decided: July 28, 1988.
JEFFREY ALLEN KUBIT, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania v. Jeffrey Allen Kubit, No. SA 963, 1986.
Martin W. Sheerer, for appellant.
Harold H. Cramer, Assistant Chief Counsel, with him, John L. Heaton, Chief Counsel, for appellee.
Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Judge McGinley dissents.
[ 118 Pa. Commw. Page 233]
Jeffrey Allen Kubit (Appellant) appeals from an order of the Court of Common Pleas of Allegheny County upholding the Department of Transportation's (Department) suspension of his license pursuant to Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547, for his refusal to submit to a blood test. We affirm.
On May 1, 1986, Officer Gary Waters of the Ross Township Police was called to the scene of a one-car accident. Officer Waters spoke to a man at the scene, who identified himself as Appellant's brother, and who informed the officer that Appellant had been in an accident and had been taken home by his mother. Upon the officer's arrival at Appellant's house, he questioned Appellant who admitted that he had been the driver of the vehicle involved in the accident. At this time, the officer smelled alcohol on Appellant's breath. The officer then asked Appellant to perform some field sobriety tests which Appellant failed. Consequently, Appellant was placed under arrest and transported to the police station.
[ 118 Pa. Commw. Page 234]
At the police station, Appellant was asked to submit to a breathalyzer test and was warned that his license would be revoked if he failed to consent. Appellant consented, but the machine malfunctioned. Three more times Appellant took the breathalyzer test, but each time the machine malfunctioned. The officer then asked Appellant to submit to a blood test. Appellant refused. Appellant was then warned again about the consequences of refusing the blood test. He again refused. His reason for refusing the blood test was that he had taken enough tests.
Because of the refusal, the Department suspended his driver's license. The suspension was upheld by the court of common pleas. This appeal followed.*fn1
Appellant's first contention is that his arrest was illegal and, thus, he did not have to cooperate with any breath or blood testing requirements imposed by the officer. Assuming arguendo that Appellant's arrest was illegal, his argument must still fail in light of our Supreme Court's decision in Department of Transportation v. Wysocki, 517 Pa. 175, 535 A.2d 77 (1987) where it was held that for the purposes of a driver's license suspension proceeding under Section 1547, the legality of the licensee's "arrest" is irrelevant.
Appellant also asserts that the trial court erred in determining the officer had reasonable grounds to believe Appellant was driving while intoxicated. The evidence here, however, shows that Appellant's vehicle had been in an accident, that he admitted being the driver of the vehicle, and that he smelled of alcohol. Such evidence
[ 118 Pa. Commw. Page 235]
is sufficient to establish reasonable grounds.*fn2 See Department of Transportation, Bureau of Traffic Safety v. Doyle, 103 Pa. Commonwealth Ct. 490, 520 A.2d 917 (1987).
Appellant's next allegation of error focuses on whether he refused the blood test. Appellant asserts that Officer Waters' testimony was conclusory and that the officer did not explain why multiple tests were required. We find the officer's testimony, which was not objected to at the hearing, competent to support the trial court's order. Moreover, Appellant's reason for refusing the blood test was sufficient to constitute a refusal, since this Court has consistently held that any response to a valid request for a breath, urine or blood test substantially
[ 118 Pa. Commw. Page 236]
short of an unqualified, unequivocal assent to take the test constitutes sufficient reason to justify a license suspension under Section 1547. Department of Transportation, Bureau of Driver Licensing v. Goldowski, 110 Pa. Commonwealth Ct. 426, 532 A.2d 923 (1987).
Last, Appellant contends that the breathalyzer operator failed to follow the Department's regulations regarding malfunctioning breathalyzer machines. See 67 Pa. Code §§ 77.24(b), 77.25(4). This argument was not raised before the trial court and is waived. Pa. R.A.P. 302(a).
Now, July 28, 1988, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby affirmed.
Judge McGinley dissents.