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COURTNEY EARLEY v. COMMONWEALTH PENNSYLVANIA (11/10/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 10, 1988.

COURTNEY EARLEY, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE

Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Courtney Earley v. Commonwealth of Pennsylvania, Department of Transportation, No. 87-01832.

COUNSEL

Logan M. Bullitt, for appellant.

Donald H. Poorman, 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 Judge Palladino. Judge MacPhail did not participate in the decision in this case.

Author: Palladino

[ 121 Pa. Commw. Page 65]

Courtney Earley (Appellant) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) which affirmed the suspension of his driver's license by the Pennsylvania Department of Transportation (DOT) pursuant to section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b).*fn1 We affirm.

Appellant was placed under arrest for violating section 3731 of the Vehicle Code, 75 Pa. C.S. § 3731 (driving under the influence). Appellant was advised of his Miranda*fn2 rights, and then requested to submit to a breathalyzer test and warned of the consequences of a failure to do so. Appellant did not assent to a breathalyzer test but requested to talk to his father. Appellant's request to speak to his father was answered in the negative by police. Appellant was then warned numerous times by police that a refusal to submit to a breathalyzer test would result in suspension of his operating privileges. As a result of Appellant's refusal to submit to a breathalyzer test, DOT suspended Appellant's operating

[ 121 Pa. Commw. Page 66]

    privileges pursuant to section 1547(b) of the Vehicle Code.

On appeal to this court,*fn3 Appellant contends that his request to speak to his father, who was an attorney, did not constitute a refusal because police did not advise him that the Miranda right to counsel does not apply to a breathalyzer test.

Appellant relies on Department of Transportation, Bureau of Traffic Safety v. O'Connell, 99 Pa. Commonwealth Ct. 410, 513 A.2d 1083 (1986), petition for allowance of appeal granted, 515 Pa. 587, 527 A.2d 546 (1987). In O'Connell, we stated that a request to consult an attorney in response to a police officer's request to submit to a breathalyzer test constitutes a refusal subject to certain limitations. One such limitation is that when in response to a request to take a chemical test the arrestee inquires "whether he may consult with someone before making a decision," the police officer has a duty to inform the arrestee that the Miranda right to counsel does not apply to the breathalyzer test. Id. at 415, 513 A.2d at 1085. Appellant contends that he requested permission to speak with "someone," namely his father, that he was not advised that the Miranda right to counsel did not apply as required by O'Connell, and that, therefore, his request to talk to his father does not constitute a refusal.

Appellant misinterprets the O'Connell decision. Clearly, O'Connell imposes a duty upon police to inform the arrestee that the Miranda right to counsel does not apply when the arrestee indicates to police

[ 121 Pa. Commw. Page 67]

    that he desires to consult an attorney. As we stated in O'Connell, a police officer does not have an "automatic duty to inform every arrestee that the Miranda right to counsel does not apply to the breathalyzer test." Id. at 415, 513 A.2d at 1085. It is only in the case where an arrestee requests to speak to an attorney before deciding whether to submit to a breathalyzer test that the possibility of confusion regarding the applicability of the Miranda right to counsel exists.

In this case, Appellant did not request to speak to an attorney. Appellant only asked to speak to his father. Police had no way of knowing Appellant's father was an attorney. Therefore, police had no duty to inform Appellant that the Miranda right to counsel did not apply.

To hold otherwise would be to conclude that the police must notify an arrestee that the Miranda right to counsel does not apply whenever an arrestee asks to consult a parent. We decline to reach this result. It is only where the arrestee indicates to police a desire to consult counsel that the police must inform him that Miranda does not apply.

In this case, we conclude that Appellant's request to talk to his father when asked to submit to a breathalyzer test constituted a refusal. Anything less than an unqualified, unequivocal assent to a request to submit to a chemical test constitutes a refusal. Lewis v. Commonwealth, 114 Pa. Commonwealth Ct. 326, 538 A.2d 655 (1988).

Accordingly, we affirm.

Order

And Now, November 10, 1988, the order of the Court of Common Pleas of Montgomery County is affirmed.

Judge MacPhail did not participate in the decision in this case.

Disposition

Affirmed.


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