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filed: June 23, 1988.


Appeal from Common Pleas Court, Berks County; Honorable Elizabeth Ehrlich, Judge.


Peter David Maynard, Esq., Wyomissing, Pa., for appellant.

J. Matthew Wolfe, ASST. COUNSEL, Philadelphia, Pa., Harold H. Cramer, ASST. COUNSEL, John L. Heaton, CHIEF COUNSEL, Harrisburg, Pa., for appellee.

Honorable John A. MacPHAIL, Judge, Honorable Joseph T. Doyle, Judge, Honorable Emil E. Narick, Senior Judge

Author: Doyle


This is an appeal by John Carmen Marmo (Licensee) from an order of the Court of Common Pleas of Berks County which affirmed the suspension of Licensee's motor vehicle privileges by the Department of Transportation (DOT) for one year pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. ยง 1547. We reverse.

On December 23, 1983, Licensee was involved in an automobile accident. Officer Robert Dunn responded to the scene, and found Licensee staggering about, with a strong odor of alcohol on his breath, glassy eyes, and very argumentative. As a result, the officer placed Licensee under arrest for driving under the influence of alcohol. The following is the sequence of events as recounted from the direct testimony of Officer Dunn, the only witness called by DOT to establish its case:

I finally handcuffed him and put him in the police car and transported him to the Mt. Penn Police Department, sat him in front of the instrument. I again told him he was under arrest for DUI.

Q: Did you say anything about the informed consent law?

A: I said, "Don't forget, if you don't take the test, you will lose your license for a year." So then he had to go to the bathroom and again I told him about taking the test and he said now he wanted to go to the hospital. At the hospital he was asked to take a [blood] test. He said he would. The doctor in the emergency read him the form, and he did not take the doctor's word for it. He wanted take the test and he said he wasn't finished reading it, so we waited a couple more minutes, asked if he was ready to take the test and he said he still hadn't finished reading it. I considered it a refusal.

(N.T. 6).

DOT thereupon suspended Licensee's driver's license, pursuant to Section 1547 of the Code, and Licensee appealed to the court of common pleas. That court sustained DOT's suspension of Licensee's operating privileges stating that Licensee's conduct at the police station constituted a refusal to submit to chemical testing.

Licensee timely filed an appeal to this Court. Although Licensee deposited one-half of the estimated charge for the transcript with the County's Prothonotary, he failed to obtain the required order directing the court reporter to transcribe the notes of testimony. The matter lay dormant until the trial court forwarded a memorandum opinion on October 1, 1986 suggesting that the appeal be dismissed for failure of Licensee to order the transcript in accordance with Pa. R.A.P. 1911(a). This Court, by order dated October 20, 1986, directed Licensee to comply with Pa. R.A.P. 1911(a), or suffer dismissal of his appeal. Licensee promptly complied with that order. The Prothonotary of Berks County then transmitted the record to this Court, without the trial court having had an opportunity to file an opinion pursuant to Pa. R.A.P. 1925. This Court then remanded the record back to the trial court so that an opinion could be written. On January 15, 1988, said opinion was rendered and both parties were given an opportunity to submit supplemental briefs; neither party has elected to do so.

The Commonwealth has inexplicably conceded that the refusal at the hospital was not a refusal under the Code. Thus, the sole issue before this Court is whether Licensee's affirmative response to a request to submit to a breathalyzer test, coupled with a request to be taken to the hospital, amounted to a refusal to take the test.*fn1

It is well-settled that anything substantially less than an unqualified, unequivocal assent to take a breathalyzer test amounts to a refusal under Section 1547(b) of the Code. Hando v. Commonwealth, 84 Pa. Commonwealth Ct. 63, 478 A.2d 932 (1984). DOT cites cases wherein it has been held that a refusal to take a breath test need not be expressed in words, but can be implied from a licensee's actions, and further, that any delay tactics on the part of the licensee need not be tolerated by the police and can constitute a refusal. See Department of Transportation v. Bureau of Highway Safety v. O'Rourke, 25 Pa. Commonwealth Ct. 580, 361 A.2d 496 (1976). We agree completely with this assessment of the law but must consider this law in conjunction with the facts.

The trial court found that Licensee's "demand" to go to the hospital, without complying with the breathalyzer test, was the equivalent of a refusal. Upon review, we cannot find substantial evidence to support this finding. The only evidence on record to support this finding is the testimony of Officer Dunn, which is quoted above. Officer Dunn merely stated that Licensee "said he now wanted to go to the hospital," and apparently he was taken to the hospital without further discussion. This Court cannot, without more evidence, uphold a finding that Licensee demanded to go to the hospital in an attempt to delay taking a breathalyzer test. Therefore, we cannot agree that his actions constituted a refusal.

Furthermore, this Court has recognized that where a police officer gratuitously offers a licensee a subsequent opportunity to take one of the chemical tests enumerated in Section 1547(a), after a prior refusal, the prior refusal is waived. See Department of Transportation, Bureau of Traffic Safety v. Krishak, 91 Pa. Commonwealth Ct. 307, 496 A.2d 1356 (1985); see also Books v. Department of Transportation, Bureau of Driver Licensing, Pa. Commonwealth Ct. , , 530 A.2d 972, 974 (1987) (Blatt, J., concurring). Thus, even assuming arguendo that Licensee's conduct at the police station constituted a refusal, that refusal was waived when Officer Dunn offered Licensee an opportunity to submit to a blood alcohol test.

Accordingly, we must reverse the order of the trial court.


NOW, June 23, 1988, the order of the Court of Common Pleas of Berks County, dated December 4, 1985, is hereby reversed and the Department of Transportation is directed to reinstate Licensee's operating privileges.

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