Appeal from the Order of the Court of Common Pleas of Adams County, in the case of Commonwealth of Pennsylvania, Department of Transportation v. Dennis J. Flickinger, No. 87-S-874.
Mark David Frankel, Frankel & Associates, P.C., for appellant.
Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellee.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 119 Pa. Commw. Page 316]
Dennis J. Flickinger (Appellant) appeals an order of the Adams County Court of Common Pleas dismissing his appeal from an order of the Pennsylvania Department of Transportation, Bureau of Traffic Safety (DOT), which suspended his operating privileges for one year pursuant to Section 1547(b)(1) of the Vehicle Code (Code).*fn1
On October 24, 1987, at approximately 11:45 p.m., Appellant was arrested for driving under the influence of alcohol and transported to the Gettysburg Borough Police Department for an intoxilyzer test. Prior to administering the test, Officer Grissom of the Gettysburg Police Department explained the test procedure to Appellant. At this time, Appellant signed a consent form which stated that refusal to submit to a breath test would result in a suspension of operating privileges for one year. Also, prior to the test, Officer Grissom informed Appellant that he would have to provide two breath samples in order to complete the test.
Appellant initially agreed to submit to the breath test and at 12:10 a.m. he provided a breath sample. The breathalyzer machine printed out a reading of .273. Appellant would not provide a second breath sample despite the fact that Officer Grissom again explained to him that he would lose his operating privileges for one year if he did not do so. At 12:13 a.m. the breathalyzer machine purged itself. Appellant testified that during this time he was asking Officer Grissom why he had to
[ 119 Pa. Commw. Page 317]
take the second test. Appellant testified that he then agreed to provide a second breath sample but Officer Grissom stated it was too late because the machine had already purged itself. The trial court concluded that by equivocating or questioning the need for a second test, Appellant's actions fell short of the unqualified, unequivocal consent required by Section 1547 of the Code.
Appellant contends that his second refusal to provide a breath sample within the three minute period allotted by the machine is not a refusal pursuant to Section 1547(b)(1) when viewed in light of his subsequent assent to complete the test.*fn2
The applicable regulation appears at 67 Pa. Code § 77.24(b) and reads ...