commw. Page 622]
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT), appeals from an order of the Court of Common Pleas of Montgomery County which sustained the appeal of Daniel Charles Quinn (appellee) from the suspension of his operating privileges for refusal to submit to a blood test. We reverse the court of common pleas and reinstate the suspension of appellee's operating privileges.
On June 9, 1984, appellee was arrested on the charge of driving a motor vehicle while under the influence of alcohol. Following his arrest, appellee agreed to take a breath test, but the breathalyzer machine at the Towamencin police station malfunctioned. Officer Jan Wosiak of the Towamencin police force then decided to take appellee to the Lansdale police station where there was a functional breathalyzer machine.
While enroute to the Lansdale police station, Officer Wosiak decided to have a blood test administered and transferred appellee to North Penn Hospital for that purpose. Appellee refused to give blood but was willing to submit to a breathalyzer test as he had indicated before.
The trial court held that because appellee had consented to a breathalyzer test he could not be called upon
[ 114 Pa. Commw. Page 623]
to submit to a blood test when it turned out that the breath test device was inoperative.
Section 1547(a) of the Vehicle Code, as amended, 75 Pa. C. S. § 1547(a) states:
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 ...