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COMMONWEALTH PENNSYLVANIA v. BUDDY A. HUNSINGER (06/21/88)

submitted: June 21, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
BUDDY A. HUNSINGER, SR., APPELLANT



Appeal from the Judgment of Sentence of September 10, 1987, in the Court of Common Pleas of Montour County, Criminal Division, at No. 106, 1985.

COUNSEL

Michael Dennehy, Danville, for appellant.

George O. Wagner, District Attorney, Danville, for Com., appellee.

Montemuro, Beck and Popovich, JJ.

Author: Beck

[ 379 Pa. Super. Page 198]

The issue is whether the trial court acted properly in admitting evidence that appellant initially refused to take a breathalyzer test where the appellant later agreed to the test.

We conclude that the trial court acted properly in admitting the evidence, and we affirm the judgment of sentence.

[ 379 Pa. Super. Page 199]

Appellant was convicted of one count of driving under the influence under 75 Pa.Cons.Stat.Ann. § 3731(a)(1) (Purdon 1987) and was sentenced to three to twenty-three months imprisonment in the Montour County jail. The testimony at trial established that appellant at least twice refused to submit to a breathalyzer test, but then agreed to take the test. Among other issues, appellant asserts that the suppression court erred in not suppressing evidence of his refusal to take the breathalyzer test.

Appellant concedes that the law is established that initial refusal to take the test followed by later agreement is admissible in a proceeding for suspending a driver's license but he argues that there should be a different standard for defining a "refusal" for criminal trials. We disagree.

The statute which addresses the admissibility at trial of a refusal to submit to chemical testing for blood alcohol content provides as follows:

In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the fact that the defendant refused to submit to chemical testing as required by [§ 1547] subsection (a) may be introduced in evidence along with other testimony concerning the circumstances of the refusal. No presumptions ...


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