decided: September 29, 1988.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
DAVID SCOTT MCCAFFERTY, APPELLEE
Appeal from the Order of the Court of Common Pleas of Clarion County in the case of Commonwealth of Pennsylvania v. David Scott McCafferty, No. 271 Civil 1984.
Melissa K. Dively, Assistant Counsel, with her, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.
No appearance for appellee.
Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.
[ 120 Pa. Commw. Page 154]
This is an appeal by the Department of Transportation, Bureau of Driver Licensing (Department) from an order of the Court of Common Pleas of Clarion County which reversed the action of the Department in suspending the operating privileges of David Scott McCafferty (Licensee) for refusing to take a breathalyzer test.
[ 120 Pa. Commw. Page 155]
show that the officer gave the motorist an adequate warning that the consequence of refusal will be the suspension of his operating privileges. Id. The question of warning is the only matter at issue here.
The trial court found that the police officer testified that he told Licensee that "he would be subject to suspension" if he refused to take the test. The trial court reasoned that the word "would" expresses merely a possibility or a contingency and, thus, was not definite enough to meet the warning requirement which exists in Section 1547(b) of the Vehicle Code. Until recently that was the state of the law. See Department of Transportation, Bureau of Traffic Safety v. Landau, 91 Pa. Commonwealth Ct. 646, 498 A.2d 47 (1985), which held that the language "would be subject" to a suspension was inadequate to apprise a licensee of the certainty of suspension after refusing a breathalyzer test. Landau, however, was recently overruled in Kelly v. Commonwealth, 113 Pa. Commonwealth Ct. 1, 536 A.2d 465 (1988), wherein this Court specifically ruled that the phrase "would be subject to" was sufficient as a matter of law to apprise the licensee of the consequences of his refusal. Accordingly, because the warning was sufficient under Kelly, the trial court committed error in overruling the Department's action. For this reason the order of the court of common pleas is reversed.
Now, September 29, 1988, the order of the Court of Common Pleas of Clarion County in the above-captioned matter is hereby reversed and the Department's suspension is reinstated.
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